- (1.) R. B. Misra, J. In this writ petition prayer has been made to quash the order dated 22-6-93 (Annexure-4 to the writ petition) and the order dated 30-11-93 (Annexure-6 to the writ petition) and further prayer has been made for directing the respondents to reinstate the petitioner to the post he was holding prior to the dismissal with consequential benefits.
(2.) IT appears that the petitioner had assaulted to No. 9086405 NK/gd Jas Poul of 2 Jakli C/o 56 A. P. O. , his superior officer at 306 Fd. Ambulance C/o 56 A. P. O. on 10 February 1993 during a fight in the Unit Cook house regarding issue of food. The Summary at evidence was recorded as per Unit part I Order No. 395/93 dated 15th May, 1993. The petitioner absented himself from unit from 5th March 1993 to 13 May, 1993. An summary of evidence could not be recorded in his absence period since his presence during recording of summary of evidence was mandatory. The essential witness L/nk CH Makhan Din 2/nk Mohd. Afsar and Nk C. D. Jagpal who belong to Unit other than 306 Fd. Amb. Through at the time of occurrence of an evidence were attached to 306 Fd. Amb. Were sent back to their respective units after initial Court of inquiry since the petitioner absented himself summary of evidence was started on 25th May, 1993. Tentative charge sheet was issued by the C. O. Col. G. N. Kutti on 25 May of 1993. IT was followed by recording of summary of evidence by Lt. Col. K. P. Nandi respondent No. 4 by the order of Col. G. N. Kutti vide unit part 1 Order No. 396/93 dated 15 May, 1993. The accused was given full opportunity to cross examine any witness and make statement in his defence and also to produce any witness in his defence. After completing summary of evidence charge-sheet issued to the petitioner on 10 June, 1993 under Section 5, Army Act, 1950 Section 40 (a ). As per Army Rule 22 the charge against the petitioner was heard by Commanding Officer in his presence which was followed by summary of Evidence recording by Lt. Col. K. P. Nandi by order of Col. G. N. Kutti vide Unit Part 1 Order No. 395/93. The petitioner was given full liberty to cross examine the witness and to make statement in his defence and to produce any witness in his defence at the hearing of charge as well while recording of summary of evidence. After the summary of evidence charge sheet was served on accused at the time of summary Court martial. The accused pleaded guilty of the charge so the prosecution witnesses were not called by the Court as per procedure. Summary of Court Martial was conducted in the presence of Independent witness No. Mr. 05786 Maj. A. K. Sharma and JC 180983 LS 46 Mj. Jagdish Rai. As per the procedure Dr. 10363 Y. Maj. G. Singh was detailed as friend of the accused during the whole proceeding of summary court Martial to assist the accused to defend himself (vide Original IAFD 907 ). As per paragraph C of IAFD 907 the accused was asked to produce any witness in his defence and also to make any statement to which he declined. As per the provision of Army Act Section 116 in summary Court martial commanding officer is alone the Court So Lt. Col. K. P. Nandy in capacity, Offig. C. O. was the court and the sentence of dismissal was well within his power. , therefore, it is denied that he was the judge of his own case. Moreover Col. G. N. Kutti was at the time of summary Court martial on casual leave and away from Bareilly so there is no question of any conspiracy between Col. G. N. Kutti and Lt. Col. K. P. Nandy. The accused had voluntarily pleaded guilty to the charge which was recorded accordingly after explaining him the provision of Army Rule 115. The petitioner was dismissed from service for the charge framed and also in the back ground of his 7 red ink entries in his defaulter sheet page 1 of 1 A. F. D. 907. The petitioner is a habitual offender and was unfit of service in the army. Learned Counsel for the petitioner has submitted that: (i)Evidence does not establish the prosecution case. (ii) At the most the offence as admitted by the petitioner is simply of catching hold of the collar of G. D. Jaspaul and asking him to go out of the dining hall. (iii) The injury to the toe and the nail having gone off from the toe is not also explained and medical evidence is contradictory to the version of the case as taken by Jaspaul. (iv) The sentence is too excessive and deserves to be reduced to forfeiture of pay and allowances or forfeiture of service for the purpose of increased pay coupled with severe reprimand. (v) Rule 115 of the Army Rules has not been fully complied with. (vi) Appellate order is non-speaking order. Ground No. 7 of Memo of Appeal clearly shows that the plea guilty had to be given under duress of the Presiding Officer, K. P. Nandi.
(3.) ACCORDING to the petitioner the judicial review power of the High Court may be invoked in the facts and circumstances to quash the dismissal order in the light of the judgment AIR 1987 SC 2386, Ranjit Thakur v. Union of India and Others, however the decision of the Supreme Court in Ranjit Thakur (supra) is not applicable in the present case as the procedure of Court martial in the present case is not based on irrationality and perversity, therefore, the quantum of punishment cannot be said to be disproportionate to the offence as it does not be so disproportionate to the offence as it does not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. On the other hand learned Counsel for the respondents has relied upon the decision of Ruval Kumar Vasave v. Chief of Army Staff, Army Head Quarters, New Delhi and Others, where the High Court was said to have no power to interfere in the finding of General Court Martial.;