SHISHIR KUMAR, J. - (1.) BY means of the present writ petition the petitioner has approached this Court for issuing a writ of certiorari summoning the record of the impugned Summary Court Martial proceedings and quash the same. The further relief claimed in the writ petition is to quash the order dated 12-3-1997, Annexure-1 to the amendment application and a writ of mandamus directing the respondents to reinstate the petitioner with all consequential benefits.
(2.) THE facts arising out of the writ petition are that the petitioner was enrolled in the Army on 25-3-84. Then the petitioner was posted at Srinagar. Subsequently, the petitioner has served as Artillery Records, Nasik Road Camp from 28-10-1987 to 31-7-91 and from August 1991 to 15-8-94 at 17, Station Regiment. The petitioner joined Headquarter 31 Artillery Brigade located at Jhansi on permanent posting on 25-8-94. The petitioner while serving in 175, Field Regiment has availed his leave and after posting to 31 Artillery Brigade had asked for 30 days part of annual leave to be debited to the year 1995 and the same was sanctioned. It transpired subsequently that the petitioner has availed the excess leave and there was no entry. Then the petitioner was directed to show cause regarding his availing excess leave. A charge-sheet was issued to the petitioner and after recording the summary of evidence a Summary Court Martial as provided under the Act was held against the petitioner. The first charge against the petitioner was under Section 63 of the Army Act to the effect that at Jhansi on 27-8-1994 when interviewed by Lt. Col. N. Prasad stated that he had not availed his earned (annual) leave for the year 1994, which statement as he was aware was false. The second charge against the petitioner was that on 3-10-1984, the petitioner improperly proceeded on 35 days part of earned leave for the year 1994 knowing fully well that he had already availed his full-earned leave for the said period. The third charge against the petitioner was that on 31-12-1994 the petitioner improperly proceeded on 15 days part of earned leave for the year 1994 knowing fully that he had already availed his full earned (Annual) leave for the said year. It has been stated by the petitioner that the charges against the petitioner were levelled on the aforesaid dates and the Summazy Court Martial which has been held that was totally improper without following the proper procedure as provided under the Act and rules. It has further been stated that the summary of evidence reveals non-compliance of Rule 23 and the Army Rules 33 and 34 have been violated. The petitioner has not been allowed to have defending officer of his choice as provided under Rule 129 of the Army Rules. It has further been stated that there is no compliance of Rule 115 of the Army Rule. The total Court Martial proceedings have been concluded in a hasty manner on the same day, therefore, the same is liable to be set aside. It has further been argued that the appeal filed by the petitoner under Section 164(2) of the Army Act has been dismissed by the authority without assigning any reason.
(3.) NOTICES were issued and a counter affidavit has been filed. It has been stated in the counter affidavit that the petitioner joined the Headquarter 31st Army Brigade at Jhansi on permanent posting on 25-8-94. In due course of time his documents were received from the previous unit. Since the petitioner was a clerk incharge of sub unit responsible for entries in documents and publication for Part-2 orders, no entry was made in his movement order. As such he was granted leave for 35 days part of annual leave from 3-10-1994 to 6-11-1994. Again in December 1994 when he requested for balance of leave, he was granted leave for 15 days from 31st Dec. 1994 to 14th January 1995. It is submitted that on receipt of part-2 orders from Headquarters Nasik Road Camp it was observed that the petitioner had availed the annual leave twice. Thus grant of excess leave had taken place in 1994. It was then the Unit came to know about the petitioner's having obtained leave fraudulently while in Headquarter 31st Artillery Brigade. A charge-sheet was issued to the petitioner and a charge was heard under Army Rule 22 and the proceedings were recorded by OC Troops Headquarter 31st Artillery Brigade to record summary of evidence. The summary of evidence was recorded from 13-7-95 twice strictly as per Army Rule 23. Then the case was sent to the D.J.A.G. Headquarter 21 Crops, for advice and it was intended to try the petitioner by Summary Court Martial. On receipt the additional summary of evidence was recorded on 23-8-95 and the petitioner was tried by the Summary Court Martial. The petitioner pleaded guilty of the charges which were levelled against the petitioner in the charge-sheet and a note to that effect was incorporated and accordingly the trial proceeded on plea of guilty. The petitioner was awarded a punishment (a) to be reduced to rank and (b) to be dismissed from service.;