- (1.) ASHOK Bhushan, J. Learned Counsel for both the parties have been heard.
(2.) BY this writ petition, the petitioner has prayed for quashing three orders, firstly order dated 13th March, 1980 (Annexure-1 to the writ petition) by which as a result of summary Court martial, the petitioner has been sentenced with six months rigorous imprisonment in civil prison and dismissal from service, secondly the order dated 28th April, 1980 by which sentence of three months of rigorous imprisonment was remitted but the punishment of dismissal was maintained and thirdly the order dated 20th May, 1986 by which the petitioner's representation to take back him in service was rejected. Brief facts necessary for deciding the issues raised in the writ petition are; the petitioner was enrolled as Gunner in Indian Army in the year 1974 and at the relevant time he was posted in State of Gujarat. On 1st November, 1979 the petitioner look twelve days' leave to go his native place, i. e. , District Kanpur Nagar (State of Uttar Pradesh ). He sent a telegram for extension of his leave on which twelve days further leave was granted but thereafter the petitioner further stayed without any information and came back to join in the regiment after 58 days. A summary Court martial was held on 15th March, 1980 and the petitioner was found guilty of charge "without sufficient cause overstaying leave granted to him". The petitioner was sentenced to undergo six months rigorous imprisonment in civil imprisonment and was also dismissed from service as a result of summary Court martial. The petitioner was handed over to jail authorities of Surendra Nagar, Gujarat to undergo imprisonment. On an application made by the petitioner, by an order of Commander Headquarters 38 Artillery Brigade three months sentence was remitted but the punishment of dismissal was not changed. On 13th March, 1986 the petitioner sent an application to the Chief of the Army Staff praying for taking him back in service by setting aside the summary Court martial. The petitioner's prayer for taking him back in service was refused and vide letter dated 20th May, 1986 he was communicated at his village address Kanpur that he having been dismissed after summary Court martial cannot be taken back in service. Sri Subodh Kumar learned Counsel appearing for the Union of India has raised a preliminary objection regarding maintainability of the writ petition in this Court. Sri Subodh Kumar contended that petitioner at the relevant time having posted in the State of Gujarat where the petitioner was awarded imprisonment and dismissal, there is no territorial jurisdiction of this Court to entertain the writ petition for challenging the summary Court martial and consequent dismissal from service in this Court. Reliance has been placed by Sri Subodh Kumar on the Full Bench judgment of this Court in 2002 (5) A. W. C. 4542, Rajendra Kumar Mishra v. Union of India & Ors.
(3.) SRI V. S. Pujari, learned Counsel for the petitioner contended that part of cause of action arose in the State of Uttar Pradesh, hence this writ petition is fully maintainable in this Court. He submitted that petitioner's prayer for taking back him in service made to the Chief of the Army Staff was rejected and the said order was communicated to the petitioner at Kanpur (State of Uttar Pradesh), hence part of cause of action arose within the territorial jurisdiction of this Court and the writ petition is fully maintainable in this Court. Learned Counsel for the petitioner has placed reliance on the judgment of the Apex Court reported in AIR 1963 SC 1681, Union of India & Anr. v. SRI Ladulal Jain, judgment of this Court in Writ Petition No. 5118 of 1981, SRI Rameshwar Prasad Gupta v. Union of India & Ors. and the judgment of Apex Court reported in 2006 (5) Supreme 751, Om Prakash SRIvastava v. Union of India & Ors. Learned Counsel for the petitioner further contended that two punishments first imprisonment for six months and second dismissal from service could not have been awarded to the petitioner under Section 71 of the Army Act, 1950 and the award of two punishments is without jurisdiction and the petitioner was entitled to be taken back in service. I have considered the submissions of learned Counsel for the parties and perused the record.;