- (1.) BY means of this writ petition, moved under Article 226 of Constitution of India, the petitioner has sought writ in the nature of mandamus command ing the respondents to reinstate the pe titioner in service with all consequential benefits.
(2.) HEARD learned counsel for the parties. Brief facts of 'the case, as nar rated in the writ petition, are that the petitioner got enrolled in the Corps of Engineers of the Regular Army as a Driver on 22nd May 2003. He was sent for training to Training Battalion, Bengal Engineers Group, Centre Roorkee, under the command of respondent no,2. It is alleged that the petitioner com pleted the basic military training but on 6th May 2004, he developed pain in the abdomen and got admitted in Military Hospital, Roorkee. It is further alleged that on 11th May 2004, petitioner re ceived a telephonic message from Sonepat that some hooligan had tried to rape his younger sister. In these cir cumstances, he took discharge from Mili tary Hospital and after informing his Senior JCO, he left to his native place Sonepat. On reaching home, he en quired about his sister and the offender. He came back on 18th May 2004 to Military Hospital, Roorkee, for further treatment as he was still having pain in his abdomen. On 20th May 2004, ac cording to the petitioner, after getting discharge Jrol'11. Military Hospital, he reported back to the Battalion. There after, petitioner continued his training till, 21st May 2004. However, on 27th July 2004. petitioner was arrested by Haryana Police in a case lodged against him. He remained in judicial custody in civil jail on charge of rape. Meanwhile, on 17th March 2005, the petitioner was served with a show cause notice, direct ing him to explain by 31st March 2005, as to why he should not be discharged from service under the Army Order 29/ 80, revised Army Order 28/2001/ov read with Army Rule 13 (3) (IV ). It is further stated in the writ petition that the peti tioner could not reply said notice. On 13th April 2006 petitioner got acquitted from the court of the charge levelled against him. However, when he came on 19th April 2006 to report to the Bat talion, he was informed that he has al ready been discharged from the service. Hence, this writ petition. On behalf of the respondents counter affidavit has been filed. It is admitted in the counter affidavit that the petitioner got enrolled in the Army on 22nd May 2003 through recruitment office Charkhi Dadri. It is also admitted that petitioner remained in Military Hospital, Roorkee, w. e. f. 6th May 2004 till 11th May 2004, for pain in his abdomen. It is also admit ted in the counter affidavit that show cause notice was served on the petitioner, The rest of the contents of writ petition as stated are not admitted. It is stated in the counter affidavit that instead of reporting, to duty on 11 th May 2004, the petitioner remained absent without leave from 12th May 2004 to 18 (h May 2004 by forging the discharge slip which was purported to have been issued by the Military Hospital, Roorkee. It is further stated in the coun ter affidavit that on 18th June 2004 a Police party from Police Station Gohana, District Sonepat, came to the training Battalion along with non-bailable warrant, issued by Judicial Magistrate against the petitioner for his arrest in respect of the FI. R. No. 46 dated 16th May 2004, re lating to offences punishable under Sec tions 363, 366a and 3761. PC. It appears that the petitioner was arrested and pro duced before the Judicial Magistrate, Gohana. Meanwhile, according to the re spondents, two show cause notices were issued to the petitioner. The reply was given by the petitioner on 7th April 2005. However, the same was not found to be satisfactory. Thereafter, in view of the pe titioner's involvement in the criminal case, he was discharged from the Army under Rule 13 (III) (IV) of Army Rules, 1954, a copy of which is Annexure CA-6 to the counter affidavit. It is further stated in the counter affidavit that a court of inquiry in vestigated the matter, relating to absence of the petitioner from duty after his dis charge from Military Hospital.
(3.) IN the rejoinder affidavit the petitioner has reiterated the averments made in the writ petition. The first objection raised on be half of respondents against this writ petition is that the petitioner has not sought quashing of the discharge order from Army as such no order of rein statement can be passed. In reply to this, learned counsel for the petitioner stated that he has not been served with the discharge order (copy of the dis charge order is annexed as Annexure 6 to the writ petition ).;