D.S. Sinha, J. - (1.) This petition, under Article 226 of the Constitution of India, is directed against the order dated 23-3-1982, passed by the Officer Commanding, Military Hospital, Bhuj, in the Summary Court Martial proceedings convened on the basis of the charge-sheet dated 23-3-1982, whereby the petitioner has been sentenced to six months rigorous imprisonment and dismissed from service.
(2.) At the relevant time, the petitioner was serving with the Military Hospital, Bhuj, as a regular Soldier. Allegedly, the petitioner was found in improper dress while on duty in the Medical Inspection Room (P. P. C. D.) of the Hospital on 16-3-1982 and it was an offence punishable under Section 63 of the Army Act, 1950 (hereinafter referred to as the Act). After due trial the petitioner was awarded to pay fine for seven days on 20-3-1982. After the punishment was awarded the petitioner had quietly run away from the hospital during duty hours for which he was apprehended and marched before the Commanding Officer on the same day i.e., on 20-3-1982. When the petitioner was marched before the Commanding Officer he was asked as to why he had run away from duty. It is asserted that the petitioner was defiant and tended to be insubordinate by stating that he would not accept punishment and wanted to see the higher authorities. He was apprised of the correct procedure in that regard and cautioned not to run away from the place of his duty without prior permission. On 22-3-1982 the petitioner wanted to have an interview with the Commanding Officer. He was, therefore, marched before the Commanding Officer. At this stage the petitioner said that he wanted to consult the Medical Officer because he got headache from time to time. The Commanding Officer, therefore, directed the Senior J.C.O. to take the petitioner to the Medical specialist for thorough check up and treatment. While on way to the office of Medical specialist the petitioner suddenly ran out from the hospital. He was subsequently apprehended out side the unit and marched before the Commanding Officer. The petitioner was told of the offence of running away from the Unit without permission on two occasions i.e., on 20-3-1982 and again on 22-3-1982. The petitioner again expressed his desire to see the higher authorities. The petitioner had already been, earlier, advised the correct procedure and cautioned against leaving the unit without permission. However, according to the respondents, warning and earlier lighter punishment had no effect on the behaviour of the petitioner and he was showing more and more defiance. The Commanding Officer, therefore, awarded the petitioner 14 days' Rigorous imprisonment in Military custody under Section 39 (d) of the Act. The petitioner kept on delaying his lodging into the military cell with defiance upto the evening and only with great difficulty he could be taken to the military cell on 22-3-1982. On his arrival into military cell on 22-3-1982 the petitioner refused to take his meal brought before him with a view to get his punishment quashed. The refusal of the meal was reported to the duty Medical Officer. Next day the petitioner was marched before the Commanding Officer and was asked if he had refused the meal on the previous evening which was Monday i.e., 22-3-1982. The petitioner replied in affirmative. On 23-3-1982 again the petitioner was ordered to eat food placed before him as he had refused to take his morning break-fast and had also not taken his meal in the previous evening. The petitioner again did not eat the food placed before him. He was, therefore, the Commanding officer for refusal to eat his food. On being asked by the Commanding officer for the reasons for not eating food the petitioner failed to give any reason and replied that not only that he would not eat the food he would not even take water. Thereupon the Commanding officer ordered the petitioner to be marched before him on the charge-sheet under Section 41 (2) of the Act. The petitioner was marched accordingly before the Commanding officer on a charge for refusal to eat food. On being asked as to whether he had refused to eat food, placed before him the petitioner relied in affirmative. Then the Commanding officer ordered summary of evidence to be recorded. After the summary of evidence was recorded and submitted to the Commanding officer the petitioner was again marched before the Commanding Officer and the charge was read over to him and thereafter his Summary Court Martial was ordered and held. The Court Martial of the petitioner resulted in the impugned order dated 23-3-1982.
(3.) We have heard Sri G.D. Mukerji and Sri Shekhar Srivastava, learned Counsel appearing for the petitioner and the respondents respectively.;