SHISHIR KUMAR,J. - (1.) THIS writ petition has been filed for quashing the order of discharge dated 25th May, 2000 (Annexure 10 to the writ petition) as well as the order dated 31st May, 2005 (Annexure 17 to writ petition). Further prayer in the nature of mandamus commanding the respondent No.1 to treat petitioner to have continued in Colour Service till he would have completed requisite service laid down in Para 164 of Defence Service Regulation ( Regulations for Army), 1987 with all consequential benefits.
(2.) THE facts stated in the writ petition are that petitioner who was recruited in army was granted annual leave from 12th September, 1999 upto 28th December,1999. Various other facts stated in the writ petition are not necessary to be mentioned herein. It has been stated that during leave period, petitioner was called back and due to aforesaid fact, annual leave of petitioner for the year 1999 has been elapsed. A show cause notice was issued to petitioner submitting reply and subsequently a show cause notice was also issued directing petitioner to submit reply to said show cause notice. Petitioner has submitted reply and an order of discharge from service was passed on the ground that petitioner was awarded four red ink entries during his 13 years of service and petitioner was send on leave for 64 days but without any permission for extension of leave, he has overstayed, which is an offence under the Army Act but respondent without adopting any procedure as provided under the Act, an administrative action has been taken under the Army Rule 13(3)(4) of the Army Rules. The ground taken in the discharge certificate was that as petitioner has earlier been punished under Sections 40, 39, 63 of the Army Act, for various offences, therefore, he is being discharge from service being undesirable as inefficient solider. Petitioner filed a complaint as provided under the Act that too has been dismissed. Hence, the present writ petition. Counter and rejoinder affidavits have already been exchanged, therefore, with the consent of parties, present writ petition is being disposed of on the admission stage. Learned counsel for petitioner submits that the ground taken by respondents while discharging petitioner from service cannot be sustained in view of the fact that if petitioner has committed some offence, he is liable for trial by the Court Martial. Court Martial being a procedure for punishment under the Act is to be adopted. Under Section 108 of the Army Act, there are four types of Court Martial by which petitioner can be tried. In case in the opinion of respondents, petitioner has committed any offence or overstayed on leave without sanction of the same, unless and until an opportunity to that effect is given, petitioner cannot be discharged from service. Under the Army Act and Rules, there is a procedure that, in case, some offence is committed by a person subject to the Army Act, a court of enquiry as provided under Rule 177 has to be ordered by the competent authority and in case it is found that prima-facie case is made out, then the commanding officer will pass an order for holding a Court Martial either summary, general or district. But taking action under Rule 13, without affording an opportunity to petitioner is not sustainable in law and is liable to be quashed.
(3.) ASSUMING without admitting this fact, if petitioner was punished earlier on some offence that cannot be a ground for discharge of petitioner from army service. Petitioner has placed reliance upon a judgement of this Court in C.M.W.P. No. 10816 of 2000 No.5042301A, L.B.Thapa Vs. Chief of Army Staff and others. Another judgement has been relied upon by petitioner in C.M.W.P.No. 3201 of 1994 Shambu Gurung Vs. Union of India and others decided on 2.2.2005. Further reliance has been placed upon 1990 ACJ, 597, Chaukas Ram Vs. Sub Area Commander and Another. Taking support of the aforesaid judgements, learned counsel for petitioner submits that, in case, no notice against contemplated discharge having been given to petitioner, it will be treated that order impugned of discharge has been passed in violation of the procedure laid down by Rule 13 and also against the principle of natural justice. Further argument has been raised that unless and until submission is recorded that trial of petitioner by Court Martial is inexpedient or impracticable against Rule 13, cannot be taken. In such situation, learned counsel for petitioner submits that discharge order passed by respondents is liable to be set aside.;