N.K.SODHI, J. - (1.) WHAT is challenged in this petition under Article 226 of the Constitution is the legality and validity of the summary Court Marital proceedings held against the petitioner whereby he was sentenced to suffer rigorous imprisonment for nine months in civil prison and was Ordered to be dismissed from service. The order passed by the General Officer Commanding-in-Chief rejecting the post confirmation petition filed by the petitioner Under Section 164 (2) of the Army Act, 1950 (for short, 'the Act) has also been impugned.
(2.) PETITIONER joined the army as a signal man and while he was on duty as on operator on the Madhopur military exchange on August 29, 1985 he misconducted himself. He was charged Under Section 63 of the Act for having committed an act prejudicial to good order and military discipline. His commanding officer exercising his summary powers Under Section 80 of the Act awarded him 28 days rigorous imprisonment in military custody. On October 1, 1985 he was again awarded 28 days rigorous imprisonment by the commanding officer for having committed another offence which was also said to be prejudicial to good order and military discipline. While he was undergoing these sentences the petitioner was charged for having committed an offence Under Section 40 (a) of the Act for using criminal force to his superior officer while undergoing rigorous imprisonment in military custody. The gravamen of the charge was that on October 4,1985 he tried to hit Capt. P. K. Sharma with an iron bar in his office with a motive to hurt him. He was produced before his commanding officer on the same clay who after informing him of the charge directed a summary of evidence to be recorded on that very day. He was also served with a charge sheet and was informed that he would be tried by a summary Court Martial on the following day at 11. 00 A. M. The petitioner was tried by the summary Court Martial on 5. 10. 1985 and was sentenced to suffer rigorous imprisonment for nine months in civil prison and was also dismissed from service. Feeling aggrieved by the finding and sentence of the summary Court Martial he presented a petition to the General Officer Commanding-in-Chief for passing such orders thereon as he may think fit. This petition was rejected by an order dated July 21, 1987 (Annexure P3/1 with the petition ). Hence, the present petition. Mr. K. S. Gill, Advocate appearing for the petitioner challenged the proceedings of the summary Court Martial on the following four grounds: (i) The Commanding Officer violated the mandatory provisions of Rule 22, 23 and 24 of the Army Rules, 1954. (hereinafter called 'the Rules' ). (ii) The petitioner was not provided a friend of his choice to assist him during the trial which was in violation of the mandatory provisions of Rule 129 of the Rules. (iii) Rule 34 of the Rules had also been violated in as much as the petitioner was not given not given 96 hours interval after being informed of his trial by the summary Court Martial and his arrangement. (iv) The petitioner was tried on a charge different from the one that was supplied to him in the charge sheet.
(3.) I have heard counsel for the parties at length and after going through the pleadings find no merit in this petition.;