- (1.) Writ jurisdiction of this Court under Article 226/227 of the Constitution of India has been invoked by the petitioner for quashing of the order of punishment issued on 8th August, 1997 (Annexure P-19) in terms whereof the General Court Martial on 12th July, 1997 awarded following punishments to him:- (i) to take rank and precedent as if his appointment as substantive Captain bore the date the 11th June, 1996; and (ii) to forfeit 3 years past service for the purpose of pension. As a consequential relief, the petitioner also seeks quashing of communication dated 1st May, 1998, (Annexure P-18) whereby he was informed that the Post Confirmation Petition dated 29th July, 1997 submitted against the above mentioned punishments were rejected by the Central Government after consideration as it lacked substance. The petitioner has also sought a writ in the nature of mandamus to direct the respondents to count the complete service for the purpose of pension by treating him in the substantive rank of Captain with effect from 11th June, 1993 and to release all other consequential benefits.
(2.) The petitioner was commissioned in the Indian Army in the Corps of Electronics and Mechanical Engineering in the year 1988. In May 1993, he was detailed to undergo Electrical Mechanical Degree Course (EMED-61) Part I in the College of Military Engineering at Pune. It is alleged that on July 20, 1994, the petitioner while appearing for Phase Test- II examination for Basic Survey-2 paper, was found in possession of an additional answer sheet containing written statement/material pertaining to the subject. After the examination was over, Major S.N. Akhade, the Invigilator along with Mrs. Jyoti Shukla who was detailed for the examination, were going to report the matter to Staff Officer-2 (Training), when the petitioner snatched the answer sheet from Major S.N. Akhade and ran away. The said answer sheet was allegedly torn off by him. A Court of Inquiry was convened by College of Military Engineering on 25th June, 1994 to investigate the matter and pending inquiry, the petitioner was withdrawn from the course on 10th August, 1994 and was attached to College of Military Engineering. The petitioner was thereafter served with tentative charge sheet on 27th August, 1994 (Annexure P-3) and pursuant thereto Summary of Evidence was recorded at College of Military Engineering in terms of Rule 22 of the Army Rules. Meanwhile, the petitioner was posted to 512 Army Base Workshop where the petitioner was served with another tentative charge sheet dated 23rd June, 1995 (Annexure P-5). It may be mentioned here that there is no substantial difference between the nature of allegations as contained in the first tentative charge sheet (Annexure P-3) or the second tentative charge sheet (Annexure P-5) except a minor variation in the language of second charge. Pursuant to the charge sheet (Annexure P-5), Summary of Evidence was recorded and upon its conclusion, it was recommended that the petitioner be tried by the General Court Martial. The petitioner was accordingly issued the charge sheet dated 31st October, 1996 (Annexure P-11) and the General Court Martial was convened. The petitioner having been found guilty of both the charges, the impugned order dated 8th August, 1997 (Annexure P-19) containing the punishments awarded to him by the General Court Martial on 12th July, 1997, was passed. As stated earlier, the Post Confirmation Petition preferred by the petitioner was also turned down by the Central Govt.
(3.) It may also be mentioned here that before his Post Confirmation Petition was decided vide order dated 1st May, 1998 (Annexure P-18) [firstly, vide order dated 31st March, 1998 (Annexure P-17) which was, however, later on superseded by order Annexure P-18], the petitioner approached the High Court of Judicator at Bombay through Writ Petition No. 4049 of 1997 which was disposed of vide order dated 30th September, 1997 in the following terms:- "1. Deponent's appeal against the punishment imposed upon him by the General Court Marshal is pending consideration of the Union of India. In the appeal the deponent has also prayed for stay of the impugned punishment, pending the disposal of the appeal. In the circumstances, deponent cannot justifiably approach this court at this interlocutory stage. Rejected. 2. Proceedings of the appeal are, however, expedited and respondent is directed to dispose of the same expeditiously and in any event within a period of six months from today. Similarly orders in respect of prayer for stay should also be passed expeditiously and be communicated to the deponent. This be done within a period of 4 weeks from today.";