B.S.CHAUHAN,J. - (1.) THIS is an appeal under Section 18 of the Rajasthan High Court Ordinance against the judgment and order of the learned Single Judge dated 28.5.1997 passed in S.B. Civil Writ Petition No. 358/1991 by which the writ petition of the respondent -petitioner has been allowed with cost of Rs. ten thousand and quashing the order of dismissal from service and he has been allowed to be reinstated with full back wages.
(2.) THE respondent -petitioner joined the Indian Army as a combatant Sepoy in the trade of cook on -21.2.83 and when he was on duty on 15.8.1990, some altercation took place and he became very furious and assaulted Naib Subedar Jaswant Singh by giving him a slap. Respondent -petitioner was arrested immediately after the incident and detained in military custody. A summary of evidence was recorded on 17.8.1990 and he was court martialled by summary court martial on 17.9.1990 awarding punishment of dismissal from service and six months' rigorous imprisonment. His representation/appeal etc. were dismissed. However, his writ petition has been allowed by the judgment and order dated 28.5.1997. Hence this appeal by the Union of India and others. Heard Mr. P.P. Chaudhary learned Counsel for the appellants and Mr. S.K. Nanda for the respondent.
(3.) IN the writ petition, basically two questions were raised. Main thrust of the argument had been on non -compliance of provisions contained in Rule 34 (1) and Rule 115 (2) of the Army Rules, 1956, hereinafter called 'the Rules.' It is not much in dispute that the said rules were not given strict adherence to, though the present appellants claim that the said rules had been substantially complied -with but it is urged that the said rules are directory and not mandatory. Rule 34 reads as under: 34. Warning of accused for trial. - -(1) The accused before he is arraigned shall be informed by an officer of every charge for which he is to be tried and also that, on his giving the name's of witnesses whom he desires to call in his defence, reasonable steps will be taken for procuring their attendance, and those steps shall be taken accordingly. The interval between his being so informed and his arraignment shall not be less than ninety -six hours or where the accused is on active service less than twenty -four hours. (2) The officer at the time of so informing the accused shall give him copy of the chargesheet and shall, if necessary, read and explain to him the charges brought against him. If the accused desires to have it in a language which he understands, a translation thereof shall also be given to him. (3)... (4) If it appears to the court that the accused is liable to be prejudiced at his trial by any non -compliance with this rule, the court shall take steps and, if necessary, adjourn to avoid the accused being so prejudiced. ;