D P BHOSE (EX LT ) Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner, an ex -Lt. S. S. 29063 -L of 6 Garhwal Rifles, attached to 3 Rajput seeks a writ of certiorari for quashing an order of his dismissal on verdict of General Court Martial (for short, GCM) confirmed by HQs. With further prayer, for mandamus directing the respondent for continuing the petitioner in service and to treat him as such.

(2.) THE facts which gave rise to this petition are: that in February 1981, the petitioner was deputed to Mhow (MP) for undergoing training of Battalion Supports weapons (offices) crops serial 20, the course was to last till May, 1981. While being at Mhow at the end of his training course the petitioner received an intimation from Calcutta, regarding illness of his mother and to get her hospitalised. On completing the course the petitioner appears to have left Mhow on 25. 5. 81, to join his Battalion and on reaching Srinagar, he appears to have sent a written communication on 30/31 May, 1981 to his commanding officer for arrangements to sanction leave and for permission to leave for Calcutta, to attend his ailing mother and a letter for getting his mother admitted in Military Hospital there. On receiving no reply, the petitioner proceeded to Uri, where his Battalion, was stationed and then to Gulmarg where the Battalion was on exercise. The petitioner met the O. C. on 2.6.1981 at Gulmarg and apprised him verbally of the circumstances and requested for permission to leave for Calcutta and a letter for treatment of his mother. The O. C. appears to have told petitioner regarding referring his case to the Bde, commander for sanction as the Battalion (for" short Bn) was on exercise, but the petitioner left his unit for Calcutta without leave of the O.C. which was formed basis for charge against him u/s 39 (a) of the Army Act and he appears to have reported back to his Unit on, 22 -6 -1981. But in the meantime, the commanding officer (for short, O.C.) had reported his absence without leave to the Headquarters (for short HQS.) as a result of which General Court Martial (hereinafter referred to as GCM) was convened by G. O. C. for trying the petitioner u/s 39 of the Army Act, and on completion of the trial the petitioner was found guilty and punishment of dismissal from service was recommended in accordance with Section 71 of the Army Act which has been confirmed by the HQs and conveyed to the petitioner on 11.6.1982. Therefore, this petition on the ground that the petitioner being entitled to casual leave at his credit on the basis of urgency had not contravened Section 39 (a) of the Army Act there being no embargo on sanction of casual leave in the light of Army Policy letters indicated in the petition. That proper court of inquiry was not held and convening of G.C.M. is vitiated because the GOC 15 Corps, Brig. K.B. Malik was neither competent nor authorised to convene the GCM, with further disqualification that the petitioner having filed two statutory complaints against him. Further the petitioner not having been associated with the summary of evidence and not permitted to cross -examine the witness as his integrity and honesty was under investigation. That the petitioner was kept under confinement from his arrival and was not allowed to engage a counsel despite request for the same. That after the verdict of guilt and passing of sentence by GCM the petitioner was put under close arrest for 5 months short of any leave against the rules though he had made statutory representations to the H.Qs. against the sentence of GCM with no positive result, therefore, writ of certiorari on the grounds urged for quashing the order -of dismissal confirmed by the Army HQs on the verdict of guilt against the petitioner under section 39 (a) of the Army Act.

(3.) THE Respondent on contest, in his reply affidavit, has averred that the petitioner has not availed alternative remedy available against the finding nor any of his rights has been infringed under the decision of Court Martial. That the petitioner had not submitted proper leave application nor any telegram was sent to the Unit though the petitioner had met the O.C. at Gulmarg on 2.6.1981 having verbally requested for sanction of leave. Further the petitioner was apprised by the OC, the Bn. being on training, the approval of Bde Commander was necessary though the petitioner not having availed any leave but abruptly left the Unit without sanction or the permission to leave and a case of discipline was pending against the petitioner, further he being needed for collective exercise of the Unit, therefore, question of sanction of leave to the petitioner did not arise. That the proceeding for summary of evidence was properly conducted with the association of the petitioner, who was provided with a defending officer at the trial. That the GOC XV Corps was fully competent to convene GCM for trial of the petitioner, thus the pleas raised by the petitioner are factually and legally misconceived warranting dismissal of the petition.