CAPT K MADHAVA RAO Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition has been brought by Capt. K. Madhav Rao under Article 226 of the Constitution of India seeking quashment of the order dated October 6, 1988, by which the punishment of reprimand has been administered to the petitioner on the basis of the charge that the petitioner on September 15, 1988, failed without sufficient cause to appear at 09.30 hours at 16 SIKH LI the place appointed for spectators to witness the 16 Inf Div Walk and Mararhon Championship finals. The petitioner was at the relevant time posted with 7th Battalion The Maratha Light Infantry. The impugned order has been challenged on various grounds by the learned counsel for the petitioner.

(2.) . One of the points raised is that the summary of evidence had not been recorded in accordance with the Indian Army Rules, in the counter affidavit filed on behalf of the respondents by Second Lt. R. Chaudhary working with 7th Maratha LI, it has been pointed out that the petitioner had himself dispensed with the requirements of Army Rule 22(1) and more over Rule 25 clearly envisages that an officer charged with an offence, if he so requires then the summary of evidence is to be recorded in accordance with Rules 22 & 23 and the petitioner did not express any such desire. Alongwith the counter affidavit annexure I has been filed which shows that the petitioner himself submitted that he did not require that the charges be heard in accordance with Army 22(1). In the rejoinder the petitioner had come forward w'th the plea that he was coerced to sign this certificate of which annexure I is the copy. It is not possible to give credence to the plea taken in the rejoinder that petitioner who has put in sufficient service in the Army holding the rank of Captain could have been coerced to sign such a certificate and partcularly when no such grievance had been made by him in his statutory complaint dated May 26, 1989, made under Section 27 of the Army Act (for short 'the Act') copy of which is annexure II to the writ petition.

(3.) . Even otherwise in the case of an officer the requirement of Rule 22 and Rule 23 are not mandatory as it is clear from sub-rule (1) of Rule 25 which provides that where an officer is charged with an offence under the Act the investigation shall, if he requires, be held and the evidence, if he so requires, be taken in his presence in writing in the same manner as nearly as circumstances admit, as is required by Rule 22 and Rule 23 in the case of other persons subject to the Act. So, it does not now lic in the mouth of the petitioner to assert that any violation of rule has been place in recording the summary of evidence in his absence.