ASHOK KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) In this writ petition under Article 226 of the Constitution of India, the petitioner - an Airforce personnel has been praying for a relief of quashing the District Court Martial order dated 18.5.1999 and also quashing the charge-sheet dated 23.3.1999.

(2.) It is the say of the petitioner that he was enrolled as an Airman in the trade of MET/Assistant On 30.3.1997, the petitioner was posted to BC & LU Airforce. Lucknow and was working as Matrologist at the relevant time; that the petitioner was required to file a redress of grievance application against MWD K.K. Singh under Section 26 of the Airforce Act (hereinafter referred to as "the Act"); that pursuant to the redress of grievance the petitioner was issued a Movement Order to proceed to 17 Wing Gorakphur for temporary duty with a view to punish the petitioner, though he was not due as per the turn to proceed on temporary duty as per the roster maintained in the office, that on oral plea of redressal of this grievance, the petitioner was threatened with dire consequences: that due to this extraordinary mental stress and strain the petitioner lost his mental balance and was under treatment by CGHS Dr. C.P. Gupta at Delhi, that the petitioner remained under treatment for sleeplessness and insomnia. After two months' treatment, the petitioner reported to his duties on 16.12.1997 and the same is later confirmed by respondent's medical authority and kept in hospital from 3.2.1998 to 21.2.1998. This was due to harassment and ragging by respondent No. 7, that there is total non-compliance with Rule 24 of the Airforce Rules, 1969 (hereinafter referred to as "the Rules") and principle of natural justice; that no copy of charge-sheet was given to the petitioner (it was only read out to the petitioner). No statement is taken in presence of the petitioner and was not given adequate time to defend his case; that medical certificate was not looked into by the Commanding Officer and the same procedure was followed in the summary of evidence; that respondent No. 4 declared the petitioner of unsound mind and required to be checked by a psychiatric. Even then the petitioner was directed to perform his normal and routine duties; that all of a sudden, respondents 6 and 7 called the petitioner and send him to-Psychiatric Ward Command Hospital. Lucknow by respondent No. 4: that the petitioner was declared medically fit. The petitioner was put on charge by respondent No. 7; that charge-sheet dated 16.12.1997 was kept pending for oblique reasons and was put on charge for 4 days from 21.1.98 to 27.1.98 though the petitioner's leave application remained with the Adjutant for one day's leave in addition to 3 days' holidays, who advised the petitioner to go on leave as petitioner's leave was sanctioned. The petitioner was again put on charge on 19.4.98. The petitioner was taken into custody on 1.4.1999 and kept into confinement. The petitioner prayed for time for preparing his defence. He was hardly given three hours to search a lawyer in Allahabad. The preliminary objections were filed betore the District Court Martial (DCM). The DCM passed the order dated 18.5.1999 to suffer rigorous imprisonment of 1 1/2 years with dismissal from service. The order dated 18.5.1999 passed by DCM has been mainly challenged on the ground of jurisdiction of DCM to try the petitioner for the offences charged, procedural irregularity and non-observance/violation of rules and the disproportionality of sentence in relation of the offence.

(3.) Learned counsel for the petitioner, relying on Section 39 of the Act contended that the DCM has no jurisdiction, court martial proceedings are violative of Rule 39 and Rule 43(2). Section 39 of the Act deals with absence without leave. It provides that any person who commits any of the following offences - (a) absents himself without leave: or (b) without sufficient cause overstays leave granted to him; or (c) being on leave of absence and having received information from proper authority that any unit or detachment, to which he belongs, has been ordered on active service, fails, without sufficient cause, to rejoin without delay : or (d) without sufficient cause fails to appear at the time fixed, at the parade or place appointed for exercise or duty; or (e) when or parade, or on the line of march, without sufficient cause or without leave from his superior officer, quits the parade or line of march; or (f) when in camp or elsewhere, is found beyond any limits fixed or in any place prohibited, by any general, local or other order, without a pass or written leave from his superior officer; or (g) without leave from his superior officer or without due cause, absents himself from any school when duly ordered to attend there; shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned. ' Section 119 of the Act deals with the powers of the District Court Martial. It provides that the District Court Martial shall have power to try any person subject to this Act, other than an officer or warrant officer for any offence made punishable therein, and to pass any sentence authorised by this Act other than a sentence of death, transportation, or imprisonment for a term exceeding two years. It is not disputed that the petitioner was tried by the DCM. It is submitted by learned counsel for the respondent that as per Section 119 of the Act, the DCM can impose imprisonment for a term not acceding two years. Section 82 of the Act provides that subject to the provisions of Section 84, a Commanding Officer of such other officer as is, with the consent of the Central Government, specified by (the Chief of Air Staff) may, in the prescribed manner proceed against a person subject to this Act otherwise than an officer or warrant 'officer who is charged with the offence under the Act. The latter part of the Section deals with the punishment, which can be prescribed to the extent provided therein. Thus, it will be seen from the above that the DCM has the power to convene the Court Master and even the Commanding Officer can try for unauthorised absence. Considering the provisions contained in Section 39 and Section 119, reproduced above, it does not appear that the DCM lacks jurisdiction for imposing a sentence of less than three years, as in the instant case the sentence imposed by the DCM is 1 1/2 years.