(1.) HEARD both sides. The above petition has been filed to quash Exts. P1, P3 and P4 and for a mandamus commanding the respondents to reinstate the petitioner in the Indian Army as a Signal man with the benefits of continuity in service, fixation of pay and disbursement of arrears of salary and for other reliefs.
(2.) THE petitioner was enrolled in the Indian Army on 9.11.1982 as a Signal Man, Signal Corps, Jabalpur. In the month of June 1983 his mother fell ill and on getting information of the same he has applied for leave in order to visit his mother in Kerala. Accordingly leave for a period of 30 days from 3.6.1983 to 2.7.1983 was granted and he left for Kerala. The petitioner's mother who underwent an operation for her brain, however died in the hospital following the operation and as a result of the immediate and unexpected death of the mother the petitioner became upset, and in the said situation he had an attack of malarial fever. After getting cured of the illness the petitioner has reported for duty before the Signal Corps on 9.12.1983 and had explained the reasons for his delay to report for rejoining duty. He has also produced medical certificate to show that he was under treatment and that it was impossible for him to join duty on the expiry of the leave granted. However, the second respondent refused to consider the explanation offered and instead of allowing him to rejoin duty the petitioner was court martialled on the charge he had deserted the army under S.38 sub clause (1) of the Army Act 1950. According to the petitioner the charge of desertion levelled against him itself was factually unfounded in as much as he has never deserted the army but only overstayed the leave granted to him which is an offence punishable under S.39 of the Army Act. However he was sentenced to imprisonment for one month and subsequently he was dismissed from the army with effect from 20.1.1984. He underwent the punishment of rigorous imprisonment for one month in civil prison. The copy of the order of the Summary Court Martial received by the father of the petitioner from the second respondent has been filed and marked as Ext. P1. It is the case of the petitioner that none of the formalities as contemplated in the relevant provisions in the Army Act and the Rules were followed or complied with by the authorities in the case of the petitioner before issuing.Ext. P1 order. It is also his case that the charge of desertion against the petitioner was not heard in his presence as contemplated in R.22 of the Army Rules, and even at the stage of hearing of charge the petitioner has the full liberty to cross examine any witness against him and in his defence and the mandatory provisions were not complied with and therefore the petitioner contended that non compliance with the said mandatory provision vitiates the whole procedure against the petitioner culminated in the imposition of the penalty of rigorous imprisonment for one month and dismissal from service. Even during the summary court martial no witness was examined before the Commanding Officer in the presence of the petitioner and no statement of any witness or any other evidence on record was read over to the petitioner and obtained the signature thereof. The petitioner has not been given any opportunity to prepare his defence as contemplated in R.33 of the Army Rules.
(3.) THE original petition was resisted by the respondents 1 and 2. A detailed counter affidavit has been filed by the respondents narrating the entire background of the case. According to the respondents the petitioner who was supposed to come back to the duty on 2.7.1983 afternoon and failed to do so and thus overstayed with effect from 3.7.1983. On 7.7.1983 one Mr. Lawrence, father of Recruit Thomas, L was informed about over staying leave of his son with effect from 3.7.1983 and simultaneously apprehension order was issued to civil police authorities. When the petitioner did not come back even after lapse of 30 days a court of enquiry was ordered on 3.8.1983 under S.106 of the Army Act, 1950 which declared him as deserter with effect from 3.7.1983. No communication regarding the reason for absence from duty was made neither by the petitioner nor by his father. After absenting from duty for 160 days the petitioner suddenly rejoined the unit on 9.12.1983 at 11.00 hours and he did not produce any medical certificate/documents suggesting reasons for his over stay from leave. As he has committed an offence under the Army Act, the petitioner was put on offence report where in charge was heard and consequently a summary of the evidence was ordered and he having found medically fit and having observed all rules he was court martialled on 20.1.1984 and rigorous imprisonment in civil prison and dismissed from service under S.38 sub clause (1) of Army Act. It is specifically contended by the respondents that no intimation was received from the petitioner or from his father about the happenings at home namely serious illness, the death of the petitioner's mother and his falling sick/ admission to the hospital in Kerala while he was on leave and thereafter and no documents to support his case were produced by the petitioner as has been stated by him in the original petition. The petitioner at no stage revealed that he had an attack of Malariya fever in the statement given in the summary of evidence. No documentary evidence to the effect that he was admitted in the Primary Health Centre, Kundara was produced during recording of summary evidence. However the petitioner has stated that he was taken to Military Hospital, Trivandrum and the doctor at the military hospital advised him to go back to his unit as his leave had expired. However the petitioner did not produce any documents to support his statement. His non admission in the military hospital as per the statement reveals that his physical condition was alright and therefore the doctor at the said hospital advised him to undertake journey and rejoin the unit. The allegation of the petitioner that he was not duly heard by his Commanding Officer under R.22 was also denied. It is stated that summary of evidence was recorded as per R.23 and that the petitioner was offered all opportunities on perusal of summary evidence and the Commanding Officer decided to try the petitioner to Summary Court Martial and accordingly issued the charge sheet. The petitioner was also given liberty to cross examine any witness against him and call any witness and make any statement in his defence. However the petitioner refused to do so. The petitioner was also given an opportunity to call any witness in his defence. But he did not make use of the opportunities given to him and has declined to cross examine or to call any witness. Accordingly the summary of evidence was concluded. In fact the petitioner had expressed his intention of leaving the service and rendered his willingness in writing that he would not submit the petition against the conviction by the summary court martial on 20.1.1984 when asked for to make any statement or any reference to the charge or any mitigation of punishment. Therefore it is contended by the respondents that the contention is not relevant and tenable.