RADHEY SHYAM OJHA Vs. UNION OF INDIA

JUDGEMENT

(1.) R. B. Misra, J. In this writ petition prayer has been made to quash the order dated 22-6-93 (Annexure-4 to the writ petition) and the order dated 30-11-93 (Annexure-6 to the writ petition) and further prayer has been made for directing the respondents to reinstate the petitioner to the post he was holding prior to the dismissal with consequential benefits.

(2.) IT appears that the petitioner had assaulted to No. 9086405 NK/gd Jas Poul of 2 Jakli C/o 56 A. P. O. , his superior officer at 306 Fd. Ambulance C/o 56 A. P. O. on 10 February 1993 during a fight in the Unit Cook house regarding issue of food. The Summary at evidence was recorded as per Unit part I Order No. 395/93 dated 15th May, 1993. The petitioner absented himself from unit from 5th March 1993 to 13 May, 1993. An summary of evidence could not be recorded in his absence period since his presence during recording of summary of evidence was mandatory. The essential witness L/nk CH Makhan Din 2/nk Mohd. Afsar and Nk C. D. Jagpal who belong to Unit other than 306 Fd. Amb. Through at the time of occurrence of an evidence were attached to 306 Fd. Amb. Were sent back to their respective units after initial Court of inquiry since the petitioner absented himself summary of evidence was started on 25th May, 1993. Tentative charge sheet was issued by the C. O. Col. G. N. Kutti on 25 May of 1993. IT was followed by recording of summary of evidence by Lt. Col. K. P. Nandi respondent No. 4 by the order of Col. G. N. Kutti vide unit part 1 Order No. 396/93 dated 15 May, 1993. The accused was given full opportunity to cross examine any witness and make statement in his defence and also to produce any witness in his defence. After completing summary of evidence charge-sheet issued to the petitioner on 10 June, 1993 under Section 5, Army Act, 1950 Section 40 (a ). As per Army Rule 22 the charge against the petitioner was heard by Commanding Officer in his presence which was followed by summary of Evidence recording by Lt. Col. K. P. Nandi by order of Col. G. N. Kutti vide Unit Part 1 Order No. 395/93. The petitioner was given full liberty to cross examine the witness and to make statement in his defence and to produce any witness in his defence at the hearing of charge as well while recording of summary of evidence.

(3.) ACCORDING to the petitioner the judicial review power of the High Court may be invoked in the facts and circumstances to quash the dismissal order in the light of the judgment AIR 1987 SC 2386, Ranjit Thakur v. Union of India and Others, however the decision of the Supreme Court in Ranjit Thakur (supra) is not applicable in the present case as the procedure of Court martial in the present case is not based on irrationality and perversity, therefore, the quantum of punishment cannot be said to be disproportionate to the offence as it does not be so disproportionate to the offence as it does not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias.