ASHOK KUMAR Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) The petitioner has filed the present writ petition challenging the appellate order dated 23.5.1999 and the order of his dismissal dated 19.8.1996.

(2.) The petitioner was recruited as a Sepoy in the Indian Army in the year 1993. The petitioner completed his training and served for over two years. He took casual leave of five days in connection with his marriage from 25.5.1996 to 29.5.1996. He failed to resume his duties on the expiry of the leave. He reported on duty on 24th July, 1996. On 14th Aug. 1996 he was served with a charge-sheet and was directed to face the Summary Court Martial. He was charged for 'desertion of service' as he was granted leave from 25th May 1996 29th May 1996 but failed to report back on expiry of the leave and as such had absented himself till he voluntarily surrendered on 24th July 1996. In the Summary Court Martial three prosecution witnesses were examined. Two of the prosecution witnesses stated that the petitioner overstayed by 56 days and reported back on duty as per surrender certificate (Exhibit L). The petitioner was taken as "Kachha Kaidi". The third prosecution witness stated that a Court of Inquiry was held to investigate the circumstances under the which the petitioner overstayed on leave and on the basis of the said court of inquiry he was declared a deserter. In the Summary Court Martial the petitioner pleaded guilty and accordingly was awarded punishment of dismissal from service on disciplinary grounds vide order dated 19.8.1996 passed by the Commanding Officer. The petitioner challenged the said order of punishment by filing the writ petition No. 13709 of 1997 but the same was dismissed on the ground of availability of a statutory remedy of an appeal under Sec. 164 of the Army Act 1950 (hereinafter referred to as the Act). Thereupon the petitioner unsuccessfully preferred an appeal as the same was dismissed by the Chief of the Army Staff vide order dated 23rd May 1999.

(3.) In the counter affidavit the respondents have asserted that the petitioner was recruited on 25.2.1994. Earlier to proceeding on five days leave on 24.5.1996, the petitioner had taken casual leave six times in four months. He did not report on duty on the expiry of the leave and unauthorizedly absented himself from 30.5.1996. He was declared deserter w.e.f. 30.5.1996 vide recommendation of the Court of Inquiry dated 10th July 2006. On the said report itself the Commanding Officer made an endorsement of acceptance of the opinion of the Court of Inquiry and directed to apprehend the petitioner. The petitioner thereafter reported on 24th July 1996 and he faced the Summary Court Martial. He pleaded guilty of the charge before the Summary Court Martial. Finally, the Commanding Officer awarded the punishment of dismissal from service.