UMA SHANKER PATHAK Vs. UNION OF INDIA UOI

JUDGEMENT

(1.) The petition assails the validity of the order dated October 19, 1982 passed by the Summary Court Martial held against the petitioner sentencing him to two months' rigorous imprisonment and reducing him from the rank of Havildar to ranks which means to the post of Sepoy on a charge which has been characterised in the counter-affidavit as petty theft.

(2.) The order has been challenged on several grounds. Before, however, we deal with the grounds we may briefly summarise the essential facts. The petitioner joined the Army in January, 1972 as a Sepoy in Mahar Regiment. In course of time he was promoted as Lance Naik, and thereafter Havildar, claimed by the petitioner to be an out-of-turn promotion, which rank he was holding at the relevant time, i.e., September, 1982. As a Havildar he was in charge of the stores of the petitioner's unit which was at that time posted at Babina. Two guns described as unserviceable (non-service pattern) were found missing from the stores whereupon a Court of Enquiry was ordered into the incident. The Court of Enquiry after making the necessary enquiry concluded that the petitioner was responsible for the theft. Thereupon a summary of evidence was ordered. On the evidence collected at the summary of evidence the petitioner was charge-sheeted, the charge being theft of a double-barrel gun and a single-barrel gun, both of non-service pattern, said to be war trophies captured in 1971 war and entrusted to the petitioner's unit, punishable under Section 52 (a) of the Army Act, 1950. The charge-sheet dated September 18,1982 was issued by the Commanding Officer of the petitioner's regiment asking the petitioner to appear at the Summary Court Martial on September 19, 1982 to be presided over by the Commanding Officer for answering the charge. The respondents contended that at the trial of the charge before the Presiding Officer, the petitioner pleaded guilty whereupon on a consideration of the evidence collected at the trial he was found guilty of the charge of theft of Government property under Section 52 (a) and sentenced as aforesaid.

(3.) The order passed by the Summary Court Martial was then communicated to the petitioner and it is not disputed that he has already served out the sentence. The Reviewing Officer in his remark endorsed on the impugned order states that the petitioner had a right of appeal under Section 164 in terms of the Army Order 220/72.