GURDIAL SINGH Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) The petitioner herein was accused of having committed an act "prejudicial to good order and Military discipline" inasmuch as he "on 30th December. 1984 after leaving IC-35327K Capt. Tejinder Singh in his quarter, he as a Co-Driver of Jeep Vehicle BA No. 848-30841K did not bring back the vehicle to MT Park." After a summary court martial, the petitioner was sentenced to suffer rigorous imprisonment for three months with a direction that the sentence shall be carried out by confinement in civil prison. He was also ordered to be reduced to ranks and was also ordered to be dismissed from service. Copy of the order dated Jan. 11, 1985 imposing this punishment is at Annexure P-9.

(2.) Any person subject to the Army Act who considers himself aggrieved by a finding or sentence of any Court Martial is entitled to present a petition to the Central Govt, (the Chief of the Army Staff) or any prescribed officer superior in command to the one confirming the finding of guilt and sentence. The provision to this effect exists in Sec. 164(2) of the Army Act, 1950. It appears that the petitioner while in custody submitted a representation dated Jan. 28, 1985 to the G.O.C.-in-Command, Western Command, Simla. A copy of this representation is at Annexure P-2 with this writ petition. While the case was still pending the petitioner through his counsel submitted a representation dated March 7, 1985 requesting that the copies of the proceedings of the Special Court Martial and of the Memorandum be supplied to him so as to enable him to present his petition to the Chief of the Army Staff under section 164(2) of the Army Act. In this representation, it was specifically mentioned that no action "on application sent by the N.C.O's wife Smt. Manjit Kaur on 18 Feb., 1985 and by the N.C.O. on 30 Jan., 1985" be taken. Since the requisite documents were not furnished to the counsel for the petitioner, a petition under section 164(2) of the Army Act was submitted on behalf of the petitioner vide letter dated May 6, 1985 (Annexure P-5). While the matter was still under correspondence between the counsel for the petitioner and the authorities, vide letter dated Aug. 23, 1985, the counsel for the petitioner was informed that the petitioner had "submitted a petition to G.O.C.-in-C, Western Command against the finding and sentence of a S.C.M. who after due consideration has rejected the same. has already exhausted his legal right to redress under the Army Act and as such no action it is regretted is warranted on the petition submitted by you."

(3.) Mr. K.S. Gill, learned counsel for the petitioner, contends that vide letter dated March 7, 1985, a request had been made on behalf of the petitioner that no action be taken on the representation submitted to the G.O.C.-in-C. Further, vide letter dated May 18, 1985, the counsel had been informed that the matter was under consideration at the Headquarters. He submits that the petitioner was still awaiting reply to the detailed representation, but vide order of Aug. 23, 1985, the remedy under section 164(2) of the Army Act had been completely shut out to the petitioner. He prays that proper opportunity to represent in accordance with the provisions of Sec. 164(2) of the Act should have been afforded and has been illegally denied to the petitioner.