OM PARKASH SHARMA Vs. UNION OF INDIA ETC

JUDGEMENT

(1.) The petitioner was serving in the Army. Through this writ of certiorari, he seeks the quashing of the order dated 16th of June, 1975, discharging him from Army service.

(2.) The case of the petitioner is that he was enrolled as a combatant in the Army in November, 1961, and continued serving at various places till he was discharged from service. He also fought for the country in the 1965 and 1971 wars against Pakistan. In 1974, due to the unavoidable circumstances, on account of the illness of his wife, he over-stayed his leave. He was served with a show-cause notice dated 11th of July, 1974, which is very vague, asking him to reply by 25th of July, 1974. The show-cause notice was delivered to him on 13th of August, 1974. Though due to the late service of the notice it was not possible for him to send a reply within the time set by the notice, but still he sent a formal reply. In violation of the provisions of Sections 38 and 80 of the Army Act , the petitioner was subjected to 28 days of imprisonment in military custody. Under a threat of submitting him to a court-material, he was made to sign a blank paper. In May, 1975, the petitioner was recalled from leave to the headquarters of the unit and was told on 16th June, 1975, that he was discharged as an undesirable person. He was not told any circumstances in which he was undesirable nor any discharge certificate or order was given to him. He was medically examined on 25th of June, 1975, and sent home on the same day. The grouse of the petitioner is that in passing the order of discharge, the provisions of Section 23 of the Army Act and Rules 12(2) and 17 of the Army Rules had been breached. He made a representation Annexure P-3 to the Army Authorities, in reply to which he received Annexure P-4. In spite of the request of his counsel, he was not supplied with the copies.

(3.) As the order of discharge, according to the petitioner, is illegal, without jurisdiction, unconstitutional and mala fide, the petitioner has sought its quashing.