MAHESH TIWARI Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this writ petition the petitioner has assailed the validity of the order dated 10.2.1997 contained in Annexure -1 whereby and where under punishment of discharge from the sen/ice under the provisions of Item iii (v) of Rule 13 (3) of the Army Rules, 1954 has been affimed by the appellate authority, Bare perusal of the impugned order would show that the petitioner has confessed that his name was Mahesh Tiwary and that he had enrolled himself aa,Suresh Pandey with the help of the education certificate and sponsoring form meant for Sri Suresh Pandey.

(2.) IT is contended by the learned counsel for the petitioner that the respondent -authority were not legally justified in taking recourse to a summary procedure prescribed under Rule 13 of the Army Rules, 1954 for discharge from his service. According to him, for such act the petitioner can be tried and convicted by court martial under section 43 of the Army Act, 1950 subject to the limitation prescribed under sub -section (4) of section 122 of the Act which also expired and .as such he could not have been legally proceeded under Rule 13. Thus, according to him, the impugned order of discharge from the service on the above mentioned ground is wholly without jurisdiction and bad in law.

(3.) LEARNED counsel for the petitioner placed reliance on the decision of the apex Court in the case of 'Radha Kishan vs. Union of India and ors. ' reported in AIR 1996 S.C. 3091, in support of his contention that since no trial by court martial was permissible in the facts and circumstances of the case the authority could not have adopted summary procedure against the petitioner for his discharge from the service in terms of Rule 13 of the Rules.