UNION OF INDIA Vs. NARINDER SINGH MEHTA BRIGADIER

JUDGEMENT

(1.) This letters patent appeal is directed against the order made by a learned single Judge in OWP No. 745/1995, by which the learned single Judge by an order made on 24-4-1996 held. "The writ petition would accordingly survive and proceed and it would be for the parties to seek its disposal on merits on the motion hearing stage or alternatively to argue for its formal admission to hearing. Additional Registrar to post the writ petition immediately after vacations for appropriate orders. This goes to show that the appellant, Union of India and its (Legal Cell) having raised certain preliminary objections regarding maintainability of the writ petition, as on the date the writ petition was presented before this Court, the learned single Judge having heard learned counsel on both the sides held as above, providing detailed reasons for doing so.

(2.) It is seen by a perusal of the interlocutory order made by the learned single Judge in the writ petition, that when the writ petition came up for admission before the writ court, a preliminary objection had been raised on behalf of the Union of India regarding the maintainability of the writ petition and the jurisdiction of the Court to entertain such writ petition under Art 226 of the Constitution of India read with S. 103 of the Constitution of Jammu and Kashmir on the following facts : Writ petitioner was Commandant of 20 Infantry Brigade at Itrana (Alwar) Rajasthan and posted there on July 16, 1990, but on 24-1-1993 he was transferred and posted as D.I.G. Assam Rifles, Mizoram. It would appear that there was a complaint received against him by the Competent Authority which led to the setting up of a Staff Court of Inquiry. Petitioner having appeared before the Staff Court of Inquiry (SCOI), thereafter he was ordered to be attached on 10-9-1993. He was served with a charge sheet on 3-10-1993 and was allegedly made to sign on a pro forma under Rule 22 of the Army Rules, hereinafter referred to as 'the Rules', at which time the petitioner has asked for investigation to be conducted in accordance with Rule 22. Later, the summary of evidence was ordered to be recorded against him which led to the convening of General Court Martial (GCM) by an order made on 17-1-1994. A charge sheet was served on him on 9-1-1994 for allegedly having committed offences under Section 63 of the Army Act, 1950, hereinafter referred to as 'the Act' and he was eventually convicted and sentenced by the GCM to (a) forfeiture of three years service for promotion -(b) forfeiture of three years post service for pension and (c) severe reprimand.

(3.) The petitioner having been aggrieved by the said punishment, presented a petition (pre-confirmation petition) against the conviction and sentence which was dismissed by the Competent Authority on 19-2-1994 and the sentence against him was promulgated on 3-10-1994. In the meanwhile the petitioner had been transferred and posted as Dy. G.O.C., 10-Infantry Division, Akhnoor in Jammu and Kashmir State on 10-10-1994 from where, he filed a post-confirmation appeal under Section 164 of the Army Act on 23-10-1994. That petition came to be rejected and a communication was sent to him on 31-8-1995 which the petitioner received admittedly within the territorial jurisdiction of this Court.