KARTAR SINGH Vs. COMMANDING OFFICER

JUDGEMENT

(1.) PETITIONER was enrolled in the army on 21.11.1972 and was later deployed on Sikkim Border. He claims that he had some running feud with Sub. Sat Paul who had told him that no clearance certificate was required for his proceeding on leave. According to him, he received a telegram that his wife was seriously ill and he consequently applied for leave to the Commanding Officer for two months which, he asserts, was sanctioned. He thereafter approached for the clearance certificate but was informed by Sub. Sat Paul that it was not required. While he was availing of the leave, he was arrested and brought to the unit on 7.1.1979 at Chandimandir. He was thereafter let free and allowed to participate in exercise for two months and was dismissed from service in March 1979 without being tried by the court martial and was eventually send home on 13.3.1979 after having put in 7 years service. He alleges that no formal order of dismissal was passed by the respondents nor was any court martial held.

(2.) IN the reply filed by the respondents it is submitted that the petitioners cause suffered from unexplained delay and laches and the allegations made by him against Sub. Sat Paul were untenable as he had failed to implead him as a party respondent. It is stated that the petitioner had brought his family in the station on 25.4.1977 without prior approval of the competent authority. He thereafter overstayed his leave for 13 days from August 15 to 27, 1978 for which he was charge sheeted under sec. 39(b) of the Army Act and sentenced to 28 days rigorous imprisonment. He finally deserted his service on 5.1.1979 and remained absent till he was apprehended by the police on 17.1.1979 and kept in military custody till 12.3:1979.Hewasthereaftertried by the summary court Martial on 13.3.1979 under sec. 38(1) of the Army Act for deserting the service, being a habitual offender. It is also alleged that the petitioner failed to cross examine sub. Satpaul Hav. Anayat Ullah and CHM K P Singh, who were prosecution witnesses in the summary of evidence. The summary court martial was conducted in conformity with the provisions of the Army Act and Capt J S verma was detailed as "friend of the accused". The petitioner pleaded guilty to the charge voluntarily and the punishment was awarded commensurate with the offence committed by him.

(3.) PETITIONERS counsel, Mr. Qazi, sought to draw distinction between "case of absence from duty" and one of desertion. According to him, petitioner had at best remained absent from duty without leave and that he should not have been treated to be a deserter and punished under sec. 38 of the act. According to him, respondents were under a duty to first follow procedure under Sec. 106 of the act and to hold a court martial to find out whether he had remained absent from duty without leave with the intention to surrender his service. He also contended that the punishment given to the petitioner was disproportionate and violative of Sec. 72. He placed reliance on Virinder Kumars Case (AIR 1986 SC 1063, AIR 1992 SC 417 and 1991 KLJ513).