Telangana High Court
Bharat Pandurang Solanke, vs Union Of India., Chief Army Staff,New ... on 5 December, 2023
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 33832 OF 2010
ORDER:
Order of the 1st respondent dated 14.07.2003 is impugned in this Writ Petition. By the said order, the order of the 4th respondent dated 14.12.2000 dismissing petitioner from service and by molding it as discharge from service and not allowing him to attend duty, without following procedure of discharge, was confirmed.
2. The case of petitioner is that he was enrolled in Indian Army on 25.12.1994 and was earmarked for the Corps of EME (Electrical and Mechanical Engineering). While he was serving at 851 Fd. Workshop Coy EME which was under 608 EME Bn. located in Extreme Northern Sector, he was granted 15 days leave from 31st August, 2000 to 14th September 2000. It is stated that when he was in Jammu Transit Camp on / around 29th August 2000, petitioner lost his identity card bearing No. C-492402, in spite of his efforts, he could not trace the same. It is his case that even in his leave period, he suffered due to loss of identity card issued by the Army as he had to undergo jail / military prison and he was under treatment for 2 his ill-health. When he tried to apply for leave, then also, he could not be able to move. As he did not join duty, a telegram was sent on 16.09.2000 but the same reached his native place much later and before he reported to Transit Camp where he was told that he had to fend for himself, thereafter, he had three days stay at Transit Camp by shuttling between Transit Camp and Unit, ultimately EME center, where he was taken on strength, as is evident from the entries in 213 and 216 Transit Camp. As per the instructions, he had reported to EME centre at Secunderabad on 05.11.2000, there the 3rd respondent had taken summary of evidence of all witnesses on 07.12.2000 as per the order issued by IC-45719-Y, Major P.S. Sunit Kumar, Officiating CO of EME Depot Bn., Secunderabad and the 4th respondent was a member of Court of Enquiry respecting the matters on which the charges against petitioner as accused were framed on 09.12.2000.
Though as per Rule 38(2)(c) of the Army Rules, 1954, the person who is a member of Court of enquiry respecting the matters on which the charges against accused were framed, is ineligible and disqualified to be as an officer for the Court-martial. But the 4th respondent who framed charges against petitioner as accused being member of Court of enquiry, 3 he himself conducted the Court martial and gave verdict on 14.12.2000 dismissing him from service, even though it is against the provisions of the Army Rules.
Petitioner challenged the same by sending the statutory petition under Section 164(2) of the Army Act, 1950 before the 1st respondent on 21.10.2002. Though it is to be decided within a month of its receipt, it was delayed, hence, he was constrained to file Civil Misc. Writ Petition No. 348 of 2003 before the High Court of Judicature at Allahabad and as per the orders of the said Court, the 1st respondent passed non- speaking order dated 14.07.2003 without seeing the procedural illegality of the 4th respondent in passing the order of dismissal from service and erroneously confirmed the same and molded the order of dismissal to discharge from service.
3. In the counter, it is stated that in exercise of powers conferred by Section 4 of the Armed Forces Tribunal Act, 2007, the Central Government established Armed Forces Tribunal with effect from 10.08.2009. The Tribunal has jurisdiction for adjudication of complaint and disputes regarding service matters and appeals out of the verdicts of the Court Martials. It is submitted that Writ Petition is to be dismissed with liberty to 4 petitioner to approach the Armed Forces Tribunal at Chennai for adjudication of his dispute.
Factually, it is stated that while serving with 851 Field Workshop Company EME, petitioner was granted 15 days casual leave with effect from 31.08.2000 to 14.09.2000. After completion of leave, he failed to join duty, therefore, apprehension roll was issued by 851 Field Workshop Company EME vide letter dated 16.10.2000. Court of Inquiry was conducted to investigate the circumstances under which he became OSL (Overstayal of leave). After investigation, petitioner was declared deserted with effect from 15.09.2000 (FN) and Casuality was also published vide their Part II order. After 52 days of Overstayal of Leave with effect from 15.09.2000 to 05.11.2000, petitioner joined voluntarily at ME Depot Bn. on 05.11.2000 at 21.30 hours. While in service, he was given sufficient chances to improve upon himself. It is the case of the respondents that petitioner was tried summarily on earlier three occasions during his 5 years and 11 months of service, but the same had not brought any reformative change in the attitude of petitioner and he committed offence the fourth time. Petitioner was tried by Summary Court Martial under Army Act Section 54(b) for losing, by negligence, identity card, which is the 5 property of government and under Section 39(b) for without sufficient cause overstaying leave granted to him and accordingly, dismissed him from service with effect from 14.02.2000. After dismissal from service, petitioner served a petition dated 31.03.2001 to the Chief of Army staff to quash his trial by SCM and Award dismissing him from service. After careful examination, the Chief of Army Staff vide order dated 04.07.2010 directed that petitioner be deemed to have been discharged with effect from the date of his dismissal on humanitarian grounds. The Chief of Army staff rejected the Petition for all other purposes. Copy of order of Chief of Army Staff was forwarded to counsel for petitioner vide Additional Directorate General Discipline and Vigilance, Adjutant Generals Branch, Army Head quarters letter dated 17.07.2003. The action taken by the respondents in the case of petitioner is according to law and correct.
It is submitted that after completion of basic military and technical training, petitioner was posted to 902 Air Defence Missile Regiment Workshop with effect from 24th December 1995 to perform his duties. While serving there, petitioner overstayed from leave on two occasions i.e. on 01.08.1997 and 30.12.1997. For the offences committed by him, 6 he was awarded punishment of seven days and 14 days rigorous imprisonment in Military Custody. Moreover on completion of his normal tenure, petitioner was further posted to 851 Field Workshop Company.
It is stated that identity card bearing No. C-492402, property of government was issued to him and it is his responsibility to keep the same in his safe custody. However, he lost his identity card at 213 Transit Camp Jammu. A Court of Inquiry was conducted at EME Depot Bn., Secunderabad and it was opined by the Court that petitioner be blamed for not adhering to compliance of instructions contained in Special Army Order 11/S/79. Accordingly, petitioner was tried for an offence under Section 54(b) of the Act and also for overstaying of leave under Section 39(b) and dismissed him from service.
It is stated that petitioner had forwarded a telegram on 13.09.2000 to his parent unit requesting extension of leave for 15 days and stating that his grandmother expired. Again on 15.09.2000, he had also forwarded another telegram for extension of leave for 15 days stating that his grandfather expired. From the above, it is clear that petitioner was merely offering excuses and had no serious intention of serving Army. Hence, his parent unit, on 16.09.2000, intimated that his 7 request for extension of leave had not been sanctioned and directed him to join duty forthwith. In order to justify his absence, petitioner made a false statement that he was unable to join duty as he was under treatment for ill-health.
The summary of evidence recorded by Capt. Purushothaman PN of EME Depot Bn., Secunderabad by the order of Major PS Sunil Kumar, officiating Commanding Officer of EME Depot Bn. The 4th respondent viz. Colonel Arun Tuli, Commanding Officer, EME Depot Batallion was not Presiding Officer / Member of Court of Inquiry but he ordered the Court of Inquiry which was conducted by Capt. AA Rethinam as the Presiding Officer in the said Court of Inquiry. The Commanding Officer holding the trial Cl. Arun Tuli had given a certificate to the effect that he had perused the Summary of Evidence in respect of accused before signing the charge sheet and satisfied himself that a prima facie case existed against accused.
After dismissal from service, petitioner served a petition dated 31.03.2001 to the Chief of Army Staff to quash his trial by SCM award and dismissal from service. The Chief of Army Staff vide order dated 04.07.2010, on humanitarian grounds, reverted the sentence of dismissal to discharge with effect from the date of dismissal took effect. Accordingly, the 8 status of petitioner was changed as deemed to have been discharged with effect from the date of his dismissal took effect vide order dated 09.08.2003. After change of status, a sum of Rs.40,252/- on account of service gratuity was also paid to petitioner, hence, he is not entitled for reinstatement of service, salary and other increments. Earlier petitioner filed CMWP before the High Court of Judicature at Allahabad to quash the Chief of Army Staff Order dated 04.07.2010 and to reinstate him into service with all consequential benefits. The said CMWP was dismissed vide order dated 10.12.2008 as withdrawn with liberty to petitioner to seek his remedy as may be permissible under law.
4. A reply-affidavit was filed by petitioner stating that he had challenged the illegal and void order of dismissal passed by the 4th respondent and its confirmation by molding the sentence from dismissal to discharge. He filed the material papers as Exs.P1 to P5 which were handed over by the Army officials while framing charges and giving verdict in Court Martial. As per the charge-sheet containing the summary of evidence, copy of Annexure-2 Forms and charge sheet where charges were framed, it is the 4th respondent Mr. Arun Tuli, Col. Commanding Officer of EME Depot Bn., Secunderabad who 9 framed charges on 29.12.2000 and it contains his signature. Further, the verdict and sentence of Court Martial dated 14.12.2000 contains signature of the 4th respondent. The said order was also confirmed by Nyaya Up Mahadivakta Ka Kayalay, Dakshin Kaman Mukhyalaya, Office of Deputy Judge Advocate General, Head Quarters Southern Command, Pune vide order dated 24.01.2001, at para 3 which was filed by the respondents along with their counter. But contrary to the records, the respondents, in their counter, wrongly stated that the 4th respondent was neither Presiding Officer nor Member of Court of Inquiry and that as if Capt. AA Rathinam conducted Court of Inquiry only just for misguiding and confusing the Court. Therefore, petitioner reiterates that the 4th respondent is ineligible and disqualified to be as an officer for Court Martial as per Section 39(2)(c) of the Army Act, 1950 and the order of dismissal is also illegal and void. It is further stated that the respondents have not followed the procedure for removal of Undesirable and inefficient JCOs/WOs and OR, as per Letter dated 28.12.1988 of Atirikt Mahanideshalaya, Vyaktik Seva (PS2), Advocate General Shekhs Sena Mukhyalaya Add. Directorate General Personal Services (PS-2) of Army Head Quarters Sena Bhawan, New Delhi.
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5. Learned counsel for petitioner Sri Bhajrang Singh Thakur questions primarily order dated 14.12.2000 as not in accordance with law as the 4th respondent, who framed charges, has no power to convene the Summary Court Martial against his client under Section 39(2)(c) of the Act. Further, when petitioner filed Petition under Section 164(2) with the 1st respondent, order of dismissal was converted into discharge. Even as per the averments of the counter, Captain AA Ratinam has conducted Court of Inquiry as Presiding Officer and not Summary Court Martial against petitioner and whether it is valid under the provisions of the Act, is what the learned counsel agitates in this Writ Petition.
Drawing attention to provisions under Section 116 and 120 of the Army Act, 1950 and Defence Service Regulations 53 and 54 which deals with the conduct of summary Court Martial and powers of Commanding Officer thereunder to whom it vests, learned counsel tries to suggest that it is the Commanding Officer, who is the Head of the Unit only is having power to convene Summary Court Martial and in his absence, his immediate subordinate i.e.Lt. Colonel who is second in command will exercise those powers in officiating capacity as Commanding Officer. In support of his contention, he places 11 reliance on the judgments of the Hon'ble Apex Court in Union of India v. Vishav Priya Singh 1 and Randhir Singh v. Union of India 2.
In Vishav Priya Singh's case, it has been observed that
13. Chapter X of the Act deals with "Courts Martial" and the relevant sections are:
"108. Kinds of courts martial.--For the purposes of this Act there shall be four kinds of courts martial, that is to say--
(a) General Courts Martial;
(b) District Courts Martial;
(c) Summary General Courts Martial; and
(d) Summary Courts Martial.
109. Power to convene a General Court Martial.--A General Court Martial may be convened by the Central Government or the Chief of the Army Staff or by any officer empowered in this behalf by warrant of the Chief of the Army Staff.
110. Power to convene a District Court Martial.--A District Court Martial may be convened by an officer having power to convene a General Court Martial or by any officer empowered in this behalf by warrant of any such officer. ***
112. Power to convene a Summary General Court Martial.--The following authorities shall have power to convene a Summary General Court Martial, namely--
(a) an officer empowered in this behalf by an order of the Central Government or of the Chief of the Army Staff;
(b) on active service, the officer commanding the forces in the field, or any officer empowered by him in this behalf;
(c) an officer commanding any detached portion of the regular Army on active service when, in his opinion, it is not practicable, with due regard to discipline and the exigencies of the service, that an offence should be tried by a General Court Martial.
113. Composition of General Court Martial.--A General Court Martial shall consist of not less than five officers, each of whom has held a commission for not less than three whole years and of whom not less than four are of a rank not below that of captain.
114. Composition of District Court Martial.--A District Court Martial shall consist of not less than three officers, each of whom has held a commission for not less than two whole years.
1 (2016) 8 SCC 641 2 (2020) 14 SCC 513 12
115. Composition of Summary General Court Martial.--A Summary General Court Martial shall consist of not less than three officers.
116. Summary Court Martial.--(1) A Summary Court Martial may be held by the Commanding Officer of any corps, department or detachment of the regular Army, and he shall alone constitute the court.
(2) The proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers or one of either, and who shall not as such, be sworn or affirmed. [ Below Section 116 following Note 5 appears in the Manual: "Note 5.-- See Regs Army Regulation 381 for the circumstances under which a CO of a different unit may hold the trial by SCM of a person subject to AA."] ***
118. Powers of General and Summary General Courts Martial.--A General or Summary General Court Martial shall have power to try any person subject to this Act for any offence punishable therein and to pass any sentence authorised thereby.
119. Powers of District Courts Martial.--A District Court Martial shall have power to try any person subject to this Act other than an officer or a junior commissioned officer for any offence made punishable therein, and to pass any sentence authorised by this Act other than a sentence of death, transportation, or imprisonment for a term exceeding two years:
Provided that a District Court Martial shall not sentence a warrant officer to imprisonment.
120. Powers of Summary Courts Martial.--(1) Subject to the provisions of sub- section (2), a Summary Court Martial may try any offence punishable under this Act.
(2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a District Court Martial or on active service a Summary General Court Martial for the trial of the alleged offender, an officer holding a Summary Court Martial shall not try without such reference any offence punishable under any of the Sections 34, 37 and 69, or any offence against the officer holding the court.
(3) A Summary Court Martial may try any person subject to this Act and under the command of the officer holding the court, except an officer, junior commissioned officer or warrant officer.
(4) A Summary Court Martial may pass any sentence which may be passed under this Act, except a sentence of death or transportation, or of imprisonment for a term exceeding the limit specified in sub-section (5).
(5) The limit referred to in sub-section (4) shall be one year if the officer holding the Summary Court Martial is of the rank of Lieutenant Colonel and upwards, and three months if such officer is below that rank. [ Following Note 5 appearing below Section 120 in the Manual was deleted by the Government Order dated 28-8-2001: "A NCO or a sepoy cannot be attached to another unit for the purpose of his trial by SCM except as provided in Regs Army Regulation 381."] "
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In Randhir Singh's case (supra), the Hon'ble Supreme Court at para 11 held as under:
11. The above clarification indicates that the requirement of recording reasons for convening a Summary Court Martial shall apply from 5-7-2016. However, the fundamental principle of law which has been enunciated is that the power to order an SCM is a drastic power which must be exercised in a situation where it is absolutely imperative that immediate action is necessary. Sub-section (2) of Section 120 is prefaced by the words "when there is no grave reason for immediate action". In the present case, though the incident took place on 11-8-2007, the SCM took place on 22-5-2008. The convening of an SCM was contrary to law.
He contends that in the present case, only just for overstaying leave period and for losing the identity card, which is not at all grave and serious offences, no immediate and urgent summary court martial can be conducted.
According to the learned counsel, even if the version of the respondents that Summary Court Martial Proceedings were conducted by Mr. Captain AA Rathinam, he is not the second in rank and his position is 6th, to whom as per the Regulation No. 54 no powers will be delegated either under the Act or the Regulations. Further, if petitioner accepted his guilty, the proceedings conducted and orders passed by the officer, who is incompetent to pass the same and has no powers, will not stand for judicial scrutiny.
6. Per contra, learned Standing Counsel for the respondents Smt. Kavitha Yadav submits that Petition falls under the definition of 'service matter' in terms of Armed Forces Tribunal Act, 2007. Section 14 thereof prescribes that jurisdiction, power and authority in service matter lies to Armed 14 Forces Tribunal only. In the present case, as on the date of filing the Writ Petition, the Tribunal is very much in existence, hence, the Writ Petition is liable to be dismissed in limini. It is argued that petitioner approached this Court only on the ground that respondents have not followed the procedure of discharge and that when he accepted the guilt and declined to avail the remedy of cross-examination, he lost his right to question the procedure of enquiry and he cannot use the same at a later stage, as such, it is hit by rule of res judicata, hence, the Writ Petition is liable to be dismissed on this ground also.
7. A perusal of the order impugned clearly shows that petitioner was tried by SCM on two charges; 1) under Section 54(b) of the Act 'for losing by neglect identity card, the property of the government issued to his for his use' and under Section 39(b) for 'without sufficient cause overstaying leave granted to him'. The petitioner pleaded guilty of both the charges. The officer holding the trial after due compliance of provisions of Army Rule 115(2) found him accordingly, and sentenced him to be dismissed from service. However, considering the young age of petitioner, on humanitarian grounds, he shall be deemed to have been discharged with effect from the date of his dismissal took effect. Before recording the plea of guilty offered by the 15 accused, the Court explained to the accused the meaning of the charges to which he had pleaded guilty and ascertained that accused has understood the nature of charge to which he pleaded guilty. The Court also informed the accused the general effect of plea of guilty and difference in procedure which will be followed consequent to the said plea. The Court having satisfied itself that the accused understood the charges and effect of his plea of guilty accepts and reports the same. The provisions of AR 115(2) are complied with.
8. Here, the main contention of petitioner is that respondents have not followed the procedure. At this stage, it is pertinent to observe the procedure for dismissal / discharge of undesirable JCOs / WOs/ OR.
Procedure for Dismissal/Discharges or undesirable JCOs/WOs/OR:
4. AR 15 and 17 provide that a JCOs/WO/OR whose dismissal or discharge is contemplated will be given a show cause notice. As an exception to this, services of such a parson may be terminated without giving his a show cause notice provided the competent authority in satisfied that it is not expedient or reasonably practicable to serve such a notice. Such cases should be rare, eg. where the interests of the security of the state as require. Where the serving of a show cause notice is dispended with, the reasons for doing so are required to be recorded. See proviso to AR 17.
5. Subject to the foregoing, the procedure to be followed for dismissal or discharge of a person under AR 13 or AR 17, as the case may be, is set out below :-16
(a) Preliminary Enquiry: Before recommending discharge or dismissal of an individual the authority concerned will ensure (1) that an impartial enquiry (not necessarily a court of Inquiry) has been made into the allegations against him and that he has had adequate opportunity of putting up his defence or explanation and of adducing evidence in his defence.
(11) that the allegations have been substantiated and that the extreme step of termination of the individual's service is warranted on the merits of the саsе.
(b) Forwarding of Recommendations: The recommendation for dismissal or discharge will be forwarded, through normal channels to the authority competent to authorize the dismissal or discharge, as the case may be, along with a copy of the proceedings of the enquiry referred to in(a) above.
(c) Action by Intermediate Authorities: Intermediate authorities through whom the recommendations pass will consider the case in the light of what is stated in (a) above and make their own recommendations as to the disposal of the case.
d) Action by competent Authority: The authority competent to authorize the dismissal or discharge of the individual will consider the case in the light of what is stated in --
a) above, If he is satisfied that the termination of the individual's service is warranted, he should direct that show cause notice be issued to the individual in accordance with AR 13 or AR 17 as the case may be. No lower authority will direct the issue of a show cause notice. The show cause notice should cover the full particulars of the cause of action against the individual, the allegations must be specific and supported by sufficient details to enable the individual to clearly understand and reply to them. A copy of the proceedings of the enquiry held in the case will also be supplied to the individual and he will be afforded reasonable time to state in writing any reasons he may have to urge against the proposed dismissal or discharge.
e) Action on Receipt of the Reply to the show cause Notices..17
The individual's reply to the show cause notice will be forwarded through normal channels to the authority competent to authorize his dismissal/discharge together with a copy of each of the show cause notice and the proceedings of the enquiry held in the case and recommendations of each forwarding authority as to the disposal of the case.
(f) Final orders by the competent Authority: The Authority competent to sanction the dismissal/discharge of the individual will before passing orders reconsider the case in the light of the individuals reply to the show cause notice. A person who has been served with a show cause notice for proposed dismissal may be ordered to be discharged if it is considered that discharge would meet the requirements of the case. If the competent authority considers that termination of the individuals services is not warranted but any of the actions referred to in (b) to (d) of para 2 above would meet the requirement of the case, if the competent authority accepts the reply of the individual to the show cause notice as entirely satisfactory, he will pass orders accordingly. Note :- 1. As far as possible, JCO, WO and OR awaiting dis missal orders will not be allowed to mix with other personnel.
2. Discharge from service consequent to four red ink entries is not a mandatory or legal requirement. In such cases, commanding officer must consider the nature of offences for which each red ink entry has been awarded and not be harsh with the individual, especially when they are about to complete the pension-able service. Due consideration should be given to the long service, hard stations and difficult living conditions that the OR has been exposed to during his service, and the discharge should be ordered only when it is absolutely necessary in the interest of service. such discharge should be approved by the next higher Commander.
(g) Carrying out Dismissal/Discharge :on receipt of the orders of the competent authority for dismissed/discharge, all action to effect dismissal/discharge will be taken by the Regt Centre/Record office, or the Unit, as the case may be.
Procedure for discharge of Inefficient JCOs/WOs/OR:
6. Such JCO, WO and OR will remain with the unit and will be dealt with as in paras 4 and 5 above in so far as it relates 18 to discharge from service.
However, the case of respondents is that discharge procedure will be followed for disposal of undesirable and insufficient JCOs., WOs and ORs., but not to petitioner, who is not discharged from service nut dismissed from service by Summary Court Martial.
9. As regards the contention of petitioner that as per Rule 38(2)(c), the 4th respondent, who framed the charges conducted Summary Court Martial and gave verdict, it is stated by the respondents that summary of evidence was recorded by Capt. Purushootham on orders of officiating commanding officer Major PS Sunil Kumar; trial of petitioner was held by Colonel Arun Tuli, Commanding Officer the officer holding the trial has given certificate to the effect that he perused the summary of evidence before signing the charge sheet. He was neither presiding officer nor the member of Court of Inquiry as the same was conducted by Captain AA Rathinan on the orders of the Commanding Officer and the members of the court of inquiry were Presiding Officer -Capt. Rethinam, Members 1 - Sub T.C. Sharma, Member 2 - Nb/Sub R.K. Barok. Hence, the contention of petitioner that the 4th respondent, who investigated the charges before the trial and he himself is ineligible and 19 disqualified to be an officer to hold the Summary Court Martial as per Section 39(2)(c) is not true and correct.
10. The case of petitioner is that Summary Court Martial is presided over and conducted by Capt. AA Rathinam who is not the immediate second in rank to the commanding officer Mr. Arun Tuli. As per Regulation 54, if the unit Commanding Officer is absent, his powers can be delegated to the second in command in the unit i.e. the Lt. Commander only. But in this case, AA Rethinam who conducted Summary Court Martial was Captain as is evident from the material submitted by the respondents. Hence, he is not competent to conduct the said proceedings.
11. Petitioner filed Appeal under Section 164(2), the same was considered by the 1st respondent on humanitarian grounds and remitted his dismissal into discharge despite petitioner accepted the guilt and he never wanted to avail the remedy to cross-examine any of the witnesses and he has given up his right. Petitioner was attached to EME Depose, Secunderabad for disciplinary purpose. On 15.11.2000, court of Inquiry was ordered by commanding officer with one presiding officer and two members. A tentative charge sheet was framed by officiating commanding officer Major PS Sunil 20 Kumar based on the evidence which came up in Court of enquiry. As per Rule 22 basing on tentative charge sheet, charges against petitioner were heard by the commanding officer. As per Rule 31, charge sheet was signed by Commanding Officer. As per Rule 22, all charges against petitioner were heard by Commanding Officer. As per Rule 22(3)(c), Commanding Officer may order for recording of summary evidence. As per Rule 23, procedure for taking down the summary of evidence is done by commanding officer himself or any officer he may direct to take down the same in writing. As per Section 116 of Army Act, summary Court trial may be held by commanding officer and he alone can constitute the Court. As per Rule 31, the final charge sheet shall be signed by Commanding Officer. Summary Court trial was done by Commanding Officer Col. Arun Tuli. Hence, it is clear that respondents have followed the procedure as per the Army Act and the Rules and the 4th respondent is competent to pass the said order of dismissal.
12. Respondents stated that with regard to reason for overstaying, petitioner mentioned as 'ill-health' which is contrary to the telegrams sent by him informing that his grandparents died. It shows the attitude of petitioner that he 21 has not come before this Court with clean hands. The respondents also contend that when petitioner accepted the guilt of offence and declined to avail the remedy of cross- examination, he has no right to question the procedure of enquiry. Further, they contend that under Section 14 of the Armed Forces Tribunal Act, 2007, service matters lie to the Tribunal constituted under the said Act, hence, he has to approach the said Tribunal for redressal of his grievance.
13. In view of the foregoing discussion, this Court is of the opinion that the petitioner is not entitled for the relief sought for and the Writ Petition is liable to be dismissed.
14. The Writ Petition is accordingly, dismissed. No costs.
15. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 05th December 2023 ksld