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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 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.

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 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 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.

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.