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8. Mr. N. N. Tiwary learned Counsel appearing on behalf of the petitioner has raised a short question in support of this application. learned Counsel submitted that from a bar perusal of Section 39 of the Army Act it whould appear that the same is not applicable in a case but the petitioner has been found guilty for unauthorised absence. learned Counsel submitted that the petitioner's unauthorised absence has been regularised by awarding punishment to him and in that view of the matter the plea of the respondents cannot be accepted. learned Counsel further drew my attention to the certificate of service which is contained in Annexure-1 to the writ application and submitted that even therein no period of non-qualifying service has been mentioned and in paragraph 4 thereof it has clearly been stated that the petitioner has been discharged by the order of Commandant upon completion of 15 years and 244 days of service.

14. In this case, this Court is concerned with the punishment awarded to the petitioner for his alleged unauthorised absence of 1173 days.

15. For the aforementioned period of unauthorised absence, the petitioner was awarded punishment and his period of absence was regularised. If this be the position in my opinion, the petitioner cannot be doubly punished.

16. In terms of the provision of Section 23 of the Army Act a certificate of service is to be granted. Such certificate of service is, therefore, statutory in nature. The certificate granted to the Army personnel is binding upon the respondents.

The aforementioned regulation is not applicable in the facts and circumstances of the case as admittedly the period of unauthorised absence as condoned and the said period had been regularised.

19. From a bare perusal of the aforementioned regulation 123, it is evident that the same applies in a case where a person has been found guilty of 'desertion' in terms of Section 38 of the Army Act. Under the provision or" Section 3! of the Army Act, a conviction upon a deserter must be passed by a Court Martial. No such case has been made out by the respondents so far as the petitioner is concerned.