1 S.B.Civil Writ Petition No.88/2008 Rect. Pawan Singh Vs. Union of India & Ors. Date of order : 04.02.2009 HON'BLE MR.JUSTICE PREM SHANKER ASOPA Mr.S.B.Singh for petitioner. Mrs. Anupama Chaturvedi for the respondents. Heard learned counsel for the parties. By this writ petition, the petitioner has challenged the order of the dismissal dated 12.07.2007 (Annexure-9) passed by Commanding Officer, Armt and Elecs Regt. after summary court martial which has been confirmed by the Lieutenant General on 06th of December 2007 which has been marked as Annexure-14 alongwith an additional affidavit. Counsel for the petitioner submits that he has never pleaded guilty but he was asked to sign the proceedings wherein the guilty has been mentioned by the authorities under the Head ARRAIGNMENT (Annexure R/1). Counsel further submits that the summary court martial proceedings were held in violation of 115(2) of Army Rules. He also submits that the said plea of guilt has been challenged by him before the confirming authority on the ground that the improper appreciation of the evidence by the summary Court martial on mala fide findings and trial 2 and conviction were not borne out by record and appears to be mere conjuncture and accusations. He has also pleaded in the confirmation petition, that the complaint was lodged with an ulterior and false motive in a mischievous manner by the petitioner's uncle who happened to be the Sarpanch of the Village having influence on the local administration due to Village political rivalries within the family. But the said aspect was not considered by the confirming authority. Counsel for the respondents submits that due compliance of Rule 115(2)/2(A) has been made and the petitioner has rightly been dismissed from the service on founding him guilty. The statement of the accused was also considered by the confirming authority and it was observed that even if it is believed to be true it is not offered any justification for obtaining enrollment showing him to be domicile of District Jhunjhunu whereas he knew that his present address is that of District :- Mahendergarh (Haryana). In rejoinder the counsel for the petitioner also submits that the domicile and resident denotes of different connotation and further the Village Urika in Teshil Chirawa District : Jhunjhunu (Rajasthan) is a border 3 Village of Rajasthan and Haryana, further the Village Nagla Khet Ki Dhani just one kilometer away from that which is within Haryana and the petitioner is having property at both the places, but the ration card is of Jhunjhunu and further first verification of the District Collector is of Jhunjhunu (Rajasthan). But the said aspect, as well as basis of complaint by his uncle with ulterior motive has not been considered and further aspect that in border Village one property of the resident of the border village may partly fall in one State and partly in another. I have gone through the record of the writ petition and further considered the rival submissions of the parties. In my view the law is well settled on the issue that the admission of guilt made can only be assail/explain before the same authority by filing review/reconsideration petition. In this petition, the petitioner has produced ration card of Village Urika and there are documents of the District Collector, Jhunjhunu of first verification wherein the petitioner has been shown as the permanent resident of Village Urika. In the aforesaid facts and 4 circumstances, I think it proper that one more opportunity be given to the petitioner to assail/explain the said admission made under the facts and circumstances and further brought to his notice all the aforesaid documents before the same authority i.e. Commanding Officer, Armt and Elecs Regt. The confirming authority has not given any finding on the issue of complaint being filed by his uncle with ulterior motive and political rivalry. The writ petition is partly allowed as indicated under :- (i). The order of confirmation dated 06.12.2007 (Annexure-14) is set aside and further the order of the dismissal dated 12.07.2007 (Annexure-R/1) is kept in abeyance. (ii). It is directed that the petitioner be afforded an opportunity to make submission on the aforesaid issues and further the authority concerned will also consider the fact that whether petitioner has not pleaded guilty and the compliance of rule 115(2) was made or not on submitting a representation within a period of one month from today and within a period of further one month to 5 Commanding Officer, Armt and Elecs Regt. to pass an appropriate order. (PREM SHANKER ASOPA),J. Gandhi H/2