IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1142 of 2010 1. The Union Of India Through The Secretary Ministry of Defence, Govt. Of India, New Delhi 2. The Chief Of The Army Staff, Army Head Quarters, New Delhi 3. The Commandant, Bihar Regimental Centre Cantonment Area, Danapur, Patna, Bihar 4. The Station Commander, Job Sub-Area, Cantonment Area Danapur, Patna Versus Niraj Kumar Singh S/O Shri Karamaveer Singh R/O Vill.- Mohanpur, P.O. & P.S. Dharahara, Distt.- Munger. ----------- For the Appellants : Mr. Manan Kumar Mishra, Sr. Advocate. Mr. Maqbool Ahmad, C.G.C. For the Respondent : Mr. Gyanendra Kumar Singh, Advocate. 08 05-08-2011 Challenge in this L.P.A. raised against an order dated 25th June, 2010 passed by Single Judge in C.W.J.C. No.4092 of 2010, quashing Annexure-3, and order passed by the authorities concerned after concluding Court Martial initiated against the respondent-petitioner. Brief fact of the case be summarized. As per pleading of the respective parties placed before writ court, respondent-petitioner admittedly was a sepoy who was posted at Tinsukia from where he was shifted to Bihar Regimental Centre on compassionate ground for getting his wife treated. During course of his stay at Danapur Regiment, some sort of occurrence had taken place for which there happens to be version and counter version on 30.09.2008 at 7.00 P.M. for which he was proceeded with and got an adverse order “severely reprimand”. Subsequently thereof, on 03.10.2008, wife of respondent-petitioner, namely, Sulekha Singh made complaint to the Higher Authorities in 2 pursuance of which an enquiry was entrusted. Meanwhile, as is evident there has been an allegation with regard to absence of petitioner and during midst thereof, on account of non-presentation of respondent-petitioner, the enquiry so commenced of an allegation took through complaint dated 03.10.2008 got disposed of. Side by side on account of absence of respondent-petitioner, he was proceeded with and due to his absence, he was declared deserter against which C.W.J.C. No.6112 of 2009 was filed at the behest of respondent-petitioner which was disposed of on 21.5.2009 having a liberty to the respondent-petitioner to participate in the Court Martial proceeding. The court martial proceeding was halfheartedly attended by the respondent-petitioner and on account thereof punishment was imposed upon him by the authorities (a) rejection in rank (b) dismissal from service, and (c) further having inflicted with R.I. for one year under civil prison. While respondent-petitioner was served with Annexure- 12, the charges, filed instant C.W.J.C. and during pendency thereof, the Court Martial concluded and accordingly punishments have been inflicted. Learned counsel for the Union of India while assailing the finding of the learned Single Judge has asserted and submitted that the writ was not at all maintainable because of the fact the Army Act, which is a codified Act itself provides the remedy where under there is provision of revision available to the respondent- 3 petitioner as provided under Section 160 of the Act. Further submitted that own assertion of respondent-petitioner supports the finding of the Court Martial where under respondent-petitioner has been found to be a deserter on account of his absence for three hundred days without leave as provided under Section 39 of the Act. Then submitted that the writ court, while exercising the power under Section 226 of the Constitution transgressed the limit by appreciating the evidence which it ought not to be because while dispensing the justice under Article 226 of the Constitution, High Court can not act as appellate court. Not only this it has also been submitted that there are conclusive documentary evidence with regard to absence of respondent-petitioner for three hundred days in contravention of service Rules. Therefore, submission is that the order is fit to be set aside. Considering thereupon L.P.A. is bound to be allowed. On the other hand learned counsel for the respondent- petitioner submitted that mere by passing another remedy will not curtail the extraordinary power vested to court under Section 226 of the Constitution. Also submitted that when there happens to be malafide intention at the part of the authority concerned, which is evident from the record itself, then in that event, a privilege having in favour of respondent-petitioner should not be allowed to curtail. Then submitted that the whole skirmish visualized after reporting the matter to the high-ups by the wife of the respondent-petitioner 4 on 03-10-2008 and then only to teach a lesson, with ulterior motive the whole events has been manufactured in such way that respondent-petitioner should be declared as deserter. Not only this, the proceedings itself discloses that there has been utter violation of the Act and the Rules specifically guiding the proceedings of Court Martial. It has further been submitted that only intentional lapses have been pointed out by the Hon’ble Single Judge and that led quashing of Annexure-13, the conclusion arrived at under collusive, capricious proceeding of Court Martial. After hearing both sides as well as going through the record it transpires that three kinds of punishment has been inflicted under Section -13 i.e. (a) reduction in rank (b) dismissal from service and (c) R.I. for one year. Whether the aforesaid punishment is permissible under summary court martial which the respondent-petitioner faced. Nature of punishment to be awarded is incorporated under Section 71 of the Act which does contain the punishment so inflicted. Section 73 deals with combination of punishment which says “a sentence of court martial may award in addition to, or without anyone other punishment, the punishment specified in clause (d) or clause (e) of Section 71 and anyone or more of the punishment specified in clause (f) to (l)” that means to say apart from having punishment inflicted as provided under (a), (b), (c), it may also be supported with other nature of punishment categorized there under. 5 The aforesaid Section did not distinguish the identity of Court Martial as provided under Section 108 of the Act which contains (a) General Court Martial (b) District Court Martial (c) Summary General Court Martial (d) Summary Court Martial. There immense no controversy with regard to conduction of Court Martial against the respondent-petitioner identified as Summary Court Martial. Section 120 deals with the power of Summary Court Martial and after chronological scrutiny of all the sub-sections incorporated therein, the Summary Court Martial has been vested with all kinds of punishment to be inflicted save and except sentence of death, transportation, or of imprisonment not more than one year in case of delinquent being the rank of lieutenant Colonel and not more than three months in case of delinquent being below the rank of lieutenant colonel. Admittedly, the respondent-petitioner happens to be Hawaldar Clerk. The conduct of appellant-respondent again became under close scrutiny which gives some foul smell on account of the fact that it was filed on 08.03.2010 and was taken for hearing on 19.03.2010, on which date the appellant-respondent took an adjournment for producing the record of Court Martial and the next date was fixed on 22.03.2010, on which date the Annexure-13 was passed. The record was placed on that very date. That means to say, the appellant-respondent was well aware of the fact that Annexure- 12 was already under challenge at the behest of respondent- 6 petitioner and so should have refrained themselves till conclusion of the writ petition than to pass the order on the day on which the proceeding was to be placed before the court. So far background is concerned, that has elaborately been dealt with by the learned Single Judge. So far alternative remedy is concerned, taking into account the conduct of the appellant-respondent, it looks hazardous to accept accede with the submission advanced on behalf of appellant-respondent. Thus, we are fully in agreement with the finding arrived at by the learned Single Judge consequent thereupon the appeal is found different devoid of merit and is, accordingly, dismissed. However, in facts and circumstances of the case, the parties will bear their own cost. PN (Prakash Chandra Verma, J.) (Aditya Kumar Trivedi, J.)