IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 OP(AFT).No. 961 of 2011(S) ------------------------------------ PETITIONER: HAV.THOMA.C, NO.10358576 Y, 928 DSC P1, INS UTKROSH, ATT 2 MTN DIV ORD UNIT, C/O.99 APO, (PARAVILA PUTHEN VEEDU, VAYAKKAL.P.O, KOLLAM DISTRICT). BY ADV. SRI.K.KARTHIKEYA PANICKER SMT.DAYA K. PANICKER RESPONDENTS: 1. COMMANDING OFFICER, 2 MTN DIV ORD UNIT, PIN-909 002, C/O.99 APO. 2. SENIOR RECORD OFFICER, RAKSHA SURAKSHA CORPS ABHILEKH DEFENCE SECURITY CORPS RECORDS, PIN-901277, C/O.56 APO. 3. OFFICE IN CHARGE 690 DSC PLATTOON, ORDINANCE FACTORY PROJECT, YEDDUMAILARAM, MEDAK(AP)-502205. BY ADV. SMT.K.V.RASHMI, CGC FOR R1-3 THIS OP (ARMED FORCES TRIBUNAL - Art.227) HAVING COME UP FOR ADMISSION ON 28/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.Basheer & P.Q.Barkath Ali, JJ. --------------------------------------------------- O.P.(AFT)No.961 of 2011 --------------------------------------------------- Dated this the 28th day of March, 2011 JUDGMENT Basheer, J. Petitioner is stated to be serving in the Indian Army as Havildar. It appears that during 2009, petitioner was charge sheeted and tried by the Summary Court Marshal for the offences under Sections 52(f) and 63 of Army Act. It is seen that petitioner was found guilty under Section 63 of Army Act and sentenced to undergo rigorous imprisonment for sixty days. It was further directed that his pay and allowances be stopped till a sum of Rs.40,000/-, that was assessed to be the loss suffered by the Establishment, be recovered from him. Exhibit P1 is stated to be the communication issued by the Commanding Officer, 2 Mtn Ord Unit in this connection. 2. Aggrieved by the order of punishment imposed on him, petitioner is stated to have preferred Exhibit P3 memorandum of appeal in January, 2010. The grievance of the petitioner is that the Appellate Authority has not so far taken a decision on his appeal. It is, in the above circumstances, that the petitioner has preferred this original petition under Article 227 of Constitution of India praying for an appropriate direction in this regard. OPAFT 961/2011 2 3. When this original petition came up for consideration, we directed Smt.K.V.Reshmi, the learned standing counsel, to find out whether the appeal is still pending consideration before the Authority concerned. After getting instructions, learned counsel submitted that the petitioner had in fact submitted the appeal before a wrong Authority. According to the learned counsel, the appeal ought to have been presented before the Commanding Officer, 2 Mtn Ord Unit or at least before the Authority holding the rank equivalent to a Brigadier in the said Mountain Division as per Paragraph 164(3) of Army Act. It is further submitted by the learned counsel that the appeal preferred by the petitioner could not be taken up for consideration because of this mistake committed by him. She further submits that the error had been pointed out to the petitioner earlier. 4. However, there is nothing on record to show that any such communication had been sent to the petitioner so far. Learned counsel for the petitioner asserts that no such communication had ever been sent to the petitioner till date. Any how, we do not propose to go further into that area of the controversy at this stage. Learned counsel submits that petitioner is prepared to submit a fresh appeal before the competent authority so as to reach the said Authority within one month from today. OPAFT 961/2011 3 5. If such an appeal is received, the Authority concerned shall entertain the same ignoring the delay, if any. An appropriate decision shall be taken by the Authority concerned after affording an opportunity of hearing to the petitioner. A final decision in the matter shall be taken as expeditiously as possible, at any rate, within four months from the date of receipt of the appeal. The original petition is disposed of in the above terms. (A.K.Basheer, Judge) (P.Q.Barkath Ali, Judge) tkv