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2006 DIGILAW 816 (KAR)

NAIK SHEKHARAPPA OLEKAR v. UNION OF INDIA

2006-10-11

D.V.SHYLENDRA KUMAR

body2006
( 1 ) WRIT petition by a person who was serving as Nayak in the Indian Army attached to 138, Medium regiment, who is aggrieved by the order of reduction in rank and dismissal from service for committing offences under the Army Act, 1950 [for short, the Act], particularly under Section 39 (a) of the Act on being tried by Summary Court martial proceedings in terms of the order dated 1-11-2002 [copy at Annexure-A to the writ petition]. ( 2 ) PETITIONER has impugned the legality of this order on several grounds, inter alia, urging that he was never given a proper opportunity to defend himself; that the procedure followed in trying him and inflicting the punishment of dismissal from service by Summary court Martial is not in consonance with the provisions of the Act and the Army Rules, 1954 [for short, the Rules], and on the other hand, it is in contravention of the provisions of the Act and the Rules and the order is not sustainable; that the appeal/revision to the higher ups having not produced any positive result, is seeking relief before this Court invoking the writ jurisdiction under Articles 226 and 227 of the Constitution of India. ( 3 ) NOTICES had been issued to the respondents. Respondents have entered appearance through the Standing Counsel for Central government and have also filed statement of objections in response to the notice issued regarding Rule. Thereafter, the petition has been admitted on 12-4-2006. ( 4 ) THE statement of objections filed on behalf of the respondents, inter alia, discloses that the petitioner is not entitled for any of the relief sought for in the writ petition; that the petition averments are not correct: that the petitioner was a habitual absentee from duty; that his record is not as excellent as the petitioner claimed in the petition; that the petitioner had disobeyed not only the directions of his command officers but also had absented without leave. The statement of objections also, though perhaps incorrectly, indicates that the petitioner has been tried and punished for the offence of desertion; that the petitioner voluntarily deserted while on active duty; that the petitioner in fact had deserted the post and duty, was apprehended with the help of civil police; that the petitioner was in fact arrested by the police at his native village while he was actually ploughing the land; that he had only offered flimsy excuses for his absence without leave; that a Court of enquiry was held for the purpose of declaring the status of the petitioner, as he had remained absent without valid leave and had also been declared as a deserter in terms of the Army Regulation No. 106 and the petitioner, after his arrest and recording of evidence, had been apprised of the two charges and was called upon to explain; that after the conclusion of the recording of summary evidence, the Commanding Officer pressed one of the two charges viz. , absence without leave, which is punishable under Section 39 (a) of the Act and the Commanding officer had ordered that this charge be pressed and the petitioner be tried for the charge by the Summary Court Martial; that he was so tried by the Summary Court Martial wherein the petitioner has pleaded guilt of the charge and accordingly the Summary Court Martial had passed the order of dismissal of petitioner from service; that the order passed by the Summary Court Martial is justified and is in consonance with the Act and the Rules and the army Regulations and the plea of guilt recorded by the Summary Court Martial is in consonance with law and therefore no interference is called for in the proceedings of summary Court Martial. ( 5 ) A few facts before noticing the legal contentions urged on behalf of the parties by the learned counsel for the petitioner and the leaned standing counsel are as under. The petitioner had joined the Indian Army as sepoy during the year 1988 and subsequently had been promoted as Lance Nayak and later on as Nayak. The proceedings and the developments which are subject-matter of the writ petition are one that took place while the petitioner was serving as Nayak. The petitioner had joined the Indian Army as sepoy during the year 1988 and subsequently had been promoted as Lance Nayak and later on as Nayak. The proceedings and the developments which are subject-matter of the writ petition are one that took place while the petitioner was serving as Nayak. The petitioner in fact had been relieved from his unit 138, medium Regiment, in terms of the movement order issued by the commanding officer on 31-3-2002 [copy at Anexure-E] and was to report to 28, Rashtriya Riffle with necessary preparatory time and travel time provided for. ( 6 ) IT is the version of the petitioner that before that he had gone to his native place and as he had fallen sick, could not report to his transferred unit within the permitted time, but could report only on 11-5-2002. It is also the version of the petitioner that he was not accepted by the transferred unit on the premise that he was reporting belatedly and the petitioner finding no option had gone back to his parent unit and reported there on 17-5-2002, but it is the version of the petitioner that he was neither permitted to join here also but was ridiculed, ill-treated and asked to go back to the transferred unit. It is also the version of the petitioner that at that stage finding him-self in a position where he was not being accepted either by his parent unit or the transferred unit, he went back to his native village and engaged himself in farming activity. ( 7 ) THE parent unit viz. , 138,medium Regiment, took notice of the absence of the petitioner without any valid leave and appears to have conducted a Court of enquiry in this regard and it is the version of the respondents that pursuant to the Court of enquiry proceedings, the petitioner had been declared as a deserter in terms of proceedings dated 30-8-2002. Thereafter, efforts were taken by the army personnel to apprehend the petitioner through the assistance of local police; that he was; personally brought to the unit under custody and the petitioner was apprised of two charges viz. , he had absented himself without leave and without sufficient cause the petitioner overstayed the leave granted to him, which are offences punishable in terms of sections 39 (a) and 39 (b) of the Act respectively. , he had absented himself without leave and without sufficient cause the petitioner overstayed the leave granted to him, which are offences punishable in terms of sections 39 (a) and 39 (b) of the Act respectively. It is also the version of the respondents that thereafter recording of summary of evidence took place and as a result of reconiing of the summary of evidence and on assessment of such evidence by the commanding officer, the commanding officer in terms of the order dated 31-10-2002 while decided to drop the charge relating to overstaying: the leave without sufficient cause, indicated that the charge of absence without leave has to be pressed and for such purpose the petitioner has to be tried by the Summary Court Martial. It appears, thereafter on the very nextday the Summary Court Martial was held and the petitioner was arrayed that he pleaded guilt to the charge and the Court proceeded to pass the impugned order, dismissing the petitioner from army service and it is this order that is questioned before this Court. ( 8 ) THE petitioner has also pleaded that he is not to be blamed for remaining absent from army service, as he had tried his level best to join the transferred unit or his parent unit, but was thrown out at both the places; that even after he had represented to the Chief of Army staff about the harsh treatment meted out to him by indicating the same to the Chief of army Officer in his representation dated 20-7-2002, which in fact had elicited a response as per reply dated 13-10-2002 [copy at. Annexure-Hl), stating that the petitioner will not be humiliated nor had he been humiliated earlier as alleged in the letter, that the petitioner was not prompt in following army rules, regulations and proper discipline, that the rqpre-sentation also was not given through proper channel, but an assurance was held out that the petitioner will be treated in accordance with law and all necessary opportunities 'will be afforded to the petitioner as and when it becomes necessary in defending any charge or any case against the petitioner and was nevertheless advised to adhere to the army rules and procedures during the course of tenure in the army and if the petitioner has any grievance he should redress the same through superior officers and assured appropriate action would be taken. ( 9 ) THIS is relied upon to indicate the bona fides of the petitioner in remaining absent outside his service as being the result of the denial of respondents to permit the petitioner from joining the services subsequent to issue of movement order. ( 10 ) APPEARING on behalf of the petitioner, col. Bhupinder Singh (Retd), learned counsel for the petitioner has raised several contentions. It is firstly urged that commanding officer of 138 Medium Regiment had no competence to hold any disciplinary proceedings or to constitute a Court of Enquiry or recording summary of evidence or even constitute a summary Court Martial to try the petitioner, as even in terms of the movement order, the petitioner had been struck off from the roles of 138, Medium Regiment and asked to report to 28, Rashtriya Rifles unit. It is also contended that though it is a fact that the petitioner did come back to his parent unit on 17-5-2002 and reported to his parent unit, nevertheless on the very movement order he was advised to go back to the transferred unit even in terms of the records and therefore the commanding officer of 138, Medium Regiment had no competence or jurisdiction to take any action as against the petitioner. ( 11 ) IT is the next contention of the learned counsel for the petitioner that the petitioner's appeal preferred under Section 164 (2) of the act has not been considered in a proper manner; that though the impugned order itself recites that the petitioner has a right of appeal, such an appeal has never been considered in a proper manner; that it has been rejected by the authority viz. , fourth respondent, who had no competence to consider the appeal under section 164 (2), but on the other hand, it is the contention of Col Bhupinder Singh that it is only the Chief of Army Staff who has the competence to dispose of the appeal and therefore submits that in the light of the law the competent authority has not disposed of his appeal under Section 164 (2) of the Act and even at this point of time, a writ of mandamus is to be issued to the competent authority viz. . the Chief of Army Staff to dispose of the appeal in the alternative. . the Chief of Army Staff to dispose of the appeal in the alternative. ( 12 ) LEARNED counsel for the petitioner has next contended that even in holding the Summary Court martial, the procedure as contemplated under rules 22,34 and 184 of the Rules have not been followed, which are mandatory for a trial before the Summary Court Martial. And having not complied with such mandatory requirements, the impugned order, purported to be one passed by the Summary Court martial is not an order in the eye of law and it is required to be quashed by issue of writ of certiorari. ( 13 ) IT is incidentally contended by the learned counsel for the petitioner that the petitioner has never been given the necessary documents before he was arrayed in the Summary Court Martial nor had he been given adequate opportunity to prepare himself, in the sense that while the commanding officer decided to press the charge under Section 39 (a) of the Act, in terms of the order dated 31-10-2002, the Summary Court Martial is indicated to have tried the petitioner from the next day itself, without any further communication nor allowing the mandatory interval of 96 hours required between the apprisal of the intimation to try by the Summary Court martial and the time of arraying the petitioner and therefore the very finding of guilt recorded by the Court assuming that it is on the so-called admission of the petitioner cannot stand in law and therefore the order is required to be quashed. ( 14 ) INCIDENTALLY, learned counsel for the petitioner has urged that the petitioner had never been furnished with the Court of enquiry proceedings; that he had been declared a deserter even without affording a proper opportunity; that it could affect his reputation; that in fact the petitioner was not a deserted, but he had been forced to go back to his native place, as he had been rejected both by the parent unit and the transferred unit and in spite of his representation to the Chief of Army staff, the petitioner had not been permitted to join the services and therefore, in a situation like this, the respondents having not followed the necessary procedure for holding Court of enquiry in terms of Army Rule 179 nor having adhered to the procedure contemplated under Rule 180, has declared the petitioner as deserter, which has the effect of affecting the reputation of the petitioner and placing reliance on such proceedings, though incidental and as indicated in the statement of objections also, for the purpose of passing the impugned order, the order is required to be quashed for this reason also. ( 15 ) MR. Rajendra, learned Central Government Standing Counsel appearing for the respondents has very vehemently submitted that the petitioner has availed of all the remedies available under the Act; that he had been given ample opportunity to defend himself before the Summary Court Martial; that even on his pointed query as to whether he wishes to cross-examine any of the witnesses on behalf of prosecution and as to whether he has any witnesses to lead evidence on his side, he has replied in the negative; that he has consciously admitted guilt on being arraigned before the Summary Court Martial and accordingly the punishment of dismissal from service cannot be termed as either illegal or as contrary to any of the procedural requirements. ( 16 ) IT is also the specific submission of the learned Standing Counsel that the appeal/petitian presented by the petitioner has been duly considered by the competent officer, namely, general Officer Commanding-in-Chief, southern Command, Pune and the same having [been on proper consideration dismissed and the petitioner having availed of the remedy of appeal also, the petitioner cannot turn around and seek for overall review of the proceedings before the Summary Court Martial as though this Court is considering the appeal against the order passed by the Summary court Martial; that the order dated 23-6-2003 has been subsequently communicated to the petitioner which has been produced as An-nexure-Al along with the amended petition. ( 17 ) LEARNED Counsel for the respondents urge that in view of the proper consideration of the grievance of the petitioner and in fact the petitioner himself having admitted his guilt, there is nothing further at all that is required to be done and therefore the petition deserves to be dismissed. ( 18 ) LEARNED standing counsel for the respondents, by drawing the attention to annexure-Rl and R2 submits that in terms of the order dated 26-10-2002 [copy at Annexurer2], the decision was taken to constitute a summary Court Martial, to assemble a Summary Court Martial on 1-11-2002; that Lt. Col. K. D. S. Sahney, Officiating Commanding Officer of the unit will act as the Court and in attendance will be Major Ashok Kumar and sub/gd Hema Ram and that Capt. Yashpal bisht will act as the friend of the accused etc. Col. K. D. S. Sahney, Officiating Commanding Officer of the unit will act as the Court and in attendance will be Major Ashok Kumar and sub/gd Hema Ram and that Capt. Yashpal bisht will act as the friend of the accused etc. , that the order was issued by Major Ashish chetan and this was followed up by furniish-ing summary of evidence containing six pages of Regimental Order, copy of the charge-sheet and those were received and acknowledged by the petitioner on 27-10-2002 and therefore the petitioner cannot make a grievance that he had not been furnished with the necessary documents before being arraigned; that in feet after so informing the petitioner even on 26-10-2002 and furnishing copies on 27-10-2002, he was arraigned only on 1-11-2002; that there is more than 96 hours between handing over the documents and time of arraignment and this meets the requirement of Rule 34 of the rules and as before the Summary Court Martial, the petitioner simply pleaded guilty, there was nothing further to be done and the Court proceeded to pass orders and therefore there being due compliance with the procedural requirements, no interference is called for and petition deserves to be dismissed. ( 19 ) COL. ( 19 ) COL. Bhupinder Singh, learned counsel for the appellant has vehemently urged that though the respondents seek to project that there is due compliance with the procedural requirements, in reality it is never so; that the petitioner, a lower ranking person who is not even a Non-Commissioned Officer but just two ranks above a soldier can never have the moral courage to face up to a Commanding officer or to question his decision; that the entire procedure has been hurried through even before the petitioner could realise what was happening; that the unholy hurry with which the proceedings has been concluded, leaves much to be desired and though he had preferred an appeal to the Chief of Army in terms of Section 164 (2) of the Act, that has not been considered by the Chief of Army staff, but disposed of by a lower ranking officer in terms of Annexure-Al which is also an order passed subsequent to the filing of the writ petition; that no credence can be given to this proceedings and in support of his submission that the procedure followed is suspect and not a very satisfactory one and that the entire system calls for an overall review, learned counsel has placed reliance on the decision of the Supreme Court in 'union of india v. Charanjit S. Gill, reported in 2000 (2) Serv LR 755 : ( AIR 2000 SC 3425 ), particularly the observations contained in paragraphs 9, 10 and 11 which read as under : "9. xxxx xxxx xxxx Absence of even one appeal with power to review evidence, legal formulation, conclusion and adequacy of otherwise of punishment is a glaring lacuna in a country where a counterpart civilian convict can prefer appeal after appeal to hierarchy of courts. Submission that full review of finding and/or sentence in confirmation proceedings under Section 153 is provided for is poor solace. A hierarchy of Courts with appellate powers each having its own power of judicial review has of course been found to be counter productive but the converse is equally distressing in that there is not even a single judicial review. Submission that full review of finding and/or sentence in confirmation proceedings under Section 153 is provided for is poor solace. A hierarchy of Courts with appellate powers each having its own power of judicial review has of course been found to be counter productive but the converse is equally distressing in that there is not even a single judicial review. With the expanding horizons of fair play in action even in administrative decision, the universal declaration of human rights and retributive justice being relegated to the uncivilised days, a time has come when a step is required to be taken for at least one review and it must truly be a judicial review as and by way of appeal to a body composed of nonmilitary personnel or civil personnel. Army is always on alert for repelling external aggression and suppressing internal disorder so that the peace-loving citizens enjoy a social order based on rule of law; the same cannot be denied to the protectors of this order. And it must be realised that an appeal from Ceaser to Ceaser's wife - confirmation proceedings under Section 153 - has been condemned as injudicious and merely a lip sympathy to form. The core question is whether at least there should be one appeal to a body composed of non-military personnel and who would enjoy the right of judicial review both on law and facts as also determine the adequacy of punishment being commensurate with the gravity of the offence charged. Judicial approach by people well-versed in objective analysis of evidence trained by experience to look at facts and law objectively, fair play and justice cannot always be sacrificed at the altar of military discipline. Unjust decision would be subversive of discipline. There must be a judicious admixture of both. And nothing revolutionary is being suggested. Our Army Act was more or less modelled on the U. K. Act. Three decades of its working with winds of change blowing over the world necessitates a second look so as to bring in it conformity with liberty-oriented constitution and rule of law which is the uniting and integrating force in our political society. Even U. K. has taken a step of far-reaching importance for rehabilitating the confidence of the Royal Forces in respect of judicial review of decisions of court-martial. Even U. K. has taken a step of far-reaching importance for rehabilitating the confidence of the Royal Forces in respect of judicial review of decisions of court-martial. U. K. had enacted a Court-martial (Appeal) Act of 1951 and it has been extensively amended in Court-martial (Appeals)Act, 1968. Merely providing an appeal by itself may not be very reassuring but the personnel of the appellate Court must inspire confidence. The Court-martial appellate Court consists of the ex-officio and ordinary Judges of the Court of Appeal, such of the Judges of the Queen's Bench Division as the Lord Chief justice may nominate after consultation with the Master of the Rolls, such of the Lords, commissioners of Justiciary in Scotland as the Lord Chief Justice generally may nominate, such Judges of the Supreme Court of the northern Ireland as the Lord Chief Justice of northern Ireland may nominate and such of the persons of legal experience as the Lord chancellor may appoint. The court-martial appellate Court has power to determine any question necessary to be determined in order to do justice in'the case before the Court and may authorise a new trial where the conviction is quashed in the light of fresh evidence. The Court has also power inter alia, to order production of documents or exhibits con-nected with the proceedings, order the attendance of witnesses, receive evidence, obtain reports and the like from the members of the court-martial or the person who acted as judge-Advocate, order a reference of any question to a Special Commissioner for Enquiry and appoint a person with special expert knowledge to act as an assessor (Halsbury's Laws of England, 4th Edn. , paras 954-955 pp. 458-59 ). Frankly the appellate court has power to full judicial review unhampered by any procedural claptrap. Turning towards the U. S. A. , a reference to uniform Code of Military Justice Act, 1950, would be instructive. A provision has been made for setting up of a Court of military appeals. The Act contained many procedural reforms and due process safeguards not then guaranteed in Civil Courts. To cite one example, the right to legally qualified counsel was made mandatory in general court-martial cases 13 years before the decision of the Supreme Court in Gideon V. Waiwright (372 US 335 1963 ). The Act contained many procedural reforms and due process safeguards not then guaranteed in Civil Courts. To cite one example, the right to legally qualified counsel was made mandatory in general court-martial cases 13 years before the decision of the Supreme Court in Gideon V. Waiwright (372 US 335 1963 ). Between 1950 and 1968 when the administration of Justice Act, 1968 was introduced, many advances were made in the administration of justice by civil Courts but they were not reflected in military Court proceedings. To correct these deficiencies the congress enacted Military Justice Act, 1968, the aalient features of which are : (1) a right to legally qualified counsel guaranteed to an accused before any special court-martial; (2)a military Judge can in certain circumstances conduct the trial alone and the accused in such a situation is given the option after learning the identity of the military Judge of requesting for the trial by the Judge alone. A ban has been imposed on command interference with military justice, etc. Ours is still an antiquated system. The wind of change blowing over the country has not permeated the close and sacrosanct precincts of the Army. If in civil courts the universally accepted dictum is that justice must not only be done but it must seem to be done, the same holds good with all the greater vigour in case of court-martial where the Judge and the accused don the same dress, have the same mental discipline, have a strong hierarchical subjugation and a feeling of bias in such circumstances is irremovable. We, therefore, hope and believe that the changes all over the English-speaking democracies will awaken our Parliament to the changed value system. In this behalf, we would like to draw pointed attention of the Government of the glaring anomaly that courts-martial do not even write a brief reasoned order in support of their conclusion, even in cases in which they impose the death sentence. This must be remedied in order to ensure that a disciplined and dedicated Indian Army may not nurse a grievance that the substance of justice and fair play is denied to it. This must be remedied in order to ensure that a disciplined and dedicated Indian Army may not nurse a grievance that the substance of justice and fair play is denied to it. " despite lapse of about two decades neither the Parliament nor the Central Government appears to have realised their constitutional obligations, as were expected by this Court, except amending Rule 62 providing that after recording the finding in each charge the Court shall give brief reasons in support thereof. The judge Advocate has been obliged to record or caused to be recorded brief reasons in the proceedings. Even today the law relating to armed Forces remains static which requires to be changed keeping in view the observations made by this Court in Prithi Pal Siragh bedi's case (supra), the constitutional mandate and the changes effected by other democratic countries. The time has come to allay the apprehension of all concerned that the system of trial by court-martial was not the arch type of summary and arbitrary proceedings. 10. In the absence of effective steps taken by the Parliament and the Central Government, it is the constitutional obligation of the courts in the country to protect and safeguard the constitutional rights of all citizens indluding the persons enrolled in the Armed Farces to the extent permissible under law by not forgetting the paramount need of maintaining the discipline in the Armed Forces of the country. 11. The court-martials under the Acl are not Courts in the strict sense of the term as understood in relation to implementation of the civil laws. The proceedings before courtmartial are more administrative in nature and of the executive type. Such Courts under the act, deal with two types of offences, namely, (1) such acts and omissions which are peculiar to the Armed Forces regarding which no punishment is provided under the ordinary law of the land and (2) a class of offences punishable under the Indian Penal Code or any other legislation passed by the Parliament. Chapter vi of the Act deals with the offences. Sections 34 to 68 relate to the offences of the first description-noted hereinabove and Section 69 with civil offences, which means the offence triable by an ordinary criminal Court. Chapter vi of the Act deals with the offences. Sections 34 to 68 relate to the offences of the first description-noted hereinabove and Section 69 with civil offences, which means the offence triable by an ordinary criminal Court. Chapter VII provides for punishments which can be inflicted in respect of offences committed by persons subject to the Act and convicted by court-martial, according to the scale provided therein. Chapter X deals with court-martials. Section 108 provides that for the purposes of the Act there shall be four kinds of court-martials, that is to say, (a) general court-martial; (b) district court-martial; (c) Summary general court-martial; and (d) Summary court-martial. Court-martials can be convened by persons and authorities as specified in Sections 109, 110, 112 and 118 of the Act. The procedure of court-martials is detailed in Chapter XI of the Act. Section 129 mandates that every general court-martial shall be attended by a Judge advocate, who shall be either an officer belonging to the department of Judge Advocate-General or if no such officer is available, an officer approved by the Judge-Advocate-General or any of his deputies. The accused has a right to challenge the name of any officer composing the court-martial which obviously means that no such objection can be raised regarding the appointment of the Judge-Advocate. No findings or sentence of a general, district or summary general court-martial shall be valid except so far as it may be confirmed as provided under the Act. Under Section 158, the confirming authority has the power to mitigate or remit the punishment awarded by the court-martial or commute that punishment for any punishment or punishments lower in the scales laid down in Section 71. Under section 160 the confirming authority has the power to direct a revision of the finding of a court-martial and on such revision, the Court, if so directed by the confirming authority, may take additional evidence. Any person, subject to the Act, who considers himself aggrieved by any order passed by the court-martial can present a petition to the officer or authority empowered to confirm any finding or sentence of such court-martial and in that case the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceedings to which the order relates;. There is no provision for preferring an appeal against the findings of the court-martial. ( 20 ) WHAT is urged on behalf of the petitioner is that the Army Act and the Rules are the relic of the colonial system; that the procedure followed is so outdated and the provisions had been loaded in favour of the authority rather than safeguarding any interest or protecting the interest of the accused persons before the Court-martial at least to the extent of that being a fair procedure and the person getting a fair opportunity. ( 21 ) IT is in this regard, learned counsel for the petitioner has vehemently urged by drawing attention to the provisions of Rules 22, 34 and 184 of the Rules that the required procedure before constituting a summary Court-martial has not been followed and even before the summary Court-martial, procedure has not been adhered to; that the so-called admission of guilt is more one extracted from out of the petitioner than voluntarily given etc. ( 22 ) LET me consider various contentions on behalf of the petitioner in its order. ( 23 ) THE first contention that the petitioner could not have been proceeded with either as a disciplinary measure or as accused before the Court-martial by the Commanding Officer of 138, Medium Regiment, proceeds on the premise that the petitioner had already been relieved and he had been struck off strength and had been issued movement order to report to 28 - RR Betalian. However, it is also a fact that the petitioner never joined the unit to which he had been transferred. He was, in fact, rejected there and therefore returned to his parent unit. While it is the version of the petitioner that he was not accepted, but was again asked to go back to the transferred unit, submission on behalf of the respondents is that the: petitioner did come back on 1-5-2002 and did remain in the unit, but has remained absent thereafter; that he never went back to the transferred unit nor he remained in the parent unit and on the other hand conveniently went to his native place and particularly the petitioner never reported at his transferred unit and the transferred unit not having accepted him to the unit, he continues to be with 138-Medium Regiment. ( 24 ) THOUGH Col. ( 24 ) THOUGH Col. Bhupinder Singh, learned counsel for the petitioner has drawn attention to some of the documents which had been furnished to learned counsel, particularly the court of inquiry proceedings preceding to the court order dated 1-11-2002, it is obvious that the [petitioner was with the 138-Medium Regiment at least as on 17-5-2002 and had never been admitted to any other unit. If such is the factual position, it cannot be said in respect of disciplinary proceedings or even for any offence Commanding Officer of this unit does not have the competence or jurisdiction to pass the order. In that view of the matter, I am un-able to accept the contention that the entire proceedings has gone on without jurisdiction and this contention is rejected. ( 25 ) THE next contention is that the petitioner's appeal/petition under Section 164 (2) of the Act that had been addressed to the Chief of Army Staff has not been considered and on the other hand it had been considered by the Officer of lower rank, namely, Lieutenant general and in terms of the order at Annex-ure-Al, the same having been rejected, it is no order in the eye of law and in terms of the provisions of Section 164 (2) of the Act, the petition was required to be disposed of only by the Chief of Army Staff-respondent No. 2 herein and not by any other officer. ( 26 ) SECTION 164 of the Act reads as under: "1164. Remedy against order, finding or sentence of Court-martial :- (1) Any person subject to this Act who considers himself aggrieved by any order passed by any Court-martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such court Martial, and the confirming authority may take such steps as may be considered necessary to satisfy as to the correctness, legality or propriety of the order passed on as to the regularity of any proceeding to which the order relates. (2) Any person subject to this Act: who considers himself aggrieved by a finding or sentence of any Court Martial which has been confirmed, may present a petition to the Central Government. (2) Any person subject to this Act: who considers himself aggrieved by a finding or sentence of any Court Martial which has been confirmed, may present a petition to the Central Government. The Chief of the Army Staff, or any prescribed officer superior in command to the one who confirmed such finding or sentence and the Central Government, the Chief of the Army Staff or other officer, as the case may be, may pass such orders thereon as it or he thinks fit. " The section clearly indicates that it iis applicable to a situation where an order cof the court Martial is required to be confirmed by an Officer/authority empowered to coinfirm the same and while during that process the person can seek for a review by the confirming authority or an Officer if the order is so confirmed, thereafter under sub-sectian (2)after confirmation, he is enabled to present petition to the Central Government, Chief of army Staff or any prescribed Officer superior in rank to the one who confirmed the order etc. ( 27 ) WHILE submission that it is only the chief of Army Staff who has to consider the petition/appeal cannot be accepted per se in the light of this section as it can be by any other prescribed officer superior in the rank to the officer who confirmed the same,. The entire contention appears to be redundant as in the present case, the order passed by a summary court Martial is not one which was required to be confirmed and therefore the very provision of Section 164 of the Act is not applicable. Though the impugned order at annexure-A may recite that an appeal lies; to a particular Officer, in fact, it is not any statutory appeal in terms of the Army Act and rules and if such an appeal/representation had been made and that Officer has disposed of, no exception can be taken to that order on the premise that the order is not one in consonance with Section 164 (2) of the Act. This is so in view of the fact that under Section 153 of the Act read with Section 161, an offence or sentence of a General-Court-Martial is made valid only after confirmation as provided under the Act and also which says that the finding and sentence of summary Court Martial shall not required to be confirmed, but may be carried out forthwith. ( 28 ) THEREFORE, it is obvious that an offence or sentence of a Summary Court Martial is not one that is required to be confirmed, in which event, the provisions of Section 164 of the Act are not applicable. It is for this reason, I reject the second contention urged by learned counsel for the petitioner that the order passed by the Lieutenant Colonel as at annexure-Al is required to be quashed. For the same reason, I reject the prayer to issue a writ of mandamus to the Chief of Army Staff to consider and pass orders and appeal/petition purported to be filed under Section 164 (2)of the Act as it is not the right given to the petitioner in a situation where the order is by a Summary Court Martial. ( 29 ) THE next contention is with regard to the procedural requirements before constituting a Summary Court Martial and the conveying of the charge to the petitioner. The time interval of 96 hours allowed to be elapsed after the charge is read out and the accused person is arraigned before the Summary Court martial are aspects which is relevant for consideration. ( 30 ) IN terms of the Rule 22 of the Army rules, every charge against a person has to be heard by the Commanding Officer in the presence of the accused. ( 30 ) IN terms of the Rule 22 of the Army rules, every charge against a person has to be heard by the Commanding Officer in the presence of the accused. While the record indicates that initially two charges had been indicated and thereafter recording of evidence had also begun, ultimately, the charge in terms of Rule 22 appears to have been made only on 31-10-2002 as subsequent to the initial appraisal to the petitioner that he has to face two charges, one is an offence under Section 39 (a) and the other is under Section 39 (b) of the Act in terms of the order dated 31-10-2002 passed by the Commanding Officer, obviously, the Commanding Officer was not sat-isfied about the material being available to press the charge under Section 39 (b) of the act, but was content to press the charge under Section 39 (a) of the Act. That means, the requirement for compliance in terms of Rule 22 begins on 31-10-2002. ( 31 ) UNFORTUNATELY for the respondents, it is thereafter the petitioner is required to be furnished with the material that is to be used against him in the trial, documents etc. and the petitioner also has to be allowed 96 hours of time before arraignment. In fact, this is not only for the purpose of giving sufficient time to the accused person so that the prospect of he being arraigned as accused before a Court martial is made known and sinks into his conscience, but also to enable the petitioner to indicate the names of the persons whom he wants to examine in support of his case as witness and arrangement can be made to procure them by the authorities. Rule 34 achieves this twin purpose and in fact is headed with caption "warning of Accused for trial". ( 32 ) THE possibility that the petitioner was being called upon to face the trial as an accused person in respect of offence chargeable under Section 39 (a) of the Act was for the first time made known to the petitioner only on 31-10-2002 by the Commanding Officer in the presence of the accused and it was thereafter that the relevant material was required to be given etc. ( 33 ) LEARNED standing counsel for the respondents has submitted that there was no other material but all such material had already been given and therefore there was sufficient compliance. But, that does not meet the requirements of Rule 22 read with Rule 34 of the Rules and at any rate interval of 96 hours between so charging and date of arraignment had not elapsed and the requirement of allowing this interval is not complied. In fact, I am not even satisfied about the hurried manner in which the Court Martial is summoned on the very next day of charging the petitioner and the proceedings concluded on the very day. ( 34 ) IT can be noticed that the Court Martial is not even constituted by the Commanding Officer but a lower ranking officer, namely, Adjutant, who has indicated in terms of his order dated 26-10-2002 that Summary court Martial will assessable on 1-11-2002. If any reliance is to be placed on behalf of the respondents on this order of the Adjutant, then it is only a betrayal of the respondents that even before the charge was readout to the per-soni in the presence of the Commanding Officer and apprised, there was a decision to constitute a Summary Court Martial taken at the level of the Major/adjutant. This is clearly in violation of the required procedure under rules 22 and 34 of the Rules and does not fulffil the requirement of Rule 34 also as the court Martial will be constituted only after the Commanding Officer is satisfied that the charge is to be pressed and he has put order for constitution of the Court Martial. In this view of the matter, if the very constitution of the Court Martial is not proper, the proceeding;; before such improperly constituted Court martial cannot be of any consequence adverse to the interest of the petitioner. ( 35 ) I am quite conscious of the fact that in judicial review of administrative action or even of any proceedings under the Army Act, particularly, in a Court Martial proceedings, the scope for examination can be strictly within the limits as are available for judicial scrutiny of administrative action. ( 35 ) I am quite conscious of the fact that in judicial review of administrative action or even of any proceedings under the Army Act, particularly, in a Court Martial proceedings, the scope for examination can be strictly within the limits as are available for judicial scrutiny of administrative action. But, while thai is borne in mind, the depth of judicial review will be dependent on the gravity or consequence of the administrative action and as observed by the Supreme Court in Charanjit's case ( AIR 2000 SC 3425 ) (supra), the kind of remedial measures available to the person suffering an adverse order. In the present situation for a person who suffers an adverse order before a Summary Court-Martial, virtually there is no statutory remedy under the Act. The provisions of Sections 162 and 163 which provide for some solace to such persons is not a matter of right nor in the nature of an appeal nor provides scope for an overall review of the order. In such a situation, the only safeguard to a person who is accused and punished before a Summary Court Martial is the compliance by the respondents of the procedural requirements. Even if there is any deviation of such compliances with the procedural requirements, then even in the limited scope of judicial review of such action, such non-compliances cannot stand the scrutiny before this Court as the only safeguard which is provided for under this procedure has been flouted. It is for this reason, I consider that the impugned order cannot stand scrutiny and deserves to be quashed. ( 36 ) ACCORDINGLY, order bearing No. 15112011/cf/a, dated 1-11-2002 issued by respondent No. 3 (copy at Annexure-A) is hereby quashed by issue of a writ of certiorari. ( 37 ) HOWEVER, it does not mean that) with the order of discharge that is now annulled, the petitioner gets back into Army Serivices automatically. It is on record that the petitioner had been declared as a deserter after completion of some necessary procedures in this regard in terms of order dated 30-8-2002. Even otherwise, the petitioner was not serving in the Army. It is on record that the petitioner had been declared as a deserter after completion of some necessary procedures in this regard in terms of order dated 30-8-2002. Even otherwise, the petitioner was not serving in the Army. ( 38 ) HOWEVER, learned counsel for the petitioner would join the issue contending that this order was not to the knowledge of the petitioner and he had not been provided an opportunity to safeguard in terms of Rule: 180 of the Rules and that it would affect the reputation of the petitioner and therefore no reliance can be placed. ( 39 ) BE that as it may, the fact remains that the petitioner was not serving in the Army nor in active service. Therefore, the petitioner cannot claim any continuity of service, tack wages or any other benefit on the basis of this order. But, it is open to the petitioner to report to his unit and it is only thereafter the petitioner may start earning emoluments. If the petitioner so reports to the unit, the respondents shall accept him and take such action as is open to them in law. Reserving such liberty, the action in terms of Annexure-A is quashed. ( 40 ) WRIT petition is allowed. Rule made absolute. ( 41 ) PETITIONER being a person who was not earning any income during the relevant period and in view of the expenditure incurred by the petitioner in litigating in the present writ petition and having succeeded in this writ petition, I am of the view that it is reasonable and justified to award Rs. 5,000/- as cost payable by the respondents in favour of the petitioner. ( 42 ) I place on record my appreciation of the valuable assistance rendered by the learned counsel for the parties, by their elaborate and eloquent submissions with reference to the statutory provisions and judicial authority. Petition allowed.