Per J.P Singh, Judge:

1. This Letters Patent Appeal is directed against writ Court judgment dated 1.2.2000 whereby finding of sentence of Dismissal from Service recorded by Summary Court Martial has been set aside and appellants directed to pass fresh order in accordance with law.

2. Facts necessary for the decision of this appeal may be summarized thus.

A tentative charge-sheet was issued to the writ petitioner on 10.12.1991 by his Commanding Officer, which reads as follows:-

"The accused No.9081904L NK Bipin Lal of 3 Jammu and Kashmir, Light Infantry is charged with:-

"WITHOUT SUFFICIENT CAUSE OVERSTAYING LEAVE GRANTED TO HIM."

in that he,

at peace on 08 November, 1991, having been granted leave of absence from 28 October 1991 to 08 November 1991 to proceed to his home, failed without sufficient cause, to rejoin at unit lines on 08 November 1991, on the expiry of the said leave, till he rejoined voluntarily on 08 December 1991 (AN)

Place ; Peace (J.S. Sambyal)

Dated : 10 December, 1991 Colonel

Commanding Officer."

3. The charge was heard by the Commanding Officer under Army Rule 22. The prosecution witness IC-39201P Major Manoj Kumar was heard in presence of the accused writ petitioner who declined to cross examine the witness. No defence witnesses were produced by the writ petitioner. On conclusion of the hearing, the Commanding Officer directed the recording of Summary of Evidence. These proceedings were held at Ranchi.

4. Summary of Evidence was recorded on the orders of IC 28338F COL J.S. Sambyal, CO 3 JAK LI. Statements of two witnesses were recorded in presence of the writ petitioner who declined to cross examine. The writ petitioner was cautioned in terms of Army Rule 23 in presence of independent witness JC 144601A Subedar Mohd. Maqbool Lone of 3 JAK LI in following terms:-

"Do you wish to make any statement.You are not obliged to say anything unless you wish to but whatever you say will be taken down in writing and may be given in evidence."

5. It was recorded that the writ petitioner had understood the caution, who voluntarily elected to make statement, verbatim of the statement is reproduced hereunder:-

"Statement of Accused:

14. On about 04 Oct. 91, I received a registered letter stating that my wife was seriously ill. I reported the matter in the Coy and the Coy Cdr. sanctioned my CL. However, since I fell ill and was admitted in the MH, and was discharged from MH on 25 Oct, 91. I proceeded on 12 day CL on 28 Oct, 91. By the time, I reached home the condition of my wife had worsened. My wife has been sick since 1988 and the matte was known to my Coy. Cdr. On the basis of the ailment of my wife I had also requested the unit for my att. or posting on compassionate grounds to any unit in Jammu through an application along with an authority letter from the doctor who was treating my wife.

15. On reaching home I took my wife to the same doctor who advised that she should take complete bed rest. He said that my wife should not even be moved to go to toilet also.

16. I have two young children who are to be looked after. As there was nobody at home I had to prepare their food and look after their other needs. At the same time, my wife was also in agony. Seeing the plight of my wife and young children, I was mentally disturbed and upset and forgot to inform the unit. My prime concern at that time centered around saving my wife.

17. When my wifes condition improved slightly I returned to unit and reported at the unit on 08 Dec, 91.

18. The statement of the accused is read over and explained to him in the language he understands and he signs the same as correct.

Sd/- xxx Sd/- xxx

JC-144601A No 9081904L

Sub Mohd. Maqbool Lone NK Bipin Lal

Independent Witness The Accused.

@L2PLACE : C/O = APO Dated : 11 Dec, 91"

6. During the course of recording of Summary of Evidence a certificate was issued that provisions of Army Rule 23(1) (3) and (4) have been compiled with. After recording of Summary of Evidence the writ petitioner was ordered to be tried by S

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