( 1. ) THIS is a writ petition under Articles 226 and 227 of the Constitution of India for quashing order dated 19-11-1991 by which the petitioner has been dismissed from service in a Summary Court Martial proceeding and he has been sentenced to rigorous imprisonment for two months, and for a direction to the respondents to reinstate him in service.

( 2. ) IT is not in dispute that the petitioner was enrolled in the Army Serrvice on 15-6-1984. Hewas Driver (Mechanical Transport ). He was granted leave from 9-5-1991 to 19-5-1991 on his application for attending the marriage of his brother. The petitioner remained absent and joined his duties on 24-8-1991. He overstayed his leave for 98 days. There was recording of "summary of evidence" on 27-9-1991 as per Rule 22 of the Army Rules. On 15-11-1991 a charge-sheet was served on the petitioner alongwith summary of evidence. He was informed that he would be tried by the Summary Court Martial on 19-11-1991. On that date he pleaded guilty to the charge. The petitioner was provided with service of a "friend of accused" on that date. The Summary Court Martial directed dismissal of the services of the petitioner and also awarded rigorous imprisonment for two months. The petitioners appeal against this order was also dismissed.

( 3. ) THE petitioners case is that he was suffering from infective hepatitis from 15-5-1991 to 20-8-1991 and therefore, he could not join duties after the expiry of period of his leave. He sent application for grant of leave supported by a medical certificate of Dr. R. S. Chadda, Assistant Surgeon, Government Victoria Hospital, Jabalpur. Summary of evidence was not recorded in his presence on 27-9-1991. He pleaded guilty to the charge before the Summary Court Martial on 19-11-1991 as he was assured by some of the Army Officers that if he pleads guilty he would be dealt with leniently. According to the petitioner the friend of accused also did not provide any assistance to him on that date. He has also pleaded that no Court of inquiry was held after his absence beyond the period of 90 days as provided in Section 106 of the Army Act. It is further stated that the proceedings of the Summary Court Martial were not sent to the higher authorities so that the punishment imposed upon the petitioner could be reviewed by them. According to the petitioner punishment imposed upon him is highly disproportionate. He has stated that his appeal has been rejected without proper consideration.

( 4. ) THE respondents case is that the petitioner was not suffering from infective hepatitis. He did not send any medial certificate in support of his application for leave. He did not get himself treated in any Military Hospital and did not obtain any medical certificate from such hospital. It is pointed out that the petitioner remained absent earlier also on two occasions for 34 days and 39 days respectively and he was punished for those lapses. It is pointed out that the petitioner was indisciplined soldier and he was in the habit of remaining absent from duty without prior sanction of leave. The summary of evidence was recorded in the presence of the petitioner. He pleaded guilty during the Court Martial proceedings of his own accord. The proceedings of the Court Martial were sent to the Headquarter, Western Command and same were duly vetted by DJAG, Headquarter, Western Command and these were found to be just and legal. The Court of inquiry was also held after the absence of the petitioner for more than 30 days on 24-7-1991 and he was declared as deserter as per Section 106 of the Army Act. The punishment imposed upon the petitioner can not be said to be disproportionate. He was absent earlier also on two occasions and that also justifies his dismissal from service. He was really a habitual offender.

( 5. ) LEARNED Counsel for both the sides have been heard. The petitioner was granted leave from 9-5-1991 to 18-5-1991 and he was permitted to suffix Sunday on 19-5-1991. But he remained