IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL WRIT PETITION No. __________ of 2023

Dist. Mumbai

In the matter of Art 226 of the

Constitution of India
And
In the matter of dismissal from service
by Summary Court Martial
And
In the matter of Order dated
05/02/2021 by Summary Court Martial
awarding Dismissal from service
And
In the matter of Order dated
26/08/2022 by Armed Forces Tribunal
upholding the order of Summary Court-
Martial
And
In the matter of principles of natural
justice, equity and good conscience.
 EX. SIGNALMAN BILLORE )
AVINASH SHAMRAO )
)
Age: years,
)
Occupation: Ex-Serviceman )
R/o: Gandhi Ward Dewhadi )
Tehsil -Tumsar, Dist. Bhandara, )
Maharashtra- 441913. ) ...PETITIONER
Versus

1 UNION OF INDIA, )
Through the Secretary, )
Ministry of Defence, DHQ PO, )
New Delhi-110011 )
AND also address at: )
Branch Secretariat, Aaykar Bhavan, )
Annexe, 2nd floor, New Marine )
Lines, Mumbai-400 020 )

2 THE CHIEF OF ARMY STAFF )

Integrated Headquarters of Ministry )
)
of Defence (Army)
)
Sena Bhawan, New Delhi-110001 )
3 COMMANDING OFFICER )
Jabalpur, Depot Regiment )
(Corps of Signals) Pin code- 901124 )
C/o-56 APO )
) ... RESPONDENTS

TO
THE HON’BLE CHIEF JUSTICE
AND OTHER PUISNE JUDGES
OF THIS HON’BLE COURT
 THIS HUMBLE PETITION OF THE
PETITIONER ABOVENAMED

MOST RESPECTFULLY SHOWETH

1. That the Petitioner is a permanent resident of Tehsil -Tumsar,

Distt. Bhandara, Maharashtra. The Petitioner is residing at the
address as is mentioned in the cause title hereinabove.

2. That Respondent No. 1 is the Union of India and under the control
of Ministry of Defense and having its office as is mentioned in the
cause title hereinabove.

3. That Respondent No. 2 is the Chief of Army Staff and head of the
ground forces and having control and supervision of the Armed
Forces and its officers. Respondent No. 3 is the authority which
issued the order of dismissal of the Petitioner from the service by
conducting Summary Court Martial (SCM).

4. That all the respondents are state and its functionaries who are
duly covered under the ambit of ‘State’ as enshrined under Article
12 of the Constitution of India. Hence, they are amenable to the
writ jurisdiction of this Hon’ble Court.

5. That by the above Petition, the Petitioner challenges the order

dated 5th February, 2021 passed by Respondent No. 3 in the
Summary Court Martial and the Order dated 26 th August, 2022 of
the Armed Forces Tribunal, upholding dismissal from service of
the Petitioner as ‘Signalman’ for the offense under Section 38(1)
of the Army Act, 1950, (hereinafter refer to as the ‘Act’).
 Hereto annexed and marked as ‘Exhibit A’ is the copy of the
order dated 05/02/2021 passed by Respondent No. 3. Further, a
copy of the Order passed by Armed Forces Tribunal in O.A. No.
100 of 2021 dated 26/08/2022 is hereto annexed and marked as
‘Exhibit B’.

BRIEF FACTS OF THE CASE

6. That the brief set of facts leading to the filing of the present
petition before this Hon’ble Court is more particularly enumerated
hereinafter:

7. That the Petitioner states that he joined the service of Indian

Armed Forces on 20/06/2011 as a Signalman. He was last posted
in 6 Mountain Division Signal Regiment (MDSR), Bareilly.

8. That the Petitioner is the only son of his parents, who are residing
in their hometown district Bhandara, Maharashtra. The Petitioner
got married on 18/07/2018. Initially it was decided that the wife
would stay with the aged parents of the Petitioner to take care of
them, but due to a strained relationship, the Petitioner ultimately
brought his wife to Bareilly in December 2019 and started living
with her there. The Petitioner's wife delivered a baby in Military
Hospital, Bareilly, on 03/07/2020 through caesarean procedure.
Hereto marked and annexed the copy of birth certificate of the
child as ‘Exhibit C’.

9. That following the wife's discharge from the hospital, the

Petitioner was given 20 days of casual leave from 10/07/2020 to
30/07/2020. Due to the COVID-19 pandemic and national
 lockdown, the Petitioner found himself in a helpless situation as
he had no one to assist him. However, the Petitioner's in-laws
were able to arrive in Bareilly from Nagpur by road to offer their
support. But the in-laws of the Petitioner had to stay in isolation
for 14 days due to mandatory COVID-19 guidelines. Hereto
marked and annexed the copy of approved casual leave as
‘Exhibit D’.

10. That while on casual leave, the Petitioner made a request through

official channels to his seniors seeking permission to visit his

hometown and meet his parents and safely escort his newly born
child, wife, and in-laws to their hometown. Unfortunately, his
request was declined. However, since the Petitioner could not take
care of his wife and newly born child, the Petitioner left with no
other alternative but to utilize his leaves and escort his family
safely.

11. That the Petitioner left on July 23 rd, 2020 Bareilly Unit by road

with his wife, child and in-laws for their hometown. First he
dropped his family members at in-laws home at Nagpur and
thereafter the Petitioner left for his home at district Bhandara to
meet his aged and ailing parents. On July 29 th, 2020 after reaching
the village Tumsar, Bhandara the Petitioner was kept in
quarantine for around six days in Government quarantine center.
On 03/08/2020 the Petitioner was discharged from the quarantine
center with strict instructions of following 14 (fourteen) days of
home quarantine. The Petitioner’s father and mother who are 68
and 60 (sixty eight and sixty) years of age respectively at present,
 had also suffered due to COVID-19 therefore being the only
available person to take care of the parents, the Petitioner could
not leave for his unit immediately. Hereto marked and annexed
the copy of discharge note from the quarantine center as ‘Exhibit
E’.

12. That a letter dated 28/08/2020 was received on around 03/09/2020

by mother of the Petitioner notifying about ‘Absent without leave’

and directed the mother to advise the Petitioner to contact Unit
authorities and to report back to the unit immediately. Hereto
marked and annexed the copy of letter dated 28/08/2020 as
‘Exhibit F’.

13. That after ensuring the well-being of his parents and resolving the

familial conflicts between parents and in-laws, the Petitioner

proceeded to join his Bareilly Unit.

14. That thereafter the Petitioner wanted to report back to his Unit on

04/09/2020 by contacting through phone to the Bareilly Unit.

However, Sergeant Major (SM) informed him that his service
documents had been sent to the Depot Signal Regiment in
Jabalpur, M.P. and instructed him to report to that unit instead of
in Bareilly. Therefore, the Petitioner left from hometown by road
to report at Jabalpur Depot. Upon reporting to the Jabalpur Unit
on 14/09/2020, the Petitioner was stopped at entry gate and not
allowed to enter the Depot. Afterwards on the same day the
Petitioner was informed by the authorities that they had not
received his service documents from his posting Unit therefore
told him to return back home and wait till they receive the
 documents from the Bareilly Unit. Resultantly, the Petitioner
returned back home. The Petitioner also contacted the office clerk
in Barielly Unit and was informed that the documents had been
sent by post, therefore would take some time to arrive.

15. That on 05/10/2020, the Petitioner again voluntarily reported to

Depot Battalion 1 STC Jabalpur, and surrendered officially and

was taken on the strength of the Depot Battalion 1 STC.
Subsequently, the Petitioner was placed under quarantine for
fourteen days as per the COVID-19 norms.

16. That the Petitioner remained in Jabalpur Depot for four months.

Subsequently, the Petitioner was tried by Summary Court Martial

(SCM) during the period of 05/10/2020 to 05/02/2021 and
dismissed from service vide Order dated 05/02/2021.

17. That Respondent No. 3 informed the wife of the Petitioner

through letter dated 05/02/2021 regarding the ‘Dismissal from the

service’ after Summary Court-Martial. Subsequently, the
Petitioner filed an application before the Armed Forces Tribunal
(AFT), at Mumbai bench to set aside the Order of dismissal but
the AFT upheld the dismissal order. Hereto marked and annexed
the copy of record of proceedings before the Armed Forces
Tribunal as ‘Exhibit G’.

18. That the Petitioner has diligently and faithfully served the Indian

Army for 9 years 5 months. The Petitioner has an unblemished

service record in his service tenure.
 19. That the Petitioner's repeated attempts to join the Unit definitely

demonstrated his intention to remain in the service.

20. That the Petitioner is wrongly charged for the offense under

Section 38(1) for ‘Desertion’. Whereas the Petitioner’s case is

straightforward and pertains to Absence Without Leave,
specifically under Section 39 of the Army Act, 1950.

21. That as per Section 106 (2) of the Act- ‘if the person declared

absent does not afterwards surrender or is not apprehended, he

shall, for the purposes of this Act, be deemed to be a deserter.’

In the instant case, the Petitioner overstayed his leave but

surrendered himself voluntarily and remained in constant contact
with the Unit. However, miscommunication with the Respondents
caused further delay and an extension of his leave. Furthermore,
the Applicant had no intention of abandoning the service and
made sincere efforts to reconnect with the Unit and resume his
duties by contacting his superior officer.

GROUNDS

22. That being aggrieved and dissatisfied by the dismissal from

service vide order dated 05/02/2021 passed by Respondent No. 3

and the subsequent Order dated 26/08/2022 of the Armed Forces
Tribunal upholding the dismissal order, the Petitioner herein has
preferred the present petition before this Hon’ble Court on the
following amongst various other grounds which are without
prejudiced and in alternative to each other:-
a) That the Petitioner is wrongly charged for the offense of

‘Desertion’ under Section 38(1). Whereas the Petitioner’s case is

straightforward and pertains to Absence Without Leave,
specifically under Section 39 of the Army Act, 1950.

b) That no Show Cause Notice was issued to the Petitioner, thus the

Petitioner was not given an opportunity to explain his absence

without leave, which would have informed him of the allegations
against him and the proposed punishments. As a result, the
Respondents did not follow the correct procedure under Section
106 of the Act, which sets out the process to be followed when
deeming a person absent without leave to be a deserter. In
addition, the Respondents did not conduct a Court of Inquiry
before declaring the Applicant a 'deserter' in accordance with
Army Regulations.

c) That as per Section 106 (2) of the Act- ‘if the person declared

absent does not afterwards surrender or is not apprehended, he

shall, for the purposes of this Act, be deemed to be a deserter.’

Hon'ble High Court of Kerala held in Indira v. Union of India

2005 (3) KLT 1071, "Desertion is a conscious act by somebody
who has otherwise no escape from the army."

d) That the Hon'ble Supreme Court of India in the case of Capt.

Virendra Kumar Through his Wife v. Chief of the Army Staff

(1986) 2 SCC 217 made a clear distinction between 'desertion'
and ‘absence without leave', and Section 106 prescribes the
procedure to be followed when a person absent without leave is to
be deemed to be a deserter.
e) That in the current case, the Petitioner overstayed his leave but

surrendered himself voluntarily and remained in constant contact

with the Unit. The Petitioner made efforts to join his Unit, but he
was misinformed and shunned by the Respondents. Furthermore,
the Applicant had no intention of abandoning the service and
made sincere efforts to reconnect with the Unit and resume his
duties by contacting his superior officer.

f) That remaining absent without leave was totally situational and

beyond the control of the Petitioner. Also, the Petitioner attempted

to join his duty multiple times in between, but the authorities
ignored him. The Petitioner phoned the Sergeant Major (SM)
several times and explained his predicament. This alone
demonstrates the applicant's desire to sign up for the service as
soon as possible. The Petitioner provided strong justifications for
his excessive leave and stated a desire to stay on staff, but the
respondents did not take them into consideration.

g) That the petitioner intended to join his Unit, but the Sergeant

Major told him on 04/09/2020, that his service records had been
sent to the Depot Signal Regiment in Jabalpur. Petitioner was
instructed to go to Jabalpur rather than to Bareilly Unit. The
authorities in Jabalpur informed the Petitioner that they had not
received his paperwork when the Petitioner reported on
14/09/2020, and that the Petitioner should go back to his unit
instead of stopping by the peace station. The Petitioner phoned the
SM and briefed them on the circumstances. The SM advised him
not to visit the Bareilly Unit because the service documents had
 already been transferred to Jabalpur. The Petitioner phoned the
office clerk to inquire about the matter, and the clerk informed
him that the paperwork had been sent by India Post and would
take some time to arrive. On 05/10/2020, the applicant reported to
the depot and stayed there for four months.

h) That it is an admitted fact that the Petitioner had joined

voluntarily and admitted by the Jabalpur Depot on 05/10/2020

after a number of unsuccessful attempts to join his Unit.

i) That the Respondents did not issue a show cause notice even

once. The petitioner was not given the chance to explain his
absence. The Respondents did not send the Petitioner any
notification letter outlining the repercussions of his actions. If he
was to be considered a deserter, the Respondents neglected to
issue the apprehension roll. The Petitioner has a clear case of
absence without leave, hence the Respondents erred in framing
charges against him and incorrectly accused him of desertion.

j) That the Petitioner's mother was sent notice dated 28/08/2020

which was received on 03/09/2020. However, from the record of

proceedings, it came to the knowledge of the Petitioner that on
01/09/2020 the Petitioner was declared a deserter for reason of
Over Staying Leave. The Petitioner was declared deserter without
following the procedure established by law. The Petitioner was
never informed that he has been declared a deserter by the
Respondents.

k) That the procedure under Sections 105 and 106 of the Army Act

was not followed in as much as under the said section, it was

 necessary upon the Army Authorities to find out through the
Court of Inquiry as to whether the Petitioner's absence is
intentional or for other sufficient cause. The Petitioner has been
dismissed from service illegally by creating mere paper work. The
Petitioner was not granted reasonable time to reply to the letter
dated 28/08/2020 addressed to the mother of the Petitioner since
the same was received on 03/09/2020. The Petitioner immediately
after the receipt of letter contacted the Bareilly Unit but was
directed not to report to the Unit and should go directly to
Jabalpur Depot.

l) That grave injustice has been done to the Petitioner as he was put

on trial for a crime he didn't commit. Also, the severity of the

punishment was out of proportion to the offense committed.

m) That it is humbly submitted that the Petitioner served in the Indian

Army with complete dedication and sincerity. The Petitioner’s

unblemished service record of 9 years and 5 months has not been
considered before awarding him the harsh punishment of
dismissal from service.

n) That the conditions under which the Petitioner was surrounded,

were unfavorable and beyond his control. He was blessed with a

newly born child with C-section surgery during the peak period of
COVID-19 pandemic and old parents were living far away alone
at their hometown. The Petitioner's voluntary submission to the
Unit demonstrates his commitment to remain in the military and
avoid overstaying his leave without sufficient cause.
o) That the Petitioner is the only provider for his family and that his

financial situation is precarious. The Petitioner’s family depends

solely on him to survive, so the grant for his reinstatement into the
service would be very valuable to both the Petitioner and his
family.

p) That the Petitioner submits that thus the above action of dismissal

by the Respondents is mala-fide, illegal and without authority of

law. The Petitioner should not be dismissed summarily without
following the process of law.

q) That the Petitioner submits that the Respondents have not

exercised the powers vested in them in the interest of justice but

have exercised their powers with mala-fide intentions to further
their own ends. The Respondents have devised their own rules for
the sake of their own convenience without giving any
consideration to the law of the land.

r) That the Petitioner also submits that act of Respondent No. 3 is

arbitrary and victimizes the Petitioner in SCM proceeding. The

Petitioner states in this background that the action and conduct of
the Respondents are outrageous and in defiance of logic. In such
circumstances the Petitioner submits that this is a fit case where
this Hon’ble Court has powers to exercise its writ Jurisdiction;

s) That even otherwise, the order passed by Respondent No. 3 in

Summary Court Marital is illegal, in derogation of law and against

the Principles of Natural Justice.
 t) That there is a catena of judgments on the subject matter which

clearly supports the cause of the Petitioner that the dismissal of

the Petitioner is illegal, unlawful and against the Principles of
Natural Justice.

20. That the Petitioner craves leave to add, alter amend substitute

and/or delete any of the averments and/or grounds herein.

21. That the entire cause of action has arisen within the jurisdiction of

this Hon’ble Court therefore this Hon’ble Court has jurisdiction to

entertain, try and dispose of this petition in exercise of its Writ
Jurisdiction. Further the Hon'ble Supreme Court of India [Civil
Appeal No. 447 of 2023, UOI vs. Parashotam Dass, decided on
21.03.2023] held that Article 226- Writ petitions challenging
orders of Armed Forces Tribunal are maintainable.

22. That the Petitioner has not filed any other Application either in

this Hon’ble High Court or any other Court in India seeking the
reliefs prayed herein.

23. That the Petitioner shall rely upon documents a list whereof is

annexed hereto.

24. That the Petitioner therefore most humbly prays that :-

a) The Hon’ble Court in the exercise of their powers in Writ

Jurisdiction under Article 226 of the Constitution of India, be

pleased to issue Writ of Certiorari, or any other Writ in the
nature of Certiorari, or any other Order or Direction;
 b) This Hon’ble Court be pleased to quash and set aside the

dismissal from service Order dated 5th February, 2021 issued

by the Respondents in Summary Court Martial and
subsequent order dated 26th August, 2022 passed by the
Armed Forces Tribunal on such terms and conditions as this
Hon’ble Court deems fit;

c) To stay the Order dated 5th February, 2021 pending the

hearing and final disposal of the Petition;

d) The Respondents be directed to allow the Petitioner to rejoin

the duties with all service and financial benefits as per his
entitlement;

e) To direct the Respondents to reinstate the Petitioner in the

service;

f) To pass any other appropriate order or direction which this

Hon’ble Court may deem fit and proper in the peculiar facts
and circumstances and interest of justice;

AND FOR THIS ACT OF KINDNESS AND JUSTICE THE

PETITIONER SHALL AS IN DUTY BOUND EVER PRAY

Place: Mumbai
Dated this____ day of May, 2023
PETITIONER

Advocate for the Petitioner

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL WRIT PETITION No. 13814 of 2023

Dist. Mumbai

Ex Signalman Avinash Shamrao Billore ... Petitioner

Versus
Union of India & Others ... Respondents

INDEX

Sr No Particulars Annexure Page No

1 Synopsis

2 Copy of Petition

3 Copy of order dated 05/02/2021 of A

Summary court martial
4 Copy of Order of Armed Force Tribunal B
in O.A. No. 100 of 2021 dated
26/08/2022
5 Copy of birth certificate of child C

6 Copy of approved leave D

Copy discharge note of the quarantine E

centre
7 Copy of letter dated 28/08/2020 & F

(colly.)
 8 Copy of records proceedings before the G
Armed Force Tribunal
9 Vakalatnama

10 Last Page

Place: Mumbai
Dated this_____day of May, 2023

Advocate for the Petitioner

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL WRIT PETITION No. __________ of 2023

Dist. Mumbai

Avinash Shamrao Billore ... Petitioner

Versus
Union of India & Others ... Respondents

SYNOPSIS

The Petitioner is challenging the Summary Court Martial’s

decision dated 05.02.2021, which found the Petitioner guilty of desertion
under Section 38(1) of the Army Act, 1950 and ordered his dismissal
from service.
The Petitioner was granted 20 days casual leave but overstayed
for 67 days. Petitioner made several attempts to return to service, but the
Petitioner was not accepted by the authorities and was asked to leave
and report to Jabalpur Depot.
The Petitioner argues that he had no intention of deserting his unit
and that the punishment was disproportionate to his conduct.
Additionally, proper procedures were not followed during the
disciplinary proceedings, and the Applicant was not given the
opportunity to be heard. The Applicant had served diligently in the
Indian Army for almost 9 years and 7 months, but due to personal
circumstances, he had to face dire consequences subsequently, which is
the subject of the current petition.
 A) CHRONOLOGY OF EVENTS

Sr. Nos Dates Events

1. 20.06.2011 The Petitioner was enrolled in the Indian
Army
2. 18.07.2018 The Petitioner got married
3. 24.08.2018 The Petitioner was posted in 6 Mountain
Division Signals Regiment (MDSR), Bareilly
4. December The Petitioner took 20 days annual leave and
2019 returned back to the Unit with his wife and
started living in official accommodation
5. 03.07.2020 The Petitioner was blessed with a baby
through caesarean procedure
6. 10.07.2020 Petitioner was given 20 days of casual leave
from 10/07/2020 to 30/07/2020
7. 23.07.2020 Petitioner left Bareilly Unit by road to escort
his wife, child and in-laws for their
hometown
8. 04.09.2020 The Petitioner wanted to join his Unit but on
the phone Sergeant Major informed him that
his service documents have been sent to
Depot Signal Regiment, Jabalpur and he
must report to Jabalpur.
9. 14.09.2020 The Petitioner went to Jabalpur but was
denied entry since the Depot had not received
his documents and he should report back to
his Unit.
10. 05.10.2020 The Petitioner reported to Jabalpur Unit
again and was admitted.
11. 05.02.2021 The Petitioner was dismissed from service by
Summary Court Martial (SCM)
12. 26.08.2022 Aggrieved with the Order of dismissal the
Petitioner filed Original Application before
the Armed Forces Tribunal, but the Tribunal
upheld the decision of SCM vide order dated
26/08/2022
13. …….. May, Hence the present Petition seeking
2023 indulgence of this Hon’ble Court.

B) ACTS AND CODES REFERED TO

 The Constitution of India;

 The Army Act, 1950

 Any other Act as may be applicable;

C) JUDGEMENTS REFFERED TO-

 Union of India v. Ex-Lac Nallam Shiva [2017 SCC On Line SC 900]

 Capt. Virendra Kumar Through his Wife v. Chief of the Army Staff
(1986) 2 SCC 217
 Indira v. Union of India 2005 (3) KLT 1071
 UOI vs. Parashotam Dass, Civil Appeal No. 447 of 2023
D) POINTS TO BE URGED

 All issues/points raised in the Memo of Petition;

 Any other issues/points, with the kind permission of this Hon’ble

Court;

Advocate for the Petitioner.

IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
CIVIL APPELLATE JURISDICTION

CIVIL WRIT PETITION No. of 2023

District Mumbai

Avinash Shamrao Billore ... Petitioner

Versus
Union of India & Others ... Respondents

CIVIL WRIT PETITION

Dated this ____ day of May, 2023

SUDIP MALLICK
Advocate for the Petitioner
Room No. 39, High Court Library,
Bombay High Court, Fort,
Mumbai 400 032
Cell: 99300 89254
Email: mksudip@gmail.com
Reg. No. MAH/5478/2015
Code- I 19428