KHANNA, CJ.
(1.) This appeal has been filed against the judgment of the learned Single Judge dated 23.3.94 in Civil Rule No.9(SH)/94.
(2.) We have heard Mr R.P. Kakati, learned counsel appearing for the Union Government and Mr M.Z. Ahmed, learned counsel for appearing for the contesting respondent. As the questions raised in the present appeal are only questions of law, the present appeal is being finally disposed of after hearing the learned counsel for the parties.
(3.) In Civil Rule No.9(SH)/94, the petitioner-respondent Maj. Paramjit Singh Virdi had challenged the order passed by the General Court Martial dated 13.6.92 by which he was found guilty of misconduct which had been alleged against him and had been sentenced to six months' simple imprisonment and was also cashiered. It is this order which has been set aside under the impugned judgment by the learned single Judge on the ground that the petitioner had already been kept under 'open arrest' for more than six months and thus he had undergone sentence of simple imprisonment for six months. The learned Single Judge was further of the opinion that in view of section 74 of the Army Act further punishment of cashiering could not be awarded to the petitioner-respondent.
(4.) Learned counsel for the respondent/appellant before the learned Single Judge had urged that under section 164 of the Army Act, statutory appeal lies before the competent authority and thus an alternative statutory remedy is available to the petitioner-respondent. section 74 of the Army Act runs as follows:
"Cashiering of Officers An officer shall be sentenced to be cashiered before he is awarded any of the punishments specified in clause (a) to (c) of section 71."
Section 71 prescribes punishment awardable by Court Martial and section 71 (c) provides punishment of imprisonment, either rigorous or simple, for any period not exceeding fourteen years.
(5.) In the present case, the learned Single Judge has not set aside the findings on merits recorded by the Court Martial and has only held that the sentence of six months' simple imprisonment would be deemed to have undergone by the petitioner/respondent and has thus come to the opinion that further punishment of cashiering under section 74 of the Army Act could not be awarded.
(6.) After hearing the arguments raised by the learned counsel for the parties and after perusing the provisions of section 74 of the Army Act, we are of the opinion that in case the findings on merit of the Court Marital had not been set aside, it was obligatory, after awarding sentence of simple imprisonment for six months, to have cashiered the officer under section 74 of the Army Act. We are, however, of the opinion that as the petitioner- respondent has not availed of the statutory remedy by filing an appeal under sections 164 and 165 of the Army Act, the proper remedy available to the petitioner-respondent is to first avail of the statutory remedy and raise all the questions which have been raised before this Court. We are, .therefore, of the opinion that the petitioner-respondent may file an appeal within two weeks from today and in case such an appeal is filed within two weeks, the same will be dismissed on the ground of laches. In case, such an appeal is filed, the competent authority will adjudicate on all the questions raised by the petitioner-respondent.
(7.) Subject to the aforesaid observations, the present appeal is allowed. The judgment passed by the learned single Judge dated 23.3.95 is set aside. Looking to the entire facts and circumstances of the case, we leave the parties to bear their own costs;. A certified copy of this order will be given to the learned counsel for the parties on payment of usual charges within three days.