ORDER
(Order of the Tribunal made by Justice ACA Adityan)
The applicant challenging the order of discharge under the impugned order has approached the Honourable Andhra Pradesh High Court at Hyderabad for setting aside the impugned order. After the constitution of the Armed Forces Tribunal under the Armed Forces Tribunal Act, 2007, under Section 34 of AFT Act, the said Writ Petition has been transferred to this Tribunal on the point of jurisdiction and renumbered as T.A.No.119 of 2009 and was dismissed for default once and the same was restored to file as per the order in M.A.No.5 of 2012 today.
2. As per the applicant, he had enrolled as a Soldier in the Indian Army with effect from 25th February 2002 and while serving, he went on leave from 07.04.2008 to 08.05.2008 and due to some family circumstances, viz., sudden heart attack of his father-in-law, he could not report to his Unit after the expiry of the leave. According to the applicant, he had asked for extension of another one month of leave from 09.05.2008 to 09.06.2008 and thereafter, he reported for duty on 10.06.2008. But, he was not allowed to enter into the Unit and his Identity Card was also taken from him. Thereafter, once again he surrendered himself on 06.08.2008, but the respondents treated the applicant badly and he was sent out of his Unit, which made the applicant to return to his native place. The respondents have issued a Desertion Roll, which was handed over to the nearest Military Station. The applicant had approached the Police to take him to the nearest Military Station. But, the Police refused to do so. Since the applicant had step-motherly treatment at the hands of the respondents, the applicant has approached the Court with this application challenging the impugned order of discharge. Pending this application, the applicant was dismissed from service in the year 2011, which made the applicant to file M.A.No.10 of 2012 to amend the prayer by including a relief to set aside the order of dismissal from service.
3. The respondents in their joint counter, while denying all the facts stated by the applicant in his affidavit to the application, would further add that the applicant was granted 32 days balance of Annual Leave with effect from 7th April 2008 to 8th May 2008, but the applicant had failed to report duty on expiry of balance of Annual Leave and overstayed leave illegally without any prior permission with effect from 9th May 2008, which necessitated the respondents to publish Part-II order No.0/0221/003/2008 dated 28th July 2008, which was preceded by an Apprehension Roll addressed to Superintendent of Police, Kurnool, vide 26 Maratha LI Letter No.1235/Docu Cell, dated 21st May 2008, to apprehend the individual and hand over to the concerned Army authority. A reminder was also sent to the Superintendent of Police, Kurnool, vide 26 Maratha LI letter No.1235/Docu Cell dated 4th August 2008 to intimate the action taken to apprehend the individual who was overstaying leave illegally since 9th May 2008. In the mean time, the respondents were informed that the applicant is working in Hyderabad. As per the Army Act Section 106, when any person subject to Army Act read with Army Rule 183 remains absent from his duty without due authority for a period of thirty days and not afterwards surrender or is not apprehended, a Court of Inquiry shall be held. Accordingly, on 10th June 2008, a Court of Inquiry was held by the Unit to investigate the reasons for absence of the applicant. After completion of the investigation and declaring him as illegally absent, the applicant was declared as deserter and struck off active strength of Army with effect from 9th May 2008 under the provisions of Army Act Section 106 by endorsing constituted Court of Inquiry held on 10th June 2008 at peace vide Part-II Order No.0/0221/003/2008, dated 28th July 2008. Since the applicant had remained as a deserter, his account was closed finally with credit balance of a sum of Rs.4,303/- by the PAO (OR) The MARATHA LI. The fact was accordingly communicated to Smt.Thalasamma, wife of the deserter, vide Records, The MARATHA LI, Belgaum letter No.280237/SR/Desn/LHC/NE-1, dated 30th October 2008 and letter of even number dated 24th December 2008, with an advice to forward a Legal Heir Certificate through Secretary Zilla Sainik Welfare Office to enable the respondents to dispose of. The above fact was also brought to the notice of Zilla Sainik Welfare Officer, Kurnool vide Records, the MARATHA LI, Belgaum letter No.2802374/Desn/LHC/NE-5, dated 29th May 2009, with a request to send necessary Legal Heir Certificate. The applicant had never requested for extension of leave for one month and he has never surrendered before the Unit as alleged in his application and he was never ill-treated as alleged. At the time when the respondents contacted the applicants wife, she had said that the applicant has a job and working at Hyderabad. Since all efforts made by the respondents to secure the applicant had failed, the Commanding Officer issued the Desertion Roll and finally declared the applicant as a deserter. The applicant was declared as a deserter and his name was struck off from the active strength of Army with effect from 9th May 2008 under Section 106 of the Army Act. The applicant had illegally overstayed leave without prior permission from competent authority, thereby committed an offence under Section 39(b) r/w Section 38(a) of Army Art. Hence, the application is liable to be dismissed.
4. We heard the learned counsel Mr.K.P.Abhiram appearing for the applicant and learned Senior Panel Counsel Mr.B.Shantha Kumar and Learned JAG Officer Captain Jitender Singh appearing for the respondents and considered their respective submissions.
5. Now the point for determination in this case is whether the impugned order of dismissal against the applicant on the ground that the applicant had overstayed leave from 09.05.2008 is liable to be set aside for the reasons stated in the affidavit to the application?
6. THE POINT:- The admitted facts of the parties are that the applicant was granted his Annual Leave from 07.04.2008 to 08.05.2008. But, after availing the leave, the applicant had failed to report before the Unit, which made the respondents to publish Part-II order referred to above declaring the applicant as a deserter. According to the applicant, since his father-in-law had suddenly suffered a massive heart-attack on 09.05.2008, ie, the date on which he is to report before his Commanding Officer at the Unit after the expiry of leave, he could not proceed to his Unit and that he had applied for extension of leave from 09.05.2008 to 09.06.2008 and thereafter, he reported to his Unit on 10.06.2008. But, he was badly treated and he was not allowed to enter into the Unit and he was asked to go out of the Unit and his Identity Card was also collected from him, which made him to return to his native place. It is the case of the applicant that once again ie., on 06.08.2008 he had come to the Unit, but he received the same treatment at the Unit, which made him to return to his native place. The applicant has produced about seven documents. Exhibit P-1 is the letter dated 15.09.2008 stating that after the expiry of extension of leave for one month from 09.05.2008 to 09.06.2008 he was not allowed to join in the Unit. The applicant says that he had applied for leave. But, Exhibit P-1 does not contain the signature of the applicant and no postal acknowledgment was also produced by the applicant, for the alleged letter dated 15.09.2008.
6(a) Per contra, the respondents would contend that the applicant had never written any letter to the Unit for extension of leave one month after the expiry of his leave from 07.04.2008 to 08.05.2008. So, burden is heavily on the applicant to show that he has applied for extension of one month leave from 09.05.2008. Exhibit P-2 is letter dated 06.05.2008 from the applicant to the Commanding Officer for leave extension of one month. Even Exhibit P-2 does not contain the signature of the applicant and he has also not produced the postal acknowledgment card to show that the said leave extension letter was posted through registered post to the respondents/Commanding Officer. Exhibit P-3 is the letter dated 12.11.2008 to the Commanding Officer requesting him to permit the applicant to join duty. Even in Exhibit P-3, there is no signature of the applicant and no postal acknowledgement card produced to show that the said letter was received by the respondents. Exhibit P-4 is an admitted document for grant of leave to the applicant from 07.04.2008 to 08.05.2008, dated 06.04.2008. Exhibit P-5 is the letter addressed to Senior Record Officer, Belgaum, by the applicant stating that he is ready to join duty and not prepared to leave the service. Exhibit P-5 was written not by the applicant, but by his counsel. For the said Exhibit P-5, letter dated 27.12.2008, no postal acknowledgment produced. (At this juncture the learned counsel for the applicant produced a postal receipt for the said letter).
6(b) On the other hand, the respondents have produced about seven documents. Exhibit R-1, dated 21st May 2008, is the Apprehension Roll, sent to the Superintendent of Police, Kurnool District, informing the Police that the applicant has committed an offence under Section 39(b) of the Army Act 1950 (overstayal of leave) and requested the Civil Police to apprehend and produce him to the nearest Military Unit/Formation HQs. The said Apprehension Roll was followed by Exhibit R-2, letter dated 4th August 2008, to the Superintendent of Police, Kurnool District, requesting the Police to intimate about the action taken against the Apprehension Roll sent against the applicant dated 21st May 2008. According to the respondents, since the applicant had failed to return to duty Court of Inquiry was held, ultimately the Court of Inquiry has come to a conclusion that the applicant is a deserter and the fact was also informed to the applicants wife Smt.Thalasamma and she was asked to furnish the details like Legal Heir Certificate to collect a sum of Rs.4,303/- being the amount due to the applicant vide letter No.28092374/Desn/LHC/NE-1, dated 24th December 2008. According to the applicant, since he had not received any letter of communication from the respondents permitting him to join duty after the expiry of his leave and after knowing that the applicant has been declared as a deserter under Army Act Section 106, the applicant had approached the Honourable Andhra Pradesh High Court at Hyderabad by way of filing W.P.No.13690 of 2009 challenging the impugned order, which has subsequently been transferred to this Tribunal.
6(c) But, unfortunately, the respondents, while W.P.No.13690 of 2009 is pending before the Andhra Pradesh High Court at Hyderabad, have dismissed the applicant as per Army Order 43/2001/DV read with Army Instruction 112/04 ie., after the expiry of three years from the date of Part-II Order as âDeserter relating to the applicant. We are of the considered view that while pending the case in W.P.No.13690 of 2009 challenging the impugned order âDeserter, the respondents action of passing an order of dismissal against the applicant without taking any steps to secure him even after knowing that the applicant is alive and has filed a case against the respondents, in our view is illegal and against principles of natural justice and the same is liable to be set aside.
6(d) At this juncture, We would like to refer to the dictum of the Honourable Delhi High Court reported in Smt.Harnandi Vs. Union of India and others reported in 2002(2) SLJ 49, wherein it has been held as follows:-
âThere is no provision in the Act or Rules envisaging automatic termination of service of a member of armed forces on declaration of desertion. On the other hand, Army Regulation 376 provides to the contrary and say that a deserter does not belong to cease to corps though he is no longer shown on its returns. This Regulation reads thus:
â376_ Deserters From the Regular Army:_ A person subject to AA who is declared absent under AA, Section 106 does not thereby cease to belong to the corps in which he is enrolled though no longer shown on its returns, and can, if subsequently arrested, be tried by court martial for desertion. When arrested he will be shown on returns as rejoined from desertion.â
Similarly, Army Letter dt 11.03.1980 also says that a deserter would be dismissed from service after completion of 10 years of his absence. So does Army Instructions AI-112/4 provide for his termination if he failed to surrender within three years or was not apprehended within that period.
It was thus evident that a desertion by itself did not and would not bring about cessation or termination of the service of a member of the armed forces whose service remained otherwise intact despite being declared a deserter, unless, of course, he was dismissed, removed or discharged under an appropriate order passed by the competent authority under the Act and the Rules.â
6(e) It is the duty of the respondents to secure the applicant after knowing his whereabouts that too after he has approached the Honourable Andhra Pradesh High Court at Hyderabad by way of filing W.P.No.13690 of 2009 challenging the impugned order of discharge. The respondents ought to have taken steps to secure and to proceed with him by initiating proceedings in a Court Martial as per Rules. But, this was not done by the respondents, which made us to interfere with the impugned order of declaring as a âdeserter, which has subsequently been modified to that of dismissal. Point is answered accordingly.
7. In fine, the application is allowed and the impugned order of dismissal against the applicant is set aside and the applicant is directed to appear before the 2nd respondent viz. The Senior Record Officer, Records the Maratha Light Infantry, Belgaum, Pin-590 009, on 04.04.2012 at 10.00 AM and on his appearance, the respondents shall take him to their Unit and to proceed against him under Section 39(b) of Army Act 1950 before a Court Martial as per Rules. No costs.