[Bhanwaroo Khan, J]
1. The applicant Ram Singh, who was enrolled in the Indian Army on 24th December, 1969 and was dismissed from service on 22nd January, 1986 under Army Rule 17 read with section 20 of the Army Act, has filed this original application for setting aside his dismissal order dated 22nd January, 1986 and further for grant of disability pension to him from the date he was dismissed from service.
2. The admitted facts of this case are: that the applicant Ramsingh was enrolled in the Indian Army on 24th December, 1969 and was dismissed from service under Army Rule 17 read with section 20 of the Army Act on 22nd January, 1986. After his dismissal from service, the applicant moved for grant of service pension and ultimately, on his mercy petition, the President of Indian accorded sanction of 75% service pension to the applicant. The applicant was served with a notice dated 28th December, 1985 to show cause as to why he may not be dismissed from service and thereafter, he was dismissed from service on 22nd January, 1986. According to the applicant, since he was placed in low medical category on 18th October, 1985 for six months and as such, he was not in a position to understand whatever proceedings were undertaken against him. The ground for dismissal i.e. his absence from transit camp is bad in law, illegal and against the Rules. He has submitted that since he was a patient of psychosis, no administrative proceedings under section 20(3) of the Army Act read with rule 16 of the Army Rules should have been initiated against him as he was unable to understand the proceedings initiated against him. According to him, neither his signatures were ever obtained nor his explanation was sought. He has, therefore, prayed for setting aside the dismissal order dated 22nd January, 1986 and further for grant of disability pension to him.
3. The non-applicants filed a detailed reply to the application and have submitted that this application is barred by limitation and thus, it cannot be considered at such a belated stage. According to the non-applicants, the applicant was a habitual offender and has been punished six times. In the year 1984, the applicant was given leave for 62 days but when he did not report on duty after issuance of apprehension roll, a court of inquiry was held which declared him deserter. When apprehended and did not improve his behaviour, a show cause notice under section 20(3) of the Army Act read with Army Rule 17 was served but the applicant refused to accept the same, it was read over and explained to him. Since no reply was submitted, dismissal order was passed as per Rules after following the due procedure. The entire proceedings were taken against the applicant in accordance with Rules. Since he was dismissed from service, as per the Pension Regulations for the Army, 1961, he is not eligible for any pension. It was, therefore, prayed that this application may be dismissed with costs.
4. We have heard Mr. Vijay Poonia, the learned counsel for the applicant and Mr. Harish Maan, the learned counsel for the non-applicants and have carefully gone through the record of the case.
5. It was pleaded by the learned counsel for the applicant that when the applicant remained absent with effect from 10th November, 1984 and after holding a court of inquiry, when his name was struck off from the Army with effect from 10th November, 1984, how the non-applicants could have issued a show cause notice to the applicant on 28th December, 1985. He has, therefore, argued that entire proceedings are illegal and against the Rules and hence, deserves to be set aside and quashed.
6. It was submitted that the applicant was placed in low medical category for six months prior to the issuance of show cause notice, show cause notice could not have been issued to him on 28th December, 1985 as the applicant was not in a position to understand the proceedings initiated against him. It was further submitted that since the applicant was in low medical category, he should not have been dismissed from service without subjecting to the medical board.
7. Per contra, learned counsel appearing for the non-applicants argued that court of inquiry was conducted under section 106 of the Army Act as per the procedure provided under R.183 of the Army Rules and the moment one remain absent without leave, a court of inquiry is conducted by the concerned Commanding Officer and the individual shall be deemed to be a deserter. He has argued that when the deserter is apprehended, a final inquiry is conducted and appropriate action is taken against the defaulter. The applicant when remained absent, court of inquiry was conducted and thereafter, he was declared as deserter. He was apprehended on 4.8.1985 and thereafter, show cause notice was served upon him under section 20(3) of the Army Act read with rule 16 of the Army Rules but the applicant refused to receive the notice as well as dismissal order. He was made to understand in the presence of one independent witness about the contents of the show cause notice and the dismissal order. According to the learned counsel, depression is not such a disease which could lead to an inference that the person having depression would not be able to understand the proceedings taken or initiated against him. Thus, after following the due procedure of law, the army authorities have passed the dismissal order. Moreso, the dismissal order was passed in the year 1986 and the applicant has approached this Tribunal in the year 2010 i.e. after the lapse of about 24 long years and so, this Court cannot look into the dismissal order which was passed before 24 years and there is no plausible explanation to consider this case with the period of limitation for setting aside the dismissal order.
8. Admittedly, the dismissal order was passed in the year 1986 and the applicant has approached this Tribunal to challenge the dismissal order on 23.3.2010 i.e. after the lapse of about 24 long years. Section 22 of the Armed Forces Tribunal Act provides for limitation and as per this section, the application submitted by the applicant is not within limitation and is certainly barred by time. Therefore, prima facie this Tribunal is not empowered to look or decide this matter, which is beyond limitation and has been presented before this Tribunal after the lapse of about 24 long years.
9. Notwithstanding this, the applicant has been punished by the non-applicants for violation of certain offences under the Army Act and the show cause notice issued to him clearly shows that he is a habitual offender. The note appended to the show cause notice shows that he has refused to accept the show cause notice and therefore, contents of the show cause notice were read over and explained to him in presence of one independent witness. Thereafter, when he failed to submit his explanation, dismissal order was passed and again, he refused to accept the dismissal order. In such circumstances, it cannot be inferred that a person falling in low medical category for suffering by depression cannot understand the proceedings initiated against him. Therefore, the argument advanced by the learned counsel for the applicant that proceedings cannot be initiated against an unsound mind cannot be sustained.
10. In this view of the matter, we find no force in this application and it is hereby dismissed accordingly. There shall be no order as to costs.