1. The applicant had submitted a writ petition (civil) No. 5255 of 2000 before the Honble Delhi High Court for quashing and setting aside order dated 4.11.1999 (Annexure P-10) by which he has been declared as âdeserterâ and discharged. He has also challenged the order dated 21.3.2000 (Annexure P-13) by which his appeal against the order of 4.11.1999 was rejected. He made further prayer for reinstatement with consequential benefits. The same was transferred to the Armed Forces Tribunal on 15.10.2009.
2. The relevant facts of the case in brief are that the applicant was enrolled in the Indian Navy as SA-I on 4.1.1991. In December 1995 the applicant developed some psychiatric problems and was admitted in INHS Kalyani on 24.2.1996. On clinical examination he was medically downgraded to S4A4 Psychiatric (Neurosis). He was discharged from hospital and granted leave for 36 days from 8.3.1996 to 13.4.1996. It is stated that the applicant left home in the second week of April 1996 to rejoin duty at Visakhapatnam but he could not reach his duty station because of sudden and irreversible mental illness. It is further stated that even his family members were not aware of his whereabouts. The applicant claims that he remained in the state of unawareness for three years till in May 1999 his family was able to trace him in Rajasthan. Thereafter he was brought to the mental hospital at Agra for treatment and got cured of his mental illness. On 4.9.1999 (Annexure P-3) he sent a representation to the Chief of Naval Staff (CNS) for grant of permission to rejoin duty. On 21.9.1999, he received a letter from the office of the CNS directing him to report to INS Circar at Visakhapatnam, forthwith, at his own expense. On 8.10.1999 he received a telegram to surrender at any Navy / Army/ Air Force / Civil police station. The applicant reported for duty at INS Circar, Visakhapatnam and was taken into custody and kept confined in the barrack till 4.11.1999 and he was informed vide GENFORM 8044/S that he had been declared a âDeserterâ and directed to leave the unit forthwith.
3. The applicant preferred a statutory appeal to the CNS on 18.2.2000 against the order dated 4.11.1999. When no reply was received his counsel sent a legal notice to the CNS. In the first week of April 2000 the applicant received a letter dated 21.3.2000 from Naval Headquarter informing him that his appeal had been dismissed.
4. The applicant submits that the impugned order dated 4.11.1999 was passed without giving an opportunity to show cause before his dismissal from service. No inquiry was conducted nor any charges were framed. The applicant maintains that he could not have been declared a deserter when he had himself reported for duty and the grounds on which his name was struck down from INS Circar was illegal and contrary to the provisions of law.
5. The applicant has prayed that the impugned order dated 4.11.1999 declaring him a âdeserterâ and the order dated 21.3.2000 dismissing his appeal be quashed and a direction be issued to enable him to rejoin duty forthwith with all consequential benefits.
6. The respondents in their counter affidavit have stated that the applicant never bothered to intimate the reasons for his absence for three years and five months. The applicant was declared in low medical category S3A3(S)T-24. He was granted 36 days balance of annual leave from 8.3.1996. He requested for 10 days extension, which was granted. He was to report back to duty on 23.4.1996. On his failure to report for duty after expiry of leave, action was initiated as per Navy Order 13/90. He was marked âRUNâ with effect from 23.4.1996 and a warning telegram was sent on 26.4.1996 followed by warrant of arrest on 9.5.1996. No intimation of any kind was received from the applicant or any of his relatives till 15.9.1999 when a letter addressed to the CNS was received from the applicant seeking permission to join duty. A reply was sent on 22.9.1999 advising the applicant to surrender himself to INS Circars or to any Armed Forces unit/ police station. The applicant resorted to legal notices and finally surrendered himself at INS Circars on 25.10.1999. Commodore, Bureau of Sailors and Naval Headquarter were informed. In accordance with Para 8 of Naval Order 13/90, Naval Headquarter accorded approval for not claiming the applicant, and he was struck off the Ships books as âDeserter not to be claimedâ on 4.11.1999.
7. The respondents affirm that at no time any intimation was received from the applicant or his relatives about his whereabouts and the whole story about the âmental blockâ during period of absence was concocted. The applicant was found by his relatives in May 1999 but military authorities were not informed till 4.9.1999. No documents to prove the applicants treatment by medical authorities were ever produced by the applicant. It was stated that whole story about âmental blockâ during period of absence was an afterthought.
8. As per rules all deserters over two years are to be kept in confinement and decision of Naval Headquarters is to be obtained for claiming them or otherwise. On directions of Naval Headquarters the applicant was struck off the Ships records.
9. The respondents maintain that the plea of mental imbalance is false since the applicant resorted to legal proceedings which indicate a sound mind. The applicant did not report back for duty inspite of repeated communications. He was thus a deserter as per Section 49(2) of the Navy Act 1957 and not under Section 41 (a) of the Navy Act as stated by the applicant. He is not entitled for any relief. The respondents have prayed that the application be rejected.
10. During the course of the argument the learned counsel for applicant stressed that no proper opportunity was given to defend his case to the applicant. No charges were framed nor any enquiry was made in this respect before declaring him as âdeserterâ. Further statutory appeal filed by the appellant was disposed of without application of mind. Therefore, both the impugned orders are liable to be quashed. On the contrary learned counsel for the respondent states that the appellant remained absent for an inordinate period of three years and five months without intimating the authorities and there after no sufficient explanation for absence has been placed. He was rightly discharged and the statutory appeal was also dismissed after due consideration.
11. We have perused the records and considered the rival submissions made by the learned counsel of parties. From the perusal of record it reveals that applicant has to report on 23.4.1996 but he did not report. Thus the applicant remained absent from duty from 23.4.1996 to 25.10.1999 and was declared a deserter under the provisions of law. During his period of absence the Navy authorities made several attempts to contact him but no reply was received from the applicant or his relatives. The absence period has not been satisfactorily explained, no documentary evidence has been produced in support of his pleas. No intimation has been made even by his family members. On the basis of the over all facts it is inferred that he was not having intention to return on duty. He was rightly declared deserter and discharged under the provisions of law. The story about âmental blockâ for more than three years appears a fabrication. The contention of applicant that he himself had surrendered and therefore he should not be treated as a deserter. Considering the total period of absence and efforts made by respondent authority these contentions are not having weight. We have also seen Navy Order 13/90 under which, if a person remains absent for more than two years respondents were competent to proceed in such matters. The applicants statutory appeal was rejected by the competent authority after due consideration. There is no infirmity and illegality in the said orders. There are no grounds for interference in the orders. The applicant is not entitled for relief. Application is dismissed. No order as to costs.