Daya Shankar Tiwari Vs. Chief of the Army Staff, New Delhi and ors. - Court Judgment

Sunil Ambwani, J.

1. The facts of this writ petition are stated as below.

2. Petitioner joined Army as Sepoy on 28.8.1977. While he was posted at Panagach, he met with an accident while on bona fide Government duly. His motor-cycle skidded, on account of which he sustained severe injuries. The injury was attributed to Military service in peace and as a result thereof, the petitioner was placed in Medical Category 'B' (permanent) w.e.f. 12.11.1982, as a case of 'fracture med-shaft, femur (Lt). The disability was estimated of more than 20%. Petitioner submitted a willingness certificate to continue in service and on the recommendation of officer commanding unit to the effect that the individual could be suitably employed in his own trade, he was retained in service in the same trade, but was given an alternative Job. The petitioner made a claim for being re-mustered or retained as Junior Camp Officer (Religious Teacher) called Pandit. The application was, however, rejected on 22.11.1992 on the ground that he had been downgraded to Medical Category 'B' (permanent).

3. After completing ten years of service, a Medical Board was held on 10.12.1987 at Military Hospital, Dehradun, in which the petitioner was found medically unfit to be continued in service and was recommended for being relieved from Army service. This recommendation was approbated by A.D.M.S. U.P. Area, Bareilly, on 30.7.1987 andconsequently, petitioner was discharged from Army w.e.f. 1.9.1987 vide discharge order dated 10.3.1987 which was served upon the petitioner on 31.8.1987.

4. Petitioner challenged the order of discharge in Writ Petition No. 21823 of 1987, which was heard and disposed of vide judgment and order dated 28.10.1992. The Court directed that if petitioner is still entitled to get benefit of the provisions of disablement and he makes an application for it, his application for that purpose shall be considered in accordance with law within a period of three months. An application was made by the petitioner on 22.2.1992 to the Record Officer, A.S.C. (M.T.) for appointment as Junior Camp Officer (R.T.) to be treated in continuation of his earlier application made for same purpose on 4th November, 1982, which had been rejected vide order dated 22.11.1982. Army Head-quarter by its communication dated 8.9.1992, addressed to the A.M.C. Record (M.T.) Bangalore, formed an opinion that petitioner can be re-enrolled in terms of para 143 of Regulations for the Army Vol. I Revised Edition, 1987. Acting on the aforesaid directions, Medical Examination was carried out on the person of the petitioner on October, 17, 1992 at Military Hospital, Varanasi and that by letter dated 22.3.1993, the petitioner was required to report for re-enrolment in the office of B.R.O., Varanasi, as Sepoy-Driver (M.T.). The petitioner was thus re-enrolled as Sepoy-Driver (M.T.).

5. A Writ Petition No. 13885 of 1985 was filed by the petitioner while serving as a Sepoy-Driver (M.T.) upon re-enrolment praying to quash the order dated 23.8.1987 and for payment of salary during the discharge period and to treat him in continuous service with all benefits. He further prayed that the application dated 4.11.1982 for appointment as 'Religious Teacher' be considered. The petition was dismissed on 27.11.1996, on the ground that the prayers to quash the order of discharge were hit by principle of res judicata as his earlier writ petitionwas decided without giving him relief, and that the petitioner had accepted the said position and had acted upon the same. A review application was also dismissed on 5.2.1997, against which petitioner filed Special Appeal Nos. 132 of 1997 and 154 of 1997. The appellate court held that the petitioner was discharged vide discharge order dated 23.8.1987 on being placed in medical category lower than 'A.Y.E.' and not upon prescribed Military Physical Standard. The discharge order was passed under item No. III (V) Rule 13 of the Table annexed to the Army Rules on the basis of medical opinion categorizing him as permanent low medical category 'B' and that such an opinion unless it suffered from malice cannot be supplanted by this Court under Article 226 of the Constitution of India. Considering the remaining prayers of the petitioner in the writ petition to consider the application dated 4.11.1982 for appointment as 'Religious Teacher', it was found by the Bench that application had been rejected on 22.11.1982. It thereafter examined the claim of the petitioner for appointment to the cadre of Religious Teacher consisting of Jamadar and Subedars/Rasildars in the ratio of 3 : 1 which constitute to be a Special List of J.C.Os. who are not eligible for promotion to the rank of Sub-Major/Ris. Major and an individual, in order to be eligible for appointment to this special list must be in medical category 'A' and must not be below 25 years or above 35 years of age on the date of appointment and must also be possessed of the minimum educational qualifications prescribed by A.J. 204 of 1958 as amended from time to time. The Bench of this Court held that appellant who has attained the age of 40 years during the pendency of the special appeals was placed in medical category 'B' (permanent) on 12.11.1982, and as such his claim for appointment as Religious Teacher was rightly rejected vide order dated 22.11.1982. He continued to be placed in medical category 'B' (permanent) from 1982 to 1987 when he was discharged after completing qualifying service of 10years. It was held that if thepetitioner is aggrieved by the orderdated 22.11.1982 then an order thatpetitioner may make an appropriateapplication which must be consideredand decided according to rules,cannot be used to reopen a closedchapter for remustering as religiousteacher. The Bench found anotherreason to reject the prayer which isrelevant for the purpose of decision ofthis writ petition. The observationsare quoted as below :

'That apart, having acquiesced to his being re-enrolled as Driver (M.T.) in consideration of his application moved pursuant to the judgment of the Court dated 28.1.1992, the appellant cannot be afforded unmerited indulgence to lay any claims now in respect of the post of J.C.O. Religious Teacher (Pandit). It has come in the counter-affidavit filed in the special appeal that the appellant has since been discharged on attaining the proscribed age of 40 years during the pendency of the special appeal and being aged about 40 years, he has ceased to be eligible for appointment to the post of Religious Teacher by reason of his having become overage.'

In the concluding paragraph of the judgment of special appeal on 1st September, 1997, it was observed as follows :

'It may, however, be observed that this judgment shall not impinge upon the decision on the question as to how should the interim period from the date of discharge to the date of re-enrolment be treated which is pending consideration before the appropriate authority, to be decided in accordance with law.'

A Review Application No. 67621 of 1997 filed by the petitioner was dismissed in the aforesaid special appeal was dismissed on 23.1.1998. The petitioner challenged the order in Special Leave Petition Nos. 3141-3142 of 1998 which was allowed to be withdrawn with the following observation :

'The petitioner has put in issue, the second order of his discharge from service dated 14.8.1995 by filing Writ Petition No. 13165 of 1996, which, we are informed is still pending adjudication in the High Court at Allahabad.

Faced with the situation that against the order of dismissal of Writ Petition No. 13885 of 1995 challenging the order of first discharge, the review petition and a special appeal were both dismissed, and a second order of discharge had also been passed, learned counsel for the petitioner seeks to withdraw these special leave petition so as to pursue Writ Petition No. 13165 of 1996 which is still pending in the High Court. We grant her prayer and dismiss the special leave petitions as withdrawn. The dismissal of theseS.L.Ps. shall not be put against the petitioner while deciding Writ Petition No. 13165 of 1996.'

6. Thereafter the petitioner filed a third Writ Petition No. 1458 of 2000 which was disposed of by this Court on 11.1.2000 with a direction that if the petitioner makes a representation within six weeks, the same shall be decided by Officer Incharge A.S.C. Record (M.T.), Bangalore, within three months from the date a certified copy is produced before him. The petitioner's representation for providing him pension as well as giving him service benefit for full period of his service along with A.F.P.P. plus 18% interest dated 21.1.2000 was decided by Col. G. M. Khan, Officiating O.I.C. Records, in pursuance of the aforesaid order dated 12.4.2000 and for the reasons given in the order, his representation was reflected. Aggrieved, the petitioner has filed this writ petition for quashing the order dated 12.4.2000, as above and dated 21.10.1999 (discharge order) a copy of which was not served upon the petitioner and for a writ of mandamus commanding the respondents to pay post retirement benefits to the petitioner with interest of 18% till the date of payment. Along with the writpetition, a prayer has been made to direct the respondents to supply the copy of the dismissal order dated 21.10.1999 to petitioner, and further to pay the entire amount of A.F.P.P. fund, A.G.I. along with interest.

7. A counter-affidavit of Major J.B.S. Thapa, Coy C.D.R. 504 A.S.C. Bn.C/O.56 A.P.O. has been filed to which a rejoinder-affidavit has also been filed. By order dated 18.1.2002, the respondents were directed to file a copy of the dismissed order which has been brought on record, by an application dated 22.2.2002 along with affidavit of Major Balbir Singh.

8. The dismissal order has been passed by Brig. Commandant A.S. Centre under Section 20(3) of the Army Act after sanction on 21.10.1999. The order contains 5 sheets and includes 89 names in all in which the petitioner's name finds place at Sl. No. 16. He has been dismissed being deserted with effect from the date of absence mentioned in column (d) of the list in which petitioner has been shown to have been absent from 2.5.1996. At the end of the order dated 21.10.1999, it has been mentioned that it has not been practicable to comply with the provisions of Army Rule 17 in their cases.

9. I have heard Sri D. S. Tiwari petitioner appearing in person and Sri A. K. Singh, Additional Standing Counsel, Central Government.

10. By order dated 12.4.2000, the petitioner had been denied pension on the ground that he was re-enrolled on 10.4.1993 in terms of para 143 Regulations for the Army (Vol. 1). 1987 and was required to be finally discharged on completion of 40 years of age w.e.f. 31st July, 1996 but in the meantime, while serving with 504 A.S.C. Bn, he absented without leave w.e.f. 2.5.1996. An apprehension roll was issued by 504, A.S.C. Bn. on 6.5.1996 to the Superintendent of Police, Ballia, to apprehend him. It is stated in the order that the petitioner was neither apprehended nor reported voluntarily and as such, he was declared deserter with effect from 2.5.1996. A Court of Inquiry was heldunder Section 106 of Army Act, 1950 and being a peace deserter, the petitioner was dismissed from service w.e.f. 21.10.1999 in terms of Army Act Section 20(3) and Army Headquarters letter dated 11.3.1980 as amended vide letter dated 4.8.1987. Since the petitioner was dismissed from service, under Section 20(3) of the Army Act as a peace deserter, he is not entitled to any type of pensionary benefit. Para 113 (a) of Pension Regulation for the Army, 1961, Part I. provides that an individual who is dismissed under the provisions of Army Act is not eligible to any type of pension and gratuity In respect of all previous service. The petitioner had rendered only 13 years 2 months and 25 days service in Army and thus in terms of Regulation 132 of Pension Regulation, he did not complete 15 years of qualifying mandatory service and is thus not entitled to any type of pension. The order further states that upon final settlement of his accounts, a debit balance of Rs. 3,968 was adjusted from his ad hoc bonus 1995-96 and 30 days encashment of annual leave for the year 1996 and thus he was required to return Rs. 3,900 A.S.C. Record (M.T.) duly countersigned by Zila Sainik Board.

11. The submission made by the petitioner can be summarized as follows :

(i) His prayer for being considered for appointment as Religious Teacher (Pandit) has not attained finality in view of the fact that special leave petition was dismissed as withdrawn in terms of alternative remedy against the dismissal order but that by itself will not conclude his rights against the order dated 22.11.1992.

(ii) Whereas the respondents in their counter-affidavit filed in special appeal stated as a fact that petitioner had been discharged on attaining the age of prescribed 40 years, the petitioner was actually forced to leave army on 2.5.1996 before completing 40 years and thus he could notearn pensionary benefit. The Army Officials have approbated and reprobated the facts in proceeding in Court according to their convenience.

(iii) Since the petitioner was re-enrolled in army, he is entitled to count the period of discharge from 1.9.1987 to 10.4.1993 lor the purpose of accounting his pension and :

(iv) The petitioner was tortured and forced to leave the unit on 2.5.1996 as he did not succumb to the pressure of respondents to send willingness certificate and that, he was pursuing his remedy in Court of law. Inquiries on the letter written by his wife dated 18.5-1996 regarding harassment were initiated as well as statutory complaints made by him were initiated but were suppressed to conceal true facts, and that he was illegally declared as deserter w.e.f. 2.5.1996 to deny pension benefits.

12. The respondents have denied the claim of the petitioner on the ground that the question of re-enrolment as religious teacher has been finally concluded by the decision of this Court as aforesaid and that the petitioner did not complete either 15 years of service or continued in service upto 40 years and is thus not entitled to pension. It is submitted by the counsel for the respondents that the petitioner was re-enrolled on 10.4.1993 in terms of para 143 Regulations for the Army (Vol. 1) 1987 and since he deserted army on 2.5.1996 and was not apprehended or surrendered inspite of apprehension order issued to the Superintendent of Police, Ballla, he was dismissed from service under Section 20(3) of the Army Act after information to the Central' Government and after that it was not practicable to hold an inquiry. The petitioner is thus not entitled to pension and gratuity or any other pensionary benefit in terms of para 113 (a) of the Pension Regulation forthe Army, 1961. Part 1. He has relied upon a judgment of Supreme Court in Union of India v. P. D. Yadav, 2002 (1) SCC 405, and the judgment in J. C. 116244 Ex. Subedar Joginder Singh v. Union of India and Ors. (2002) 1 UPLBEC 150, in submitting that pension is earned on satisfactory completion of qualifying service subject to further condition that the person concerned is not otherwise disentitled thereto. The forfeiture of pension in respect of a person who has been dismissed in consequence of trial or General Court Martial in permissible and does not amount to double jeopardy.

13. The question whether petitioner is entitled for appointment as Religious Teacher has lost its efficacy on the ground that petitioner has crossed the maximum age of 35 years. The fact whether he was eligible to be considered cannot be a ground to grant him any relief at this stage and in view of the discussions to follow, it would not be necessary to consider the said relief to be awarded to petitioner.

14. According to petitioner, he was to be discharged on 31.7.1996 on attaining the age of 40 years and is thus entitled to pension. In fact petitioner was under order of discharge vide A.S.C. (M.T.) letter dated 14.8.1995 and that being S.O.S. from Army with effect from 31.7.1996, he was required to submit the pension documents. Since these documents were to be received in advance in November, 1986, petitioner was advised to report immediately, for completion of pension documents. By a subsequent letter dated 14.3.1996, addressed to petitioner by Capt. Adjt for Officer Commanding, petitioner was informed that on the pretext of Court cases pending in the High Court, he is not submitting information/ documents for preparation of advance pension, and he was advised that the pending Court cases did not have any connection with the pension documents and to submit required documents immediately failing which he will be held responsible for any financial/ legal complication.Petitioner was thus aware that he has to retire on 31.7.1996. It is difficult to believe that a person fighting for his rights and being aware that he will be discharged with pension upon completing 40 years on 31.7.1996 will desert Army on 2.5.1996.

15. By order dated 7.10.1999, the petitioner has been dismissed from Army service under Section 20(3) having been treated as deserter w.e.f. 2.5.1996. The same order provides a note' that it has not been practicable to comply with the provisions of Army Rule 17 in the cases. This calls for examination of the relevant provisions of the Army Act and Rules to find out whether petitioner could have been declared as a deserter, and dismissed from Army under Section 20(3) of the Army Act. Sections 105 and 106 of the Army Act, 1950, deal with capture of deserters and inquiry into absence without leave. Sections 105 and 106 are quoted as below :

'105. Capture of deserters.--(1) Whenever any person subject to this Act deserts, the commanding office of the corps, department or detachment to which he belongs, shall give written information of the desertion to such civil authorities as, in his opinion, may be able to afford assistance towards the capture of the deserter, and such authorities shall thereupon take steps for the apprehension of the said deserter in like manner as if he were a person for whose apprehension a warrant had been issued by a Magistrate, and shall deliver the deserter, when apprehended, into military custody.

(2) Any police officer may arrest without warrant any person reasonable believed to be subject to this Act, and to be a deserter or to be travelling without authority, and shall bring him without delay before the nearest Magistrate. To be dealt with according to law.

106. Inquiry into absencewithout leave.-- (1) Whenever anyperson subject to this Act has been absent from his duty without due authority for a period of thirty days a Court of inquiry shall, as soon as practicable, be assembled, and such Court shall, on oath or affirmation administered in the prescribed manner, inquiry respecting the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or necessaries : and if satisfied of the fact of such absence without due authority or other sufficient cause, the Court shall declare such absence and the period thereof, and the said deficiency, if any, and the commanding officer of the corps of department to which the person belongs shall enter in the Court-martial book of the corps or department a record of the declaration.

(2) If the person declared absent does not afterwards surrender or is not apprehended, he shall, for the purpose of this Act, be deemed to be a deserter.'

16. Whereas Section 105 provides apprehension of the deserters. Section 106 required an inquiry into the matter by convening a court of inquiry within 30 days to be satisfied whether the person was absent without due authority or other sufficient cause. If the person declared absent does not afterwards surrender or is not apprehended, he shall, for the purpose of the Act, be deemed to be a deserter. The expression 'deserter' has not been defined in the Army Act. Section 38(1) of the Army Act says that any person subject to this Act who desert the service shall, on conviction by a Court-martial, if he commits the offence on active service or when under orders for active service, be liable to suffer death or such less punishment as in this Act mentioned ; and if he commits the offence under any other circumstances, be liable to suffer imprisonment for a term which may extend to seven years or suchless punishment as is mentioned in this Act. Section 39 deals with absence without leave and in such cases on conviction by Court-martial such person will liable to suffer imprisonment for a term which may extend to three years or such less punishment as is mentioned in this Act.

17. In Virendra Kumar through his wife v. Chief of the Army Staff, New Delhi, AIR 1986 SC 1060, the Supreme Court had occasion to consider the question of desertion after examining the provisions of Sections 38, 39, 104, 105 and 106 of the Army Act ; paragraph 418 of the Artillery Records Instructions. 1981 and with reference to dictionary meaning of deserter. Supreme Court found that Army Act makes distinction between desertion and absence without leave simplicitor, it held that absence without leave may be desertion if accompanied by necessary 'animus deserendi' or deemed to be desertion, if the Court of inquiry makes declaration of absence prescribed by Section 106 after following the procedure laid down and the person declared absent had neither surrendered nor been arrested. Capt. Virendra Kumar had succeeded in his earlier petition and revocation of commission was invalidated by Court. He did not join at the place of posting, whereupon apprehension warrant was issued against him and he was arrested and detained. The Army Authorities proceeded against Virendra Kumar on ground that he was deserter and not that he was deemed deserter. It was held that it was within the competence of the authorities to prima facie decide whether the officer when he absented himself did or did not intend to return to duty, when Army Authorities had proceeded against petitioner on the ground that he was deserter and not on ground that he was deemed deserter. There was no need to comply with the provisions of Section 106. In the said case, it was stated in the counter-affidavit that when Capt. Virendra Kumar failed to report at his new unit, the Army authorities were left with no choice but to issue anapprehension roll for his arrest since by then was clear to the Army authorities that Capt. Virendra Kumar was not only absent without leave but had no intention to join duty for which he was ordered, and thus, it was a clear case of desertion.

18. Coming to the present case, it is alleged that petitioner absented on 2.5.1996. The circumstances under which he absented, are spelt out in the representation filed by his wife on 18.5.1996. She stated in the complaint that on account of case filed by petitioner, he was being harassed. On 1.5.1996, when he served copy of affidavit of service, upon the respondents counsel in Writ Petition No. 1014 of 1996 and returned to his unit, he was threatened for arrest and that at 11 p.m. in the night when he went to his bed, one individual started slapping and threatened to beat severely if he will attend the Court. The petitioner felt unsafe in the Unit and, therefore, he left the unit and informed through the telegram to his superior officers. A prayer was made in the application that supreme authority, namely, the Chief of Army Authority, New Delhi, to which the application was addressed, may pass suitable orders for attachment in any other local unit so that petitioner may surrender for further legal action. The application was acknowledged on 11.7.1996 by the Directorate General of Army Staff, Army Headquarter, New Delhi. The receipt was acknowledged and it is stated that the matter is being looked into. It appears that a Court of inquiry was ordered on the complaint and a communication with this regard was sent to the petitioner, but the fate of the Court inquiry and any decision taken on application for surrender has not been brought on record.

19. It is apparent from the record that petitioner was in the meanwhile pursuing his Court cases. The Writ Petition No. 13885 of 1995 was decided on 27.11.1996. Review Application No. 655 of 1996 was dismissed on 5.2.1997. Special Appeal Nos. 132 and 134 of 1997 were decided on 1.9.1997 and that areview application was dismissed on 23.1.1998. Orders were passed on Special Leave Petition by Supreme Court on 23.1.1998. The petitioner was appearing in the Court all alone. He appeared in person in special appeal which was decided on 1.9.1997. The Army Authorities were fully aware of his availability in courts and whereabouts. In the counter-affidavit filed in special appeal, the respondents has stated that petitioner was discharged from Army on 31.7.1996. This was apparently a wrong statement given to mislead the petitioner as well as the Court both. In the records of Army Authorities, the petitioner has been treated, as a deserter. In case the petitioner was treated to be absconding and was thus treated as a deemed deserter, this fact could be easily brought to the knowledge of the Court either by an application or even orally. It is strange and surprising that the petitioner, who was contesting Court cases, appearing in person, and was available all alone was being treated as a deserter and warrants of apprehension were issued against him and that finally after the decision of the Court case, he was dismissed from Army under Section 20(3), holding that the show cause notice is not practicable to be given to him, treating him as deserter w.e.f. 2.5.1996.

20. Section 106 of the Army Act, provides that where a person is absent without leave, a Court of inquiry is to be held out whether his absence is without due authority or other sufficient cause, for reaching to any conclusion. It is necessary for the army authorities to at least give notice to a person who is held to be absent without leave and to consider the cause of his absence. He can be declared deemed deserter after holding Court of inquiry and communicated that he is being treated as absent without due authority or sufficient cause, and if afterwards, he does not surrender or is apprehended, he shall be deemed to be a deserter. In the present case, no such inquiry appears to have been held. The petitioner who was available in courts, and a statementwas given that he has been discharged upon attaining forty years of age on 31.7.1996, was treated to be absent without leave, and thus a peace time deserter.

21. Section 20(3) of the Act can be resorted to after a notice is given to the person under Rule 17. If it is not reasonably practicable to give notice, order can be passed for his dismissal after giving a certificate to that effect. In the present case the petitioner had applied for surrender. The application of his wife to that effect was acknowledged, and further that, he was contesting the cases and was present in Courts, arguing in person. The certificate that compliance of Rule 17, was not possible is wholly illegal, arbitrary and appears to have given without placing correct fact before the competent authority. The petitioner was thus, treated wholly unfairly and unreasonably at the hands of Army Authorities.

22. On the facts and circumstances, the writ petition succeeds and is allowed. The impugned order dated 21.10.1999 in so far as it dismisses the petitioner from service under Section 20(3) of Army Act w.e.f. 2.5.1996, treating him as deserter, and the order dated 12.4.2000 (Annexure-4 to the writ petition) rejecting petitioner's representation for pension are quashed. Petitioner shall be deemed to have been discharged from active service in Army w.e.f. 31.7.1996 after completing the age of forty years, and is held entitled to pension. A mandamus is issued restraining the respondent from recovering Rs. 3,900, and to pay him the entire arrears of retirement benefits including pension after finalizing his pension papers with 12% simple interest within a period of three months from the date a certified copy of this order is served upon the respondents. The costs of this petitioner is granted to be Rs. 5,000 to be paid to petitioner, who has appeared in person.