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2000 DIGILAW 551 (CAL)

Union of India v. Chitta Ranjan Maity

2000-11-10

ASHOK KUMAR MATHUR, BARIN GHOSH

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Judgment Ghosh, J.: 1. This appeal is directed against the judgment and order of a learned Single Judge of this Court dated 12th September, 1989 passed in writ petition, registered as Civil Rule No. 13037 (W) of 1986, whereby and under the writ petition was allowed in part and the appellants were directed to treat writ petitioner discharged from services instead of dismissal. 2. The writ petitioner was enrolled in the Indian Army on 24th July, 1973. He got married in May 1976. He was owner of 10 acres of land, 4 big fishing ponds, 1 bamboo garden and 1 cocoanut garden. The wife of the writ petitioner was unable to look after the said properties. The writ petitioner, thus, on 4th November, 1980 applied for discharge' from his service. Before the said application could be considered, on 30th November, 1980, without intimating anyone, the writ petitioner left. During the period between 1973 and 1980 on two occasions the writ petitioner overstayed his leave and accordingly was twice awarded punishment of 28 days imprisonment in Military Custody. Since the writ petitioner left on 30th November, 1980 without obtaining any permission, he was declared a deserter by a Court of Enquiry held on 31st December, 1980 in terms of Section 106 of the Army Act. Ultimately, he was dismissed from the services with effect from 17th May, 1984 under Section 20(3) of the Army Act. The Discharge Certificate of the writ petitioner was issued on 13th February, 1986 showing him to have been dismissed from services. After the order of dismissal was communicated to the writ petitioner, he made representation to the effect that instead of showing him to have been dismissed it be shown that he has been discharged from the Army.• That request was not acceded to. The refusal of the appellants to accede to the request of the writ petitioner for treating him to have been discharged instead of dismissed was assailed in the writ petition, which was affirmed on 5th May, 1986. The learned Single Judge who decided the matter held that the punishment of dismissal was too harsh and accordingly passed the order impugned in this appeal by following the decision of the Supreme Court in the case of (1) Bhagat Ram v. State of Himachal Pradesh & Ors. reported in AIR 1983 SC 454 . 3. The learned Single Judge who decided the matter held that the punishment of dismissal was too harsh and accordingly passed the order impugned in this appeal by following the decision of the Supreme Court in the case of (1) Bhagat Ram v. State of Himachal Pradesh & Ors. reported in AIR 1983 SC 454 . 3. In the case of Bhagat Ram v. State of Himachal Pradesh & Ors. (supra), the Supreme Court was not concerned with an Army deserter. In that judgment, the Supreme Court pointed out that one limb of the natural Justice is proportionality of the punishment. With due respect to the learned Single Judge we do not think that the ratio of the said judgment of the Supreme Court could at all be applied in the instant case and in particular in the manner, the learned Single Judge sought to apply the same. 4. Section 2 of the Army Act, 1950 makes it abundantly clear that the person enrolled in 'the Army would remain subject to the provisions of the said Act until duly retired, discharged, released, removed, dismissed or cashiered from the service. Section 19 of the said Act provides that subject to the provisions of the said Act and the Rules and Regulations made thereunder the Central Government may dismiss or remove from service any person subject to the said Act, whereas Section 22 of the, said Act provides that any person subject to the said Act may be retired, released or discharged from the service by such authority and in such manner as may be prescribed. Rule 11 of the Army Rules, 1954 provides that every person enrolled under the Act shall, as soon as he becomes entitled under the conditions of his enrolment to be discharged, be so discharged with all convenient speed. Rule 11 of the Army Rules, 1954 provides that every person enrolled under the Act shall, as soon as he becomes entitled under the conditions of his enrolment to be discharged, be so discharged with all convenient speed. Rule 13 of the said Rules provides that a person similarly situate that of the petitioner could be discharged on fulfilling the conditions of his enrolment or having reached the state at which discharge could be enforced or having been found medically unfit for further service or if a request for discharge has been made and if the Commending Officer is satisfied as to the desirability of sanctioning the application having regard to the fact that the strength of the unit will not by such discharge be unduly reduced or when the authorities concerned desire to discharge an enrolled person. Section 20(3) of the said Act provides that any prescribed Officer can dismiss a person like the petitioner. Section 38 of the said Act provides that an Army man for having deserted or having attempted to desert may be convicted by Court-martial and such conviction may be a death sentence. Section 39 of the said Act provides that if an Armyman absent himself without leave he shall, on conviction by Court-martial be liable to suffer imprisonment for a term which may extend to three years. Section 101 of the said Act provides that any person subject to the said Act, who is charged with an offence under the said Act, shall be taken into Military Custody. Section 101 of the said Act provides that any person subject to the said Act, who is charged with an offence under the said Act, shall be taken into Military Custody. Section 106 of the said Act provides that when any person subject to the said Act has been absent from his duty without due authority for a period of thirty days, a Court of enquiry shall, as soon as practicable, be assembled, and such Court shall, on oath or affirmation administered in the prescribed manner inquire 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 reason, the Court shall declare such absence and the period thereof and the said deficiency if any and the Commanding, Officer of the corps or department to which the person belongs shall enter in the Court-martial book of the corps or department• a record of the declaration. It further provides that if the person declared absent does not afterwards surrender or is not apprehended, he shall, for the purposes of the said Act, be deemed to be a deserter. 5. An armyman, therefore, once enrolled remains an army man until, inter alia, retired or discharged or dismissed. The discharge shall become effective, if the person seeks discharge, only upon he being discharged by the authority concerned. If an armyman is to be discharged on his request alone, there would be no army at the time of need. Every army person would seek discharge the moment they would be assigned difficult assignments. In the instant case, the writ petitioner was never interested to rejoin the army. He deserted the army with intention not to rejoin the army. The writ petition was not to permit the petitioner to rejoin the army. It was to treat him as if he has been discharged and not dismissed. For having deserted the army, the writ petitioner could be sentenced after having been arrested. Surprisingly, the authorities have not taken any step either to arrest the writ petitioner or to sentence him. By that itself they have shown unprecedented indulgence to the writ petitioner. The writ petitioner was, therefore, not entitled to any further indulgence. 6. For having deserted the army, the writ petitioner could be sentenced after having been arrested. Surprisingly, the authorities have not taken any step either to arrest the writ petitioner or to sentence him. By that itself they have shown unprecedented indulgence to the writ petitioner. The writ petitioner was, therefore, not entitled to any further indulgence. 6. It was submitted before us that in terms of the said rules, the writ petitioner was not given an opportunity of hearing. Rule 17 of the said rules is as follows : "17. Dismissal or removal by Chief of the Army Staff and by other Officers.-Save in the case where a person is dismissed or removed from service on the ground of conduct which has led to his conviction by a Criminal Court or a Court-martial, no person shall be dismissed or removed under sub-section (1) or sub-section (3), of Section 20, unless he has been informed of the particulars of the cause of action against him and allowed reasonable time to state in writing any reasons he may have to urge against his dismissal or removal from the service:- Provided that if in the opinion of the Officer competent to order the dismissal or removal, it is not expedient or reasonably practicable to comply with the provisions of this rule, he may, after certifying to that effect, order the dismissal or removal without complying with the procedure set out in this rule. All cases of dismissal or removal under this rule where the prescribed procedure has not been complied with shall be reported to the Central Government." 7. Thus, the rule relied by the Counsel of the writ petitioner specifically mentions that where it is impracticable to give notice proceedings may be held without notice. That apart even if the writ petitioner had been given notice of enquiry, the result would have been same. The writ petitioner had no right to compel the appellant to accede the application made by the writ petitioner to discharge him. We, therefore allow the appeal and set aside the order under appeal as well as the fresh discharge certificate given to the writ petitioner on the basis of the order under appeal and dismiss the writ petition. There shall be no order as to costs. Mathur, C. J.: I agree. Later-As prayed for, let xerox certified copy be supplied on proper compliance.