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2003 DIGILAW 1401 (MAD)

S. Krishnamoorthy v. The Officer Incharge

2003-09-04

A.K.RAJAN

body2003
Judgment :- This Writ Petition has been filed for issuance of a writ of certiorarified mandamus, to call for the records of the first respondent in his proceedings No.6920564/NER/FSA dated 02.01.2002, quash the same and consequently direct the respondents to re-recruit the petitioner in the post of Sepoy. 2. The order impugned reads as follows : "REINSTATEMENT IN THE SERVICE 1.Refer to your petition dated 19 Dec 2001 addressed to this office and copy to Commandant AOC Centre. 2.As per records held by this office, you were enrolled in Army Ordnance Corps on 03 Apr 84. While serving with 269 Fd Wksp Coy EME, TSS Section, you were granted 07 days casual leave with effect from 07 Nov 91 to 13 Nov 91. You did not rejoin duty after expiry of the said leave and remained absent wef 14 Nov 91. Since you did not rejoin duty, you have been declared deserter and subsequently dismissed from service wef 23 Jun 95 on completion of 3 years from the date of desertion under Army Act Section 20 (3). 3.It is regretted that there is no provision to re-instate the personnel already dismissed from service." 3. From the above, it is seen that, when the petitioner went on leave and did not rejoin the duty, the authorities waited for three years and thereafter, as per the Army Rules, passed an order of dismissal, on the ground that the petitioner was a deserter and the application to re-consider the same has been rejected. 4. Inasmuch as the petitioner deserted the Army and has been dismissed, the order impugned cannot be said to be invalid. There is no provision in the Army Rules to re-employ a person, who was dismissed from service. 5. Learned counsel for the petitioner submits that even the dismissed employee is entitled for certificate of termination of service under Section 23 of the Army Act. 6. There is no provision in the Army Rules to re-employ a person, who was dismissed from service. 5. Learned counsel for the petitioner submits that even the dismissed employee is entitled for certificate of termination of service under Section 23 of the Army Act. 6. Section 23 of the Army Act reads as follows : "23.Certificate on termination of service :- Every junior commissioned officer, warrant officer, or enrolled person who is dismissed, removed, discharged, retired or released from the service shall be furnished by his commanding officer with a certificate, in the language which is the mother tongue of such person and also in the English language setting forth - (a) the authority terminating his service; (b) the cause for such termination ; and (c) the full period of his service in the regular Army." 7. Under this Section, every enrolled person, who is dismissed, removed, discharged, retired or released from the service, shall be furnished with a certificate, specifying the authority terminating his service, the cause for such termination and the full period of his service in the regular Army. 8. It is seen from the typed set of papers, filed along with the petition, that the petitioner was admitted in the Mental Illness Department of District Headquarters Hospital, Cuddalore, and he was taking treatment from 10.11.1991 onwards. The order impugned has been passed on 02.01.2002. It is stated in the affidavit that the petitioner submitted an application before the first respondent on 29.10.2001, seeking to consider his application for rejoining in service, on the ground that he suffered mental disorder and subsequently recovered, but the authorities have not considered this aspect but simply passed the order impugned, that since the petitioner did not rejoin the duty, he was declared as deserter and therefore dismissed from service. 9. Inasmuch the authorities have not considered the documents furnished along with the application of the petitioner dated 29.10.2001, the order impugned cannot be said to be valid. Therefore, it is liable to be set aside and is accordingly set aside. The authorities are directed to consider the application of the petitioner and also the documents furnished along with the said application and pass orders as to whether he can be considered as a deserter or whether he is a person, who should be considered as discharged from Army. The authorities are directed to consider the application of the petitioner and also the documents furnished along with the said application and pass orders as to whether he can be considered as a deserter or whether he is a person, who should be considered as discharged from Army. The authorities shall pass orders on the application of the petitioner within a period of two months from the date of receipt of copy of this order. 10. With the above direction, this Writ Petition is disposed of. No costs.