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2003 DIGILAW 6 (HP)

VIDYA DEVI v. UNION OF INDIA

2003-01-07

A.K.GOEL, M.R.VERMA

body2003
JUDGMENT Arun Kumar Goel, J. - Admitted facts of this case are that husband of the petitioner, Puran Bahadur Thapa was enrolled in 4th Gorkha Rifles on 10.12.1971. After successfully completing his basic technical training, he was posted in 3/4th Gorkha Rifles on 15.9.1972. During the course of his service, he was posted in 14th Infantary Division, Dehradun. On 11.6.1985, he was reverted back to 3/4th Gorkha Rifles. After this date, he did not either report for duty or is traceable till date. 2. In the aforesaid background, since husband of the petitioner was absent, action was taken against him under Sections 38 and 106 of the Army Act. While initiating action against Puran Bahadur Thapa, statement of CHM Baldev Singh was recorded as is evident from Annexure R-1. Thus, he was declared as deserter in October, 1985 and was dismissed in absentia on 11.6.1988. Thereafter on 31.1.1993, he was declared missing instead of being a deserter. 3. Again, this entry of declaring the husband of the petitioner as missing was reversed on 7.5.1994 and he was again declared as deserter. Whether he was declared deserter in 1994 rightly or not, will be a question to be determined in this case. At the same time, it needs to be decided as to whether at all in the facts and circumstances of this case; said Puran Bahadur Thapa could be declared as deserter either in first instance i.e. in 1988 or in the second instance in the year 1994. 4. When the petitioner did not hear anything about her husband, she started corresponding with the Army Authorities through respondent No. 5. After reversion of the entry from deserter to missing, petitioner was admittedly asked by Army Authorities through respondent No. 4 to fill in the documents sent by them to her so that they may further proceed in the matter. Needful was done by her. However, instead of proceeding further by granting family pension etc., husband of petitioner was again declared deserter. The amount that was due and payable to the husband of the petitioner was paid to her. 5. After having unsuccessfully corresponded with Army Authorities for grant of family pension, petitioner addressed a communication to Honble the Chief Justice of this Court for seeking appropriate relief. This was taken up on judicial side and was treated as writ petition. Notice was issued to respondents. 5. After having unsuccessfully corresponded with Army Authorities for grant of family pension, petitioner addressed a communication to Honble the Chief Justice of this Court for seeking appropriate relief. This was taken up on judicial side and was treated as writ petition. Notice was issued to respondents. Writ petition was admitted on 30.7.1996. Parties have filed their pleadings. 6. Stand of respondents No. 1 to 4 is that husband of the petitioner having remained absent without authority when he was reverted to 3/4th Gorkha Rifles Unit and having not joined, as such, after expiry of 30 days of the period of his absence, action was initiated under Section 38 read with Section 106 of the Army Act and the relevant Rules framed there under. And thereafter finally he was declared as deserter. However, this entry was altered to missing and after this mistake was detected, entry of deserter was restored. Thus, according to respondent’s No. 1 to 4, Puran Bahadur Thapa having not completed 15 years of service, petitioner was not entitled for grant of family pension. Their further stand is that the writ petition is wholly misconceived, as according to them, officer who sent the papers for completion to the petitioner for grant of family pension had committed a bona fide error, as such, entry was rightly reverted. 7. So far respondent No. 5 is concerned, it has by and large admitted facts stated by the petitioner who has pleaded at the same time that no relief has been claimed against it, therefore, it prayed for dismissal of the writ petition. 8. On the other hand, stand of respondent No. 6 in reply to paras 5 and 12 of the writ petition which has bearing on the decision is as under:- "Para 5: Requires no comments from the replying respondent. It is, however, submitted that a confidential reference dated 11.7.1985 was received in the office of the SP/Chamba from the commanding Officer, 3/4 GR (chindits) C/o 56 APO to apprehend No. 5340986 K Puran Bahadur (Husband of the petitioner) who has been declared as a deserter. All out efforts have been made to locate the said deserter but to no avail. Para 12 : In reply to this para it is submitted that no report has ever been lodged with the local police at Chamba by the petitioner regarding missing of her husband. All out efforts have been made to locate the said deserter but to no avail. Para 12 : In reply to this para it is submitted that no report has ever been lodged with the local police at Chamba by the petitioner regarding missing of her husband. It is, however, submitted that a confidential reference dated 11.7.1985 was received in the office of the SP/Chamba from the Commanding Officer 3/4 GR C/o 56 APO, to apprehend No. 5340986 K Puran Bahadur (Husband of the petitioner) declared as a deserter. All out efforts have been made to locate and arrest this deserter but he has not traced so far despite efforts." 9. In the aforesaid background, learned senior Counsel appearing for the petitioner submitted that there is nothing on record produced by respondents No. 1 to 4 to establish that husband of the petitioner did not join at 3/4th Gorkha Rifles Unit with an animus deserendi. Unless this was established beyond any reasonable doubt, respondents are not justified in saying that Puran Bahadur Thapa had deserted the Unit. They have failed to place anything on record that said Puran Bahadur Thapa never intended to join the duty after he was sent back from Dehradun to the Unit, This was required to be proved and material placed-on record to show that it is cogent, reliable and trustworthy. 10. On the other hand, when a reference is made to the stand of respondent No. 6 as extracted hereinabove, it is clear that one confidential letter was received by the Superintendent of Police, Chamba from the Commanding Officer of the Unit to apprehend Puran Bahadur Thapa. It was reported that despite all out efforts having been made to locate the aid person, but without any result. 11. How husband of the petitioner was first proceeded as deserter, then missing and finally again deserter as noted here in above Was required to be established from contemporaneous official record of respondents No. 1 to 4. After the husband of the petitioner having not reported as noted hereinabove, it appears, that except for recording statement of CHM vide Annexure R-1 and making a confidential reference to the Superintendent of Police, Chamba, no other effort was made to locate him or to ascertain whereabouts of the deserter. After the husband of the petitioner having not reported as noted hereinabove, it appears, that except for recording statement of CHM vide Annexure R-1 and making a confidential reference to the Superintendent of Police, Chamba, no other effort was made to locate him or to ascertain whereabouts of the deserter. It is not the case of respondent’s No. 1 to 4 that while going from duty, he had taken away any Government property. There is nothing on record placed by these respondents to show as to what other and further steps were taken by them with a view to either trace or to know the whereabouts of the said army personnel or to have ascertained where he had gone after having been sent back to his Unit from Dehradun. Least that was expected of the respondents was to ascertain what had happened to the husband of the petitioner, under what circumstances and for what reason, he did not join in the 3/4th Gorkha Rifles Unit. Whether he met with an accident or something else happened to him. At the risk of repetition, it may be observed here that except for what is I mentioned above, they chose to sleep over the matter by being I satisfied having declared him as deserter. 12. According to respondent’s No. 1 to 4, requisite number of years having not been put in by Puran Bahadur Thapa, therefore, as per Pension Regulation for the Army 1961, no pension or gratuity or other benefit can be allowed to the petitioner. Though, learned Additional Central Government Standing Counsel fairly stated that discretion vests with the President of India in exceptional cases, in a case like the present one, to grant family pension where dismissal is there. He thus submitted that as and when petitioner takes recourse to this provision of law, matter will be dealt with by the appropriate authority. 13. Arguments in this case were finally heard on 4.12.2002 when following order was passed:- "Arguments have been heard. Judgment reserved. Respondent No. 1 to 4 are directed to produce the original record as to how the case of the petitioner was dealt with after he was declared missing on 31.1.1993 being a deserter on 7.5.1994. 13. Arguments in this case were finally heard on 4.12.2002 when following order was passed:- "Arguments have been heard. Judgment reserved. Respondent No. 1 to 4 are directed to produce the original record as to how the case of the petitioner was dealt with after he was declared missing on 31.1.1993 being a deserter on 7.5.1994. In addition to this, Shri Baldev Singh, learned Additional Central Government Standing Counsel, is further directed to make available the copies of relevant pension rules/regulations framed by the competent authority from time to time governing the present case. He will also place on record any instructions/rules/regulations/orders, if any, issued by the competent authority for relaxation of qualifying service of army personnel so as to enable him to get the pension. The needful will be done by Shri Baldev Singh by or before 21.12.2002. A duly authenticated copy of this order by the Court Secretary will be made available to the learned Counsel for the parties on payment of usual charges." 14. Pursuant to the aforesaid direction, Shri Baldev Singh, learned Additional Central Government Standing Counsel produced the original file for perusal of this Court. He stated, that except the file produced by him, there is nothing on record pertaining to the husband of the petitioner with the Army Authorities. In the file, there is nothing to suggest as to how the entry from missing to deserter was changed. I Rather as affidavit has been filed by Lieutenant M.L. Sharma serving in Records-14, Gorkha Rifles, Sabathoo. According to respondents No. 1 to 4, this entry was wrongly changed from deserter to missing as his case did not confirm to Special Army Order 8/S/85 and Rules were clarified. It was for this reason that the entry was corrected from missing to deserter again. This action on the part of respondents No. 1 to 4 is in conformity with Section 38 of the Army Act. Thus, petitioner is not entitled to any pension. 15. Learned Senior Counsel appearing for the petitioner submitted that petitioner is. entitled to family pension and the action of respondents No. 1 to 4 declaring him as deserter is not in consonance with law. With a view to support this submission, he placed reliance on the Division Bench Judgment of this Court in the case of Smt. Sandhaya Devi Parmar v. Union of India and others, 1997(2) Cur. entitled to family pension and the action of respondents No. 1 to 4 declaring him as deserter is not in consonance with law. With a view to support this submission, he placed reliance on the Division Bench Judgment of this Court in the case of Smt. Sandhaya Devi Parmar v. Union of India and others, 1997(2) Cur. L.J. (HP) 216 : 1997(2) Shim. L.C. 310. Facts of this case are nearer to the facts of the present writ petition. 16. Again, with a view to support the case that husband of the petitioner was not a deserter; he referred to the decision of the Supreme Court of India in the case of Virendra Kumar v. The Chairman, Disciplinary Committee, Bar Council of India and others, AIR 1986 SC 1060. On the basis of this decision, Shri Rajiv Sharma, learned senior Counsel submitted that at best and without conceding, husband of the petitioner can be said to be absent without leave which cannot be taken to be deserter. The absence cannot be said to be with the intention not to come back, therefore, in no case, it can be treated as deemed desertion. 17. In view of the Division Bench Judgment of this Court in the case of Sandhaya Devi Parmar (supra), plea urged by Shri Baldev Singh, learned Additional Central Government Standing Counsel that Puran Bahadur Thapa was rightly declared as deserter and no benefit can be derived by the petitioner from change of the entry from missing to deserter subsequently, does not stand. After having gone through the record which after examination was returned to Shri Baldev Singh, Additional Central Government Standing Counsel when he filed affidavit, we are satisfied that this is not a case where it can be said by being absent without leave, the husband of the petitioner did not intend to revert back to his services. In the present case, respondents No. 1 to 4 did not realise that it Is not only the question of complying with the provisions of law, but it was a matter relating to human life, on which, existence of petitioner and his children is dependent. 18. In addition to this, from 11.61985, said Puran Bahadur Thapa can be presumed to be dead in view of the provisions of Section 108 of the Indian Evidence Act. 18. In addition to this, from 11.61985, said Puran Bahadur Thapa can be presumed to be dead in view of the provisions of Section 108 of the Indian Evidence Act. This aspect of the case has not at all been taken note of by any of the Army Authorities. So far respondent’s No. 5 and 6 are concerned; they have nothing to do in this case. Reason being that except reply to reference made by the Army Authorities to the Police Authorities and the latter having failed to trace said Puran Bahadur Thapa, there is no other inquiry made as per law. A reference to the aforesaid Division Bench Judgment. Of this Court fairly negates all the pleas urged on behalf of respondent’s No. 1 to 4. In these circumstances, we have no hesitation in coming to the conclusion that the stand of the respondents declaring the said army personnel to be a deserter without being anything further done, does not lay. 19. In view of the aforesaid discussion and keeping in view the decision of the Supreme Court of India in the case of Virendra Kumar, supra, we are satisfied that this writ petition deserves to be allowed and is ordered accordingly. 20. Once this conclusion is arrived at, then we have further no hesitation in coming to the conclusion that the petitioner would be entitled to grant of family pension and other benefits admissible under the Army Act, Rules, Pension Regulations, Army Orders/Instructions governing the grant of such pension, as well as in the light of the decision of the Supreme Court of India in the case of S.K. Mastan Bee v. The General Manager, South Central Railway and another, 2002 AIR SCW 4856. 21. We may also notice here that no benefit can be derived on behalf of respondent No. 1 to 4 from the decision of the Supreme Court of India in the case of JC-116244 Ex-Subedar Joginder Singh v. Union of India and others, JT 2001(9) SC 23, which was referred to by Shri Baldev Singh. 22. No other point is urged. 23. 22. No other point is urged. 23. In view of the aforesaid discussion, while allowing this writ petition, it is ordered that respondent No. 1 to 4 will now proceed further in the matter by re-examining the case of the petitioner for grant of family pension and other admissible benefits as per law as well as keeping in view the decision of the Supreme Court of India in the case of S.K. Mastan Bee, (supra) and then to proceed further. This entire exercise will be collected by said respondents by or before 30.4.2003, failing which, petitioner will also be entitled to interest at the rate of 9% per annum on the admissible pension and other benefits with effect from 1.5.2003 till the date of payment on worked out amount to her. Costs on the parties.