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2007 DIGILAW 954 (PAT)

Lakshmi Narain Singh v. Union Of India

2007-05-16

AJAY KUMAR TRIPATHI

body2007
Judgment 1. Heard counsel for the parties. 2. Petitioner was a Sepoy in the Indian Army. He was enrolled in the Army Medical Core on 6th August, 1983. He worked as such under various postings and was granted leave on 10th April, 1996 for 32 days of annual leave. This leave was to expire on 11th May 1996. He did not report for duty after expiry of the said leave. Subsequently, it seems a Court of Enquiry as envisaged under Sec. 106 of the Army Act was held and the petitioner was declared a Deserter. Subsequently, by communication contained in Annexure-1 dated 11.11.2003 petitioners wife was informed that in view of the order declaring the petitioner to be a deserter nothing more can be done in this regard, however, the authorities forwarded all the amounts which accrued to him on final settlement of account which was carried out by the respondents. Documents were forwarded for acceptance of this amount as full and final settlement from the records it emerges that the same was accepted by the wife of the petitioner. Now after receiving all the payments as indicated in Annexure-1 the petitioner has filed the present writ application challenging his termination from service. 3. From the averments made by the petitioner the evidence on records it seems that the petitioner contacted "DISSIMINATED EXZIMATOID DERMATIS" disease during the course of the service. He was treated for the same in Military Hospital but it seems that he did not get the required relief: In the year 1995 on grant of 32 days annual leave he came home and never reported back to the authorities. The respondents for good nine years have no information about the petitioner as such. Petitioner states in the writ application that he was busy obtaining treatment from a private Doctor at Patna and he has got evidence in this regard in support of such contention. This Court does not disbelieve the basic fact which has been stated by the petitioner. Petitioner was compelled to obtain treatment as he did not get much relief earlier while being treated in the Military Hospital. This is the circumstances under which he was not in a position to join the Army. Petitioner even today is not physically in a condition to shoulder any responsibility or duty due to the above ailment. His condition as indicated above never improved. 4. This is the circumstances under which he was not in a position to join the Army. Petitioner even today is not physically in a condition to shoulder any responsibility or duty due to the above ailment. His condition as indicated above never improved. 4. Respondents have filed a counter affidavit and they have stated that when the petitioner did not show up after expiry of his annual leave an apprehension roll was issued against him since the petitioner could not be contacted or arrested proceedings were initiated under Section 106 of the Army Act and the petitioner was declared deserter. The authorities subsequently in the given facts had to dismiss the petitioner from service. 5. Counsel for the petitioner initially took a stand that no proceeding was initiated under Sec. 106 of the Army Act and, therefore, all subsequent orders passed against him have no meaning. Counsel for the petitioner further states that if a proceeding under Sec. 106 is not conducted in terms of the provisions of the Section then the proceeding is not a proceeding under the eye of law. In this regard he relies on a decision rendered by a Bench of this Court in the case of Smt. Meera Devi vs. Union of India, 2000(4) PLJR 228 . In that case a Court of Enquiry was held within 30 days of over stayal and the Court interfered with the decision declaring the act of the respondents to be in conflict with the Statute. From perusal of the records of this case one thing which emerges is that petitioner was on annual leave with effect from 10th April, 1996 to 11th May, 1996. In terms of the communication brought on record dated 11th November, 2003 contained in Annexure-1 petitioner was declared deserter with effect from 12th May, 1996. The respondents in their counter affidavit do not categorically assert as to when the Court of Enquiry was constituted and held against the petitioner. From what has been annexed in the counter affidavit specially Annexure-D it only shows that an apprehension roll for arrest of the petitioner was issued vide 18th May, 1996. The respondents in their counter affidavit do not categorically assert as to when the Court of Enquiry was constituted and held against the petitioner. From what has been annexed in the counter affidavit specially Annexure-D it only shows that an apprehension roll for arrest of the petitioner was issued vide 18th May, 1996. In absence of a categorical assertion on behalf of the respondents with regard to holding of a Court of Enquiry under Sec. 106 of the Army Act read with Rule 183 of the Army Rules, it is very difficult for this Court to hold that the action of the respondents was inconformity with the law. It was duty of the respondents to satisfy this Court that whatever proceedings they had initiated under the powers which have been granted to them under the Act is inconformity with the Act and the Rules. Failure to do so will only entail benefits to the petitioner and not to the respondents. 6. Keeping in mind the decision of this court rendered in the case of Smt. Meera Devi (supra) and in absence of categorical assertion made on behalf of the respondents about holding of the Court of Enquiry in terms of Sec. 106 read with Rule 183 it seems that this Court has no option but to hold that the dismissal of the petitioner was not inconformity with the law. Mere fact that the wife of the petitioner has accepted certain amount as full and final settlement, will not come in the way of the fact that the termination of the petitioner to that extent was an illegal order. At the most this settlement of account if has already taken place will be taken into consideration while working out liability by virtue of the fact that this Court is of the opinion that the order of termination of the petitioner was not in accordance with law. If termination order is held to be bad then the consequences will have to follow in favour of the petitioner. 7. Petitioner informs the Court that he has reached the age of superannuation. If that be so then the respondents are directed to treat the petitioner to be in service for the purposes and benefit of granting pension to him. If termination order is held to be bad then the consequences will have to follow in favour of the petitioner. 7. Petitioner informs the Court that he has reached the age of superannuation. If that be so then the respondents are directed to treat the petitioner to be in service for the purposes and benefit of granting pension to him. In the given facts and circumstances of the case the petitioner cannot be allowed to claim benefit of salary and wages for the perio he has not worked under the respondents. It is hoped and expected that the respondents shall work out the retiral dues of the petitioner and pay the same within a period of six months from the date of communication or production of a copy of the order. 8. This writ application stands allowed.