Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 1490 (GAU)

Smti Baijayanti Bordoloi v. Union of India & Ors.

2015-12-03

UJJAL BHUYAN

body2015
Heard Mr. R. M. Choudhury, learned counsel for the petitioner and Mr. G. Pegu, learned Central Government Counsel, for the respondents. 2. Since the two writ petitions are inter-related, those were heard together and are being disposed of by this common order. 3. Petitioner is the widow of Late Samet Chandra Bordoloi who was a Havildar in the 10th Assam Rifles. 4. While the first writ petition was filed seeking a direction to the respondents to pay all the dues that her husband was entitled to as well as other terminal benefits, in the second writ petition, in addition to the above reliefs, petitioner seeks quashing of order, dated 31.08.2005, passed by the Commandant of 10th Assam Rifles dismissing petitioner's husband from service with effect from 11.05.2005. 5. Petitioner's husband joined Assam Rifles on 16.09.1980. According to the petitioner, her husband availed leave from 04.05.2000 to 09.05.2000. While he was on leave, he was diagnosed as suffering from tuberculosis, which required his treatment. After recovery, petitioner's husband went back to resume duty but was not allowed to resume duty. At that stage, petitioner's husband filed WP(C) No.3565/2002 before this Court seeking a direction to the respondents to allow him to join his duty as Havildar under the Commandant, 10th Assam Rifles. During the pendency of the aforesaid case, petitioner's husband expired on 19.08.2004. Application for substitution was filed by the present petitioner. It may be mentioned that the said writ petition was contested by the Assam Rifles by filing counter affidavit wherein it was stated that on 10.05.2000, petitioner's husband was declared deserter. 6. On 06.06.2007, WP(C) No.3565/2002 was dismissed with the observation that since the petitioner's husband had expired, no order could be passed directing resumption of duty by him. However, present petitioner, being the wife, was given liberty to file appropriate writ petition for financial benefits in accordance with law. 7. It was thereafter that WP(C) No.2907/2009 was filed by the petitioner. In the said proceeding, respondents filed an affidavit on 03.03.2010 wherein it was stated that an order was passed by the Commandant, 10th Assam Rifles, on 31.08.2005 whereby husband of the petitioner was dismissed from service with effect from 11.05.2005. 8. This led to filing of WP(C) No.5759/2010 by the petitioner assailing the legality and validity of the aforesaid order, dated 31.08.2005. 9. Mr. 8. This led to filing of WP(C) No.5759/2010 by the petitioner assailing the legality and validity of the aforesaid order, dated 31.08.2005. 9. Mr. Choudhury, learned counsel for the petitioner, submits that the impugned order, dated 31.08.2005, is wholly untenable in law as well as on facts as the petitioner's husband was dismissed from service when he had already expired. A dead man cannot be dismissed from service. Secondly, dismissal was given retrospective effect from 11.05.2005 though the impugned order was passed on 31.08.2005. He submits that petitioner's husband had rendered valuable service to the Assam Rifles and it was only because of suffering from tuberculosis, which is considered to be a serious ailment in the rural parts of the country, that he could not resume his duty after availing leave. Petitioner's husband had taken leave for the period from 04.05.2000 to 09.05.2000 and was supposed to resume duty on 10.05.2000. For reasons beyond his control, petitioner's husband could not resume duty on 10.05.2000. However, without following any fair procedure, on 10.05.2000 itself, petitioner's husband was declared deserter and five years thereafter, he was dismissed from service, that too, with retrospective effect. This is not the way a soldier should be treated and now an unfortunate widow is before the Court seeking grant of terminal dues of her late husband to enable her to survive. He, therefore, submits that the present is a fit case for interference by this Court. 10. On the other hand, Mr. Pegu, learned Central Govt. Counsel, submits that petitioner's husband was granted leave from 04.05.2000 to 09.05.2000. If he wanted extension of leave on medical grounds, he ought to have informed the authority but he failed to do so. The authority was not informed about the illness of petitioner's husband. Therefore, authority was justified in declaring him a deserter. Even after such declaration, petitioner's husband did not report for duty, which justified his dismissal from service. Therefore, no case for interference is made out. 11. In his reply, Mr. Choudhury vehemently objects to the above contention and submits that petitioner's husband had approached the authorities for resumption of duty but since it was not allowed, he had approached this Court by filing WP(C) No.3565/2002. He further submits that neither declaration of petitioner's husband as deserter nor his dismissal from service is justified. 12. 11. In his reply, Mr. Choudhury vehemently objects to the above contention and submits that petitioner's husband had approached the authorities for resumption of duty but since it was not allowed, he had approached this Court by filing WP(C) No.3565/2002. He further submits that neither declaration of petitioner's husband as deserter nor his dismissal from service is justified. 12. Submissions made by learned counsel for the parties have received the due consideration of the Court. 13. Upon hearing learned counsel for the parties and on perusal of the materials on record, what can be discerned is that petitioner's husband who was a Havildar in the 10th Assam Rifles had availed leave from 04.05.2000 till 09.05.2000 but he did not report back for duty immediately thereafter. According to the petitioner, he could not report back for duty as he was suffering from tuberculosis. According to the respondents, they were not informed either by the petitioner or by her husband about any such illness. Since petitioner's husband had not reported back for duty on 10.05.2000, he was declared as deserter. 14. Petitioner's husband had filed WP(C) No.3565/2002 seeking a direction to the respondents to allow him to resume duty. This writ petition was contested by the Assam Rifles by filing counter affidavit. During pendency of the said writ petition, petitioner's husband expired on 19.08.2004. Application for substitution was filed by the present petitioner. WP(C) No.3565/2002 was dismissed by this Court on 06.06.2007 as the said petitioner (present petitioner's husband) had expired and no direction could be issued for allowing him to rejoin duty. Liberty was granted to the present petitioner to file appropriate writ petition for financial benefits if otherwise permissible. When the present petitioner filed WP(C) No.2907/2009 for financial benefits, respondents filed counter affidavit enclosing therewith the impugned order, dated 31.08.2005, which says that petitioner's husband was dismissed from service with effect from 11.05.2005. These facts are on record and are not in dispute. 15. Before proceeding further, impugned order, dated 31.08.2005, may be referred to. For ready reference, the entire order is quoted hereunder: “OFFICE OF THE COMMANDANT : 10 ASSAM RIFLES C/o. 99 APO ORDER No. Rec/92/2005 Dated 31 Aug, 2005 1. That WHEREAS No 103636F Hav/GD Shamed Chandra Bordoloi who has been declared deserter by the unit with effect from 10 May 2000(FN) and is still absent. 2. For ready reference, the entire order is quoted hereunder: “OFFICE OF THE COMMANDANT : 10 ASSAM RIFLES C/o. 99 APO ORDER No. Rec/92/2005 Dated 31 Aug, 2005 1. That WHEREAS No 103636F Hav/GD Shamed Chandra Bordoloi who has been declared deserter by the unit with effect from 10 May 2000(FN) and is still absent. 2. That after expiry of 30 days of his absence a Court of Inquiry under Section 106 of Army Act, 1950, was convened to investigate into the circumstances under which the above named individual became absent and the said Court of Inquiry declared No.G.103636F Hav/GD Shamed Chandra Bordoloi deemed to be a deserter. 3. That an apprehension roll was also issued in respect of No.G.103636F Hav/GD Shamed Chandra Bordoloi to the Superintendent of Police of the District to which the said individual belongs to apprehend him. But till date individual has not been apprehended/nor he has surrendered to any Army/Assam Rifles authorities and is still absent. A total period of five years has lapsed since his absence. 4. I, therefore, taking into consideration the entire circumstances of the case, am of the considered opinion that further retention of No.G.103636F Hav/GD Shamed Chandra Bordoloi in the Force is not warranted. I, therefore, by virtue of powers vested in me under section 4(1) of Assam Rifles Act, 1941, dismiss No.G.103636F Hav/GD Shamed Chandra Bordoloi from service wef 11 May, 2005 (FN). (A K Gupta) Col. Commandant.” 16. A perusal of the said order would show that a Court of Inquiry was convened to investigate the circumstances relating to absence of petitioner's husband whereafter he was declared as deserter with effect from 10.05.2000. Said order also states that apprehension roll was issued to Superintendent of Police of the district to apprehend petitioner's husband but he could not be apprehended and he remained absent. In view of such absence from duty, the Commandant acting as Disciplinary Authority, passed the impugned order, dated 31.08.2005, dismissing him from service with retrospective effect from 11.05.2005. 17. As already indicated above, in the writ petition filed by the petitioner's husband, i.e., WP(C) No.3565/2002, present petitioner had filed an application on 01.10.2004 seeking substitution following the death of her husband. It was clearly mentioned in the said application, which was registered as Misc. Case No.3022/2004, that her husband had expired on 19.08.2004. 17. As already indicated above, in the writ petition filed by the petitioner's husband, i.e., WP(C) No.3565/2002, present petitioner had filed an application on 01.10.2004 seeking substitution following the death of her husband. It was clearly mentioned in the said application, which was registered as Misc. Case No.3022/2004, that her husband had expired on 19.08.2004. When the said application was filed before this Court certainly, respondents had the knowledge about the death of petitioner's husband on 19.08.2004. Notwithstanding the same, Commandant proceeded to pass the impugned order, dated 31.08.2005. 18. Petitioner has annexed documents to the writ petition which prima facie show that her husband was suffering from tuberculosis and perhaps that explains the reason for his not joining duty on 10.05.2000. What transpired in the Court of Inquiry or what procedure was followed is not known because those have not been produced before the Court either in the form of Annexures to the affidavit filed or the record in original. 19. In so far declaration of petitioner's husband as deserter is concerned, this Court in the case of Dharanidhar Kalita Vs. Union of India, reported in (2015) 2 GLR 732, has explained the distinction between desertion and absence without leave or overstay of leave. That was a case where a Sub-Inspector of Central Reserve Police Force was declared a deserter on account of overstay of leave. It has been held as follows: “31. On a comparison between the two, it is fairly evident that while desertion is a more heinous offence, absence without leave or over-stay of leave without sufficient cause is a less heinous offence. Penal consequences for both the offences are different with former being extremely severe. Therefore, offence of absence without leave or over-stay of leave without sufficient cause cannot be equated with the offence of desertion. For conversion of the offence of absence without leave or over-stay of leave without sufficient cause to the offence of desertion would require something more as the two offences do not stand on the same footing and cannot be equated. For an offence of absence without leave or over-stay of leave without sufficient cause to become an offence of desertion, the authority must come to a definite conclusion that there was intentional or willful absenteeism by the offender disobeying lawful command of the superior authorities. For an offence of absence without leave or over-stay of leave without sufficient cause to become an offence of desertion, the authority must come to a definite conclusion that there was intentional or willful absenteeism by the offender disobeying lawful command of the superior authorities. Just because a member of the Force is absent without leave or over-stays leave without sufficient cause would not automatically lead to the conclusion that he has deserted the Force. As noticed above, something more is required. 32. Coming back to the facts of the present case, the question is whether the petitioner was a deserter. Petitioner was transferred from Agartala to Ranchi on 09.06.2003. Petitioner was granted 45 days earned leave. He was also given 15 (fifteen) days joining time. Petitioner was relieved from his duty at Agartala on 14.07.2003. According to the respondents, he ought to have been joined his duty at Ranchi by 13.09.2003. Instead of joining within the permissible period, petitioner had sent a telegram dated 16.09.2003, informing about his sickness and medical advice for rest. Petitioner had stated that he was suffering from various ailments including Tuberculosis. He had undergone treatment in the Gauhati Medical College Hospital (GMCH) and in the Mohendra Mohan Choudhury Hospital (MMCH) at Guwahati. As per direction of his superior authorities, he had also reported to the CRPF Base Hospital at Guwahati. As he was suffering from Tuberculosis petitioner had to take treatment in the Lokopriya Gopinath Bordoloi Chest Hospital at Guwahati. He had stated that his wife was a severe heart patient and she had also represented before the higher authorities for modification of the transfer order as per the policy of CRPF. A number of representations and telegrams were sent by the petitioner stating that he was undergoing treatment and would rejoin duty on recovery along with fitness certificate. Till the Court of enquiry was constituted petitioner had submitted several applications for extension of leave, but those were not considered. 33. From the above, it is evident that though the petitioner had over-stayed leave granted to him, it cannot be said that such over-stay was without sufficient cause. It is quite evident that petitioner was having medical problems of himself, his wife and his son. As already noticed above, this Court in the previous order had taken the view that because of adverse circumstances, petitioner could not participate in the enquiry proceeding. It is quite evident that petitioner was having medical problems of himself, his wife and his son. As already noticed above, this Court in the previous order had taken the view that because of adverse circumstances, petitioner could not participate in the enquiry proceeding. In fact, his wife, who was a heart patient, had subsequently expired on 30.03.2007, the death certificate of which has been annexed with the additional affidavit of the petitioner. From the documents and applications placed on record, it cannot be said that the petitioner did not want to rejoin the service. The Hon'ble Supreme Court in the case of Captain Virendra Kumar -Vs- Chief of the Army Staff; reported in (1986) 2 SCC 217 , examined the expression desertion vis-à-vis absence without leave in the context of the Army Act, 1950, and held that since every desertion necessarily implies absence without leave, the distinction between desertion and absence without leave must necessarily depend on the animus. If there is animus deserendi, absence would straightway be desertion. 34. While every desertion would necessarily imply absence without leave or over-stay of leave without sufficient cause, the converse may not be true. Any or each and every absence without leave or over-stay of leave without sufficient cause may not ipso facto be desertion. For the latter to be desertion, there must be willful abandonment of duty with intention of never returning. The intention to quit duty permanently is essential to constitute desertion. Thus, animus deserendi, i.e., intention of deserting must be present to hold a member of the Force a deserter. Therefore, the fine but clear distinction between desertion and unauthorized absence must be understood contextually where intention to quit service or to avoid duty is of paramount consideration.” 20. Coming to the facts of the instant case, it is the pleaded case of the petitioner and earlier that of her husband that he had suffered from tuberculosis. Tuberculosis is still considered to be a serious ailment in the rural areas of the country and carries with it some kind of social stigma. These factors were apparently not taken into consideration while declaring petitioner's husband as deserter. Moreover, the fact that petitioner's had approached this Court in the year 2002 seeking a direction to the respondents to allow rejoining of duty would go to show that there was no abandonment of duty with intention of never returning. 21. These factors were apparently not taken into consideration while declaring petitioner's husband as deserter. Moreover, the fact that petitioner's had approached this Court in the year 2002 seeking a direction to the respondents to allow rejoining of duty would go to show that there was no abandonment of duty with intention of never returning. 21. Not to speak of desertion, even in case of unauthorized absence from duty or over-stay of leave, the Hon'ble Supreme Court in Krushnakant B. Parmar Vs. Union of India and another, reported in (2012) 3 SCC 178 , has held that such unauthorized absence from duty or over-stay of leave will not amount to misconduct if it cannot be proved that absence is willful. If the absence is the result of compelling circumstances, such absence cannot be held to be willful. In the present case, petitioner's husband could not rejoin duty as he was inflicted with tuberculosis. Ultimately, he died on 19.08.2004. In a perverse way, this only buttresses the claim of the petitioner and earlier that of her husband that his absence from duty was not willful and deliberate. In the impugned order dated 31.08.2005, it is stated that petitioner's husband had neither been apprehended nor he had surrendered and was still absent. When he had expired, there was no question of being apprehended or surrendering. Dismissing a dead person, that too retrospectively, is clearly untenable and reflects lack of empathy for a dead soldier who had put in about 20 years of service prior to his leave. 22. That being the position, declaration of petitioner's husband as deserter was certainly not justified. Furthermore, dismissing the petitioner's husband from service when he had already expired has virtually amounted to rubbing salt to wound. Such an order besides being wholly unacceptable also suffers from patent illegality for the reasons indicated above as well as on the ground of retrospectivity. 23. In view of the above, both declaration of petitioner's husband Samet Chandra Bordoloi as deserter and his dismissal from service vide order, dated 31.08.2005, are set aside and quashed. He shall be treated to have been in service till his death on 19.08.2004. The period from 04.05.2000 till 19.08.2004 shall be regularized by the authority. Consequently, Smt. Baijayanti Bordoloi widow of Samet Chandra Bordoloi shall be entitled to all consequential benefits due to Late Samet Chandra Bordoloi. He shall be treated to have been in service till his death on 19.08.2004. The period from 04.05.2000 till 19.08.2004 shall be regularized by the authority. Consequently, Smt. Baijayanti Bordoloi widow of Samet Chandra Bordoloi shall be entitled to all consequential benefits due to Late Samet Chandra Bordoloi. All such benefits shall be released to her within a period of three months from the date of receipt of a certified copy of this order. 24. For the pain and agony that a hapless widow had to undergo while pursuing the litigation for all these years, Court is of the view that cost of Rs.25,000/- should be paid to her by the respondents along with the service benefits within the period as indicated above. 25. Writ petition is allowed in the above terms.