Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1279 (GAU)

Sikan Dewry v. Union of India

2017-09-12

A.K.GOSWAMI

body2017
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. K. Sarma, learned counsel for the petitioner. Also heard Mr. M. Phukan, learned Central Government counsel, appearing for the respondents. Dhereswar Deori, the husband of the petitioner was recruited as a Rifleman in the Assam Rifles Organization on 29.07.1989. The husband of the petitioner died on 24.8.02. 2. By this application, the petitioner, who was a young lady of about 21 years at the time of death of her husband with a girl child, has approached this Court for setting aside and quashing an order dated 01.11.2001 by which the husband of the petitioner was declared to be a deserter and for payment of family pension to her. Till 01.11.2001, the husband of the petitioner served the Assam Rifles for about 12(twelve) years 3(three) months. 3. The case of the petitioner is that her husband was suspected to be suffering from cancer of rectum from March, 2000 and he was admitted to Unit Hospital, 5 Assam Rifles and was then referred to the Air Force Hospital at Jorhat. Thereafter, he was referred to Command Hospital at Calcutta. He was referred to Army Hospital (Research & Referral) at Delhi in the month of May, 2000, where his diagnosis was confirmed. In the said Hospital, he was treated for long 6(six) months and thereafter, was granted leave for 4(four) weeks' in the month of November, 2000 with an advice to report for review after expiry of leave of 4(four) weeks in the Army Hospital, Delhi. The husband of the petitioner was bedridden and was unable to report, as advised. 4. 2(two) affidavits had been filed in the writ petition by the respondents by the same deponent, i.e. Major Onkar Chand: one on 19.06.2009 and the other on 25.01.2010. In the affidavit filed on 19.06.2009, it is pointed out that the husband of the petitioner was found absent without any authority from 01.11.2001 and a Court of Inquiry was conducted in terms of Section 106 of the Army Act, 1950 and he was declared to be a deserter w.e.f. 01.11.2001 and accordingly, the name of the husband of the petitioner was struck off from the unit strength. It is also pleaded that as he was declared a deserter, his past service was forfeited. The dues amounting to Rs. 1,40,815/- being credit for Individual Running Ledger Account (IRLA), GPF and balance amount of Rs. It is also pleaded that as he was declared a deserter, his past service was forfeited. The dues amounting to Rs. 1,40,815/- being credit for Individual Running Ledger Account (IRLA), GPF and balance amount of Rs. 35,347/- was paid to the petitioner. Further plea taken is that there is no provision in the Central Civil Services (Pension) Rules, 1972 (for short, "1972 Rules") for grant of pensionary benefits to a deserter or to his next of kin and, therefore, the petitioner is not entitled to family pension. In the affidavit that was filed on 25.01.2010, it is stated that there is a discrepancy with regard to the place where the husband of the petitioner died as in the death certificate dated 27.06.2003 issued by Ghagrapar Police Station, it was stated that he died at village Boral Kuchi while he was staying with his father-in-law, in the Indemnity Bond dated 18.06.2003, it was mentioned that he died at his own residence at Village Naktipara. It is averred that the petitioner's husband had resided in the residence of his father-in-law to avoid arrest and the father of the petitioner was harbouring a deserter. Reliance is placed on Rule 24 of the 1972 Rules to contend that past service of the petitioner has been forfeited and on Rule 48-A of the 1972 Rules to emphasise that the husband of the petitioner had not completed 20(twenty) years of qualifying service. It is also stated that in the sheet-roll of the petitioner's husband, there is no record of his hospital admission/discharge, transfer and as such, it implies that he was not admitted to any hospital. Doubt is also expressed on Annexure-2 of the writ petition. 5. Mr. K. Sarma, learned counsel for the petitioner submits that it has not been disputed by the respondents that the husband of the petitioner died on 24.08.2002. The Army authorities had also paid other dues, save and except, pension to the petitioner. He submits that it is unfortunate that a stand is taken in the affidavit expressing doubt about Annexure-2 when the husband of the petitioner had died of cancer. If the authorities had not maintained their records including sheet-roll properly, the petitioner cannot be penalised. The learned counsel has also placed before the Court a photocopy of the hand written document from which Annexure-2 has been typed out. If the authorities had not maintained their records including sheet-roll properly, the petitioner cannot be penalised. The learned counsel has also placed before the Court a photocopy of the hand written document from which Annexure-2 has been typed out. He submits that no effort is made by the respondents to locate the records regarding admission of the petitioner in the Air Force Hospital, Jorhat, Command Hospital, Calcutta and Army Hospital (Research & Referral), Delhi and an omnibus statement is made to project as if the husband of the petitioner did not suffer from any disease. He also contends that the husband of the petitioner was not a deserter as he did not flee away from any assigned duty but was compelled, perforce of circumstances, to remain at home having suffered from cancer of rectum. He has also argued that Annexure-R-4 dated 27.8.2002 of the affidavit dated 25.01.2010, wherein it is recorded that the husband of the petitioner was declared a deserter, was not communicated to the petitioner and there is no document on record also to suggest despatch of the same to the petitioner and by the time, the aforesaid order was passed on 27.08.2002, the husband of the petitioner was no more. The learned counsel submits that the petitioner will be entitled to family pension in terms of Rule 54 of the 1972 Rules. He has placed reliance on a judgment of the Supreme Court in the case of Capt. Virendra Kumar through his wife Vs. Chief of the Army Staff, New Delhi, reported in (1986) 2 SCC 217 . 6. Mr. M. Phukan, learned Central Government counsel submits that if this Court holds that the husband of the petitioner was not a deserter then Rule 54 of the 1972 Rules will come into play and the petitioner will be entitled to family pension. However, he seriously contends that the petitioner was a deserter and if the finding recorded by the authorities that the husband of the petitioner was a deserter is not interfered with, the petitioner will not be entitled to any pension in terms of Rule 24 as well as in terms of Rule 48 of the 1972 Rules. In tune with the stand taken in the affidavits, he has submitted that as the sheet-roll of the petitioner did not contain any reference to admission/hospitalisation etc. In tune with the stand taken in the affidavits, he has submitted that as the sheet-roll of the petitioner did not contain any reference to admission/hospitalisation etc. it is extremely doubtful as to whether the husband of the petitioner had suffered from any disease. 7. I have considered the submissions advanced by the learned counsel appearing for the parties and have also perused the materials on record. 8. Annexure-2, which is part of Paragraph-4 of the writ petition, is extracted herein below for a ready reference:- "Confidential Unit Hospital 5 Assam Rifles Medical Case Sheet 1. Name:-D.S. Dewry, 28 yrs. 2. Service No. :-153820 3. Rank:-RFN 4. Unit/Ship:- 5 Assam Rifles 5. Army/Corps/Branch/Trad :- 6. Service:-11 years 7. Diagnosis:- Carcinoma Rectum This soldier serving in 15-AR is a case of Ca-Rectum. He reported his unit hosp. 15-AR with C/o-bleeding P/R in March 2000 from where he was referred to 5 - Air Force Hospital, Jorhat in April 2000 after eight days he was referred to command hosp. Calcutta from there in May 2000 the patient was referred to Army hospital (Research & Referral) Delhi where his diagnosis of Ca-Rectum was confirmed. He was admitted and was given time up to Nov. 2000 and was sent on sick leave for 04 weeks with advise to report for review after expiry of sick leave. The patient did not follow advice & reported to unit Hosp. 5-AR on 06th March, 2001 for admission with c/o. extreme weakness. His unit (15AR) was informed. O/E Afebaile GE-MAD W/s Ps-MAD P/A soft. B.P. 110/80 P.R. 78/min Mo organomegaly The patient is referred to Army Hospital (Research & Referral) Delhi for review. Sd/- illegible 13.03.01" 9. Significantly, it is to be noticed that in the first affidavit that was filed on 19.06.2009, the respondents had not at all adverted to the case of the petitioner that her husband was suffering from cancer though had craved leave to file an additional affidavit in future. The averments made in Paragraph-4 of the writ petition was traversed in Paragraph-11 of the affidavit dated 25.01.2010. The same reads as follows:- "11. That with regard to the statements made in paragraphs 4 and 5 of the Writ Petition, the deponent begs to state that the allegations levelled by the writ petitioner is incorrect and hereby denied. The averments made in Paragraph-4 of the writ petition was traversed in Paragraph-11 of the affidavit dated 25.01.2010. The same reads as follows:- "11. That with regard to the statements made in paragraphs 4 and 5 of the Writ Petition, the deponent begs to state that the allegations levelled by the writ petitioner is incorrect and hereby denied. The deponent further begs to state that if an individual is admitted in any hospital, transfer and discharge, same are to be notified in Unit Part-II Orders and subsequently recorded in the sheet roll of a soldier. In the instance case, it is further submitted that in the sheet roll of the petitioner's husband there is no record of his hospital admission/discharge, transfer and as such the same implies that he was not admitted in any hospital. Moreover, the annexure-2 has not been signed by any medical officer, therefore, the veracity of the medical certificate may be subject to the strictest proof before this Hon'ble Court." 10. A bare perusal of the averments made therein would go to show that no enquiry whatsoever was made with the 3(three) hospitals that was referred to in Annexure-2 of the writ petition to ascertain as to whether in reality the husband of the petitioner had been admitted and/or referred. Without making any such enquiry doubt is sought to be cast on Annexure-2 on the ground that description of his sickness, referral, hospitalisation etc., that is supposed to be incorporated in the sheet-roll, was not incorporated. With all the resources at their command, by making suitable enquiry, the respondents could have demonstrated with authority and certainty that the husband of the petitioner never suffered from any disease and Annexure-2 is a manufactured document. The respondents have not disputed that the petitioner's husband did not die on 24.08.2012. In the circumstances, I am of the considered opinion that Annexure-2 cannot be discarded. The petitioner has produced whatever medical document is available with her. 11. Annexure-4 of the affidavit that was filed on 25.01.2010 goes to show that the name of Dhereswar Deori was Struck-off from Strength/Struck-off from Ration Strength w.e.f. the same date the individual was declared as deserter, i.e. w.e.f. 01.11.2001 (FN). The order is dated 27.08.2002 and signed by Major Adj. for Commandant, 15 Assam Rifles. 11. Annexure-4 of the affidavit that was filed on 25.01.2010 goes to show that the name of Dhereswar Deori was Struck-off from Strength/Struck-off from Ration Strength w.e.f. the same date the individual was declared as deserter, i.e. w.e.f. 01.11.2001 (FN). The order is dated 27.08.2002 and signed by Major Adj. for Commandant, 15 Assam Rifles. The respondents have not produced record of any Court of Inquiry, though stated that a Court of Inquiry under Section 106 of the Army Act, 1950 was conducted. On a pointed query, Mr. Phukan concedes that Annexure-R-4 does not show that the same was issued in relation to any Court of Inquiry proceeding. 12. Rule 24 of the 1970 Rules provides that dismissal or removal of a Government servant from a service or post entails forfeiture of his past service. Rule 48-A is on the subject of retirement on completion of 20 (twenty) years' qualifying service. In the facts of the case, the aforesaid provisions are not at all attracted. 13. The word "deserter" is not a defined expression under the Army Act, 1950. Section 38 of the Army Act, 1950, however, uses the expression "desertion" and "aiding desertion" as offences. Section 39 deals with offences of absence without leave. Section 105 provides for capture of deserters. Section 106 provides for an inquiry into absence without leave and deeming of a person as a deserter if the person declared absent does not afterwards surrender or is not apprehended. 14. In the Black's Law Dictionary, 5th Edition, "desertion" in Military Law is stated as follows:- "Military law. Any member of the armed forces who - (1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently; (2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or (3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another one of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States; is guilty of desertion. Code of Military Justice, 10 U.S.C.A. 885." 15. In the case of Capt. Virendra Kumar (supra), the Supreme Court in Paragraph-13 had held thus:- "13. Code of Military Justice, 10 U.S.C.A. 885." 15. In the case of Capt. Virendra Kumar (supra), the Supreme Court in Paragraph-13 had held thus:- "13. As we mentioned earlier neither the expression 'deserter' nor the expression 'desertion' is defined in the Army Act. However we find paragraph 418 of the Artillery Records Instructions, 1981 refers to the distinction between desertion and absence without leave. It says: '418. A person is guilty of the offence of absence without leave when he is voluntarily absent without authority from the place where he knows, or ought to know, that his duty requires him to be. If, when he so absented himself, he intended either to quit the service altogether or to avoid some particular duty for which he would be required, he is guilty of desertion. Therefore, the distinction between desertion and absence without leave consists in the intention. (AO 159/72). When a soldier absents himself without due authority or deserts the service, it is imperative that prompt and correct action is taken to avoid complication sat a later stage." 16. The notes appended to Section 38 of the Army Act, 1950 were also referred to and the same read as follows:- "2. Sub-section (1)-Desertion is distinguished from absence without leave under AA Section 39, in that desertion or attempt to desert the service implies an intention on the part of the accused either (a) never to return to the service or (b) to avoid some important military duty (commonly known as constructive desertion) e.g., service in a forward area, embarkation for foreign service or service in aid of the civil power and not merely some routine duty or duty only applicable to the accused like a fire piquet duty. A charge under this section cannot lie unless it appears from the evidence that one or other such intention existed; further, it is sufficient if the intention in (a) above was formed at the time during the period of absence and not necessarily at the time when the accused first absented himself from unit/duty station. 3. A person may be a deserter although he re-enrolls himself, or although in the first instance his absence was legal (e.g. authorised by leave), the criterion being the same, viz., whether the intention required for desertion can properly be inferred from the evidence available (the surrounding facts and the circumstances of the case). 4. 3. A person may be a deserter although he re-enrolls himself, or although in the first instance his absence was legal (e.g. authorised by leave), the criterion being the same, viz., whether the intention required for desertion can properly be inferred from the evidence available (the surrounding facts and the circumstances of the case). 4. Intention to desert may be inferred from a long absence, wearing of disguise, distance from the duty station and the manner of termination of absence e.g., apprehension but such facts though relevant are only prima facie, and not conclusive, evidence of such intention. Similarly the fact that an accused has been declared an absentee under AA Section 106 is not by itself a deciding factor if other evidence suggests the contrary." 17. In Paragraph-14 of Capt. Virendra Kumar (supra), it was observed by the Supreme Court as follows:- "14. As we mentioned earlier, the Army Act makes a pointed distinction between 'Desertion' and 'Absence without leave simpliciter'. 'Absence without leave' may be desertion if accompanied by the necessary animus deserendi' or deemed to be desertion if the Court of Inquiry makes the declaration of absence prescribed by Section 106 after following the procedure laid down and the person declared absent had neither surrendered nor been arrested." 18. How and under what circumstances, the husband of the petitioner came to reside in his father-in-law's residence or his own residence is not very clear. Even if there is any discrepancy with regard to place of death: whether in his own house or in the house of his father-in-law, the same will not be very material as death itself is not disputed. It is also very striking to note that the respondents disbursed all benefits except pension to the petitioner only on production of a certificate of the Officer-in-Charge of a Police Station. No death certificate was produced by the petitioner. The fact that the respondents were satisfied with production of a death certificate issued by a Police Station for the purpose of grant of benefits on account of death of the husband of the petitioner seems to indicate that the respondents were aware of the medical condition of the petitioner, as otherwise it would have been highly unlikely that they would have disbursed benefits to the family member of a deserter without production of a valid death certificate. In absence of any material produced by the respondents to demonstrate the basis on which the husband of the petitioner was held to be deserter, it will be difficult to hold that petitioner had an intention to voluntarily desert the force. This Court is persuaded to take a view that absence of the husband of the petitioner for the period from 01.11.2001 to 24.08.2002, at best, is a case of un-authorised absence, which was occasioned by a terminal disease like cancer. 19. Taking that view, the finding recorded that the petitioner's husband was a deserter is set aside. With the setting aside of the aforesaid finding, the petitioner will be entitled to family pension, entitlement of which is also otherwise not disputed by Mr. Phukan. The respondents are directed to make payment of family pension expeditiously as long 15(fifteen) years have already gone by. With the above observations and directions, the writ petition stands allowed. No cost.