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Ashok Kumar v. Union Of India & Others - WRIT - A No. 33441 of 1999 [2006] RD-AH 21160 (15 December 2006)


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Civil Misc. Writ Petition No. 33441 of 1999

Ashok Kumar


Union of India & Ors.

Hon'ble Pankaj Mithal,J.

The petitioner has filed the present writ petition challenging the appellate order dated 23.5.1999 and the order of his dismissal dated 19.8.1996.

The petitioner was recruited as a Sepoy in the Indian Army in the year 1993. The petitioner completed his training and served for over two years. He took casual leave of five days in connection with his marriage from 25.5.1996 to 29.5.1996. He failed to resume his duties on the expiry of the leave. He reported on duty on 24th July, 1996. On 14th August 1996 he was served with a charge-sheet and was directed to face the Summary Court Martial. He was charged for 'desertion of service' as he was granted leave from 25th May 1996 29th May 1996 but failed to report back on expiry of the leave and as such had absented himself till he voluntarily surrendered on 24th July 1996. In the Summary Court Martial three prosecution witnesses were examined. Two of the prosecution witnesses stated that the petitioner overstayed by 56 days and  reported back on duty as per surrender certificate (Exhibit L). The petitioner was taken as "Kachha Kaidi". The third prosecution witness stated that a Court of Inquiry was held to investigate the circumstances under the which the petitioner overstayed on leave  and on the basis of the said court of inquiry he was declared a deserter. In the Summary Court Martial the petitioner pleaded guilty and accordingly was awarded punishment of dismissal from service on disciplinary grounds vide order dated 19.8.1996 passed by the Commanding Officer. The petitioner challenged the said order of punishment by filing the writ petition No. 13709 of 1997 but the same was dismissed on the ground of availability of a statutory remedy of an appeal under Section 164 of the Army Act 1950 (hereinafter referred to as the Act). Thereupon the petitioner unsuccessfully preferred an appeal as the same was dismissed by the Chief of the Army Staff vide order dated 23rd May 1999.

In the counter affidavit the respondents have asserted that the petitioner was recruited on 25.2.1994. Earlier to proceeding on five days leave on 24.5.1996, the petitioner had taken casual leave six times in four months. He did not report on duty on the expiry of the leave and unauthorizedly absented himself from 30.5.1996. He was declared deserter w.e.f. 30.5.1996 vide recommendation of the Court of Inquiry dated 10th July 2006. On the said report itself the Commanding Officer made an endorsement of acceptance of the opinion of the Court of Inquiry and directed to apprehend the petitioner. The petitioner thereafter reported on 24th July 1996 and he faced the Summary Court Martial. He pleaded guilty of the charge before the Summary Court Martial.  Finally, the Commanding Officer awarded the punishment of dismissal from service.

Learned counsel for the petitioner has raised only two submissions. First, punishment of dismissal is not warranted on account of overstay on leave as section 39 of the Army Act specifically provides that punishment of three years of rigorous imprisonment in such a case. The petitioner is not a deserter or a deemed deserter, therefore, no punishment could have been imposed upon him by treating him to be a deserter under Section 106 of the Act. The second argument is that the punishment of dismissal from service is grossly disproportionate to the charge of overstay on leave and as such is excessive. The petitioner never pleaded guilty voluntarily but for the assurance that a lenient view would be taken against him.

According to the factual matrix given above the petitioner has been charge-sheeted for deemed desertion of overstaying on leave without permission. The "desertion of service" has not been defied under the Act. In Black's Law Dictionary, the meaning of expression "desertion" in military law is described 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 and 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."

Therefore, the intention to quit the army permanently or to avoid any hazardous duty or important service is essential to constitute desertion.

Section 38 of the Act prescribes for the punishment for committing an offence of desertion and abetting desertion whereas section 39 prescribes for the punishment for absence without leave. Undisputedly the petitioner is not a deserter but has been deemed to be a deserter due to overstay on leave without sanction. Section 106 of the Act provides for the procedure for declaring a person to be a deemed deserter. Section 106 of the Act is quoted below:

"106. Inquiry into absence without leave.- (1) When any person subject to this Act has been absent from his duty without due authority for a period of thirty days a Court of inquiry shall, as soon as practicable, be assembled, and such Court shall, on oath or affirmation administered in the prescribed manner, inquire respecting the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or necessaries; and if satisfied of the fact of such absence without due authority or other sufficient cause, the Court shall declare such absence and the period thereof, and the said deficiency, if any, and the commanding officer of the corps or department to which the person belongs shall enter in the court-martial book of the corps or department a record of the declaration."

In Virendra Kumar Vs. Chief of the Army Staff, New Delhi AIR 1986 SC 1060, the Supreme Court while dealing with a similar case of desertion and overstay on leave and after considering the above dictionary meaning observed that a person is guilty of the offence of absence without leave when he is voluntarily absent without authority and when he so absents himself with the intent either to quit the service altogether or to avoid some particular duty he is guilty of desertion. Thus, intention to quit service or to avoid duty is a paramount consideration for holding a person to be a 'deserter'. The Court of inquiry has neither recorded any finding nor has referred to any material, which would have justified the intention on part of the petitioner to permanently quit the service or to avoid any hazardous or important duty. In the absence of such material or finding, the Court of inquiry went wrong in declaring the petitioner to be a deserter within the meaning of Section 106 of the Act.

In Daya Shankar Tiwari Vs. Chief of the Army Staff, New Delhi 2002 (3) AWC 2142, this Court observed that Section 106 of the Act provides that where a person is absent without leave, a Court of inquiry is to be held before reaching to any conclusion and it necessary for the authorities to at least give a notice to such a person before declaring him to be a deemed deserter.

A Court of inquiry which is held under Rule 177 of the Army Rules, 1954 is nothing but a fact finding inquiry. It is held for the purposes of collecting evidence for the purposes of trial.

There is nothing on record that the petitioner was given any notice or any opportunity of hearing before declaring him to be a deserter as aforesaid by the Court of inquiry. Apparently, the petitioner has not participated in the proceedings before the Court of inquiry. The finding of the Court of inquiry and its report (Annexure CA-1) does not contain anything to indicate that the petitioner was given any notice or was heard. There is no whisper about any material on the basis of which the Court recorded its satisfaction that the overstay on leave by the petitioner amounts to desertion of service.

In view of the two reasons the Court finds that the recommendation of the Court of inquiry and the order accepting the same and treating the petitioner as a deemed deserter is apparently bad on the face of the record. Therefore, this Court has no hesitation to hold that the petitioner was not a deserter or a deemed deserter and as such no punishment could have been imposed upon him by treating him to be a 'deserter'. The petitioner in such circumstances could have been punished only for misconduct of overstaying on leave without due sanction. Accordingly, the impugned orders dated 23.5.1999 and 19.8.1996 are quashed with liberty to the respondents to proceed in accordance with law and to impose punishment, if necessary, for overstaying on leave.

The writ petition is allowed.  No order as to costs.

Dt. 15.12.2006



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