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Union Of India & Others v. Ashok Kumar, - SPECIAL APPEAL No. 20 of 2007 [2007] RD-AH 516 (9 January 2007)


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C.J.'s Court.

Special  Appeal  No.  20  of  2007.

Union of India and others .......Petitioner


Ashok Kumar .......Respondent.


Counsel for the Appellant : Mr. Ashok Kumar Nigam, Addl. Solicitor General assisted by Mr. Ajoy Bhanot.

Counsel for the respondents : Mr. W.H. Khan & K.N. Rai.

Hon'ble Ajoy Nath Ray, CJ.

Hon'ble Ashok Bhushan, J.

The appeal from the order of the Hon'ble Single Judge dated, the 15th of December, 2006 is hereby taken up and summarily disposed of. His Lordship allowed the writ petition of the respondent before us and set aside the order of his dismissal from Army service.

The facts of the case are largely given in the impugned judgment, but we mention some of those ourselves. The writ petitioner was engaged as a Sepoy in the year 1993. Before the material events occurred he took casual leave six times but returned each time to duty on time. He then took a five day leave from 25.5.1996 to 29.5.1996 for getting married.

This time he did not return. The two days in the month of May elapsed. The whole of June elapsed. During this time his private belongings were collected and he was put on the apprehension roll.

Finally the court of inquiry declared the writ petitioner as a deserter and he was to be court martialled thereafter on that charge.

The Hon'ble Single Judge has placed great reliance on this that before the charge against the writ petitioner of his being a deserter was drawn up, he was not heard. This his Lordship has held to be a material defect entitling the writ petitioner to relief. However, the case of MajorGeneral Inder Jit Kumar Vs. Union of India and others reported at  (1997)7 SCC 1 rules to the contrary. Paragraph 8 of the judgment should be referred to. The law clearly is that at the time of mere drawing up of the charge the person or the personnel in service has not necessarily a right to be heard. However, when the charge is being tried, he has to be heard, and he had been heard in the instant case also.

During proceedings the writ petitioner turned up and simply said that he was guilty and that he had made a mistake. He asked for a second chance, which was denied to him. His first writ was disposed of by relegating him to a departmental appeal, which he filed but without success.

We are not here sitting as a court of appeal over facts found by the Army authorities and assessed by them to be important. If the writ petitioner had been tried merely for overstaying leave, the maximum punishment would have been three years rigorous imprisonment, but even that is higher than a punishment of dismissal. For desertion the maximum punishment is as bad as a death penalty.

It does not appear from the record of the proceedings that the writ petitioner was expressly being charged with deserting any particular duty. There is no statement in the other direction also, i.e., there is no admission on the part of the Army authorities that he was not shirking any particular duty when he expanded his five days leave into 56.

The writ petitioner turned up only after the authorities had decided to try him as a deserter. Letters written prior to that had produced no effect.

In the affidavits it is stated by the appellants that the writ petitioner prolonged the leave for the purpose of avoiding duty. We do not enter into this aspect of the matter as it is neither here nor there, the writ petitioner having accepted the charge that he was a deserter and having thereafter pleaded for a second chance only.

In these circumstances, we do not see how we can legally interfere with the decision given by the employers of the writ petitioner. We are not the Army authorities and it is best to leave their discipline in their hands. The appeal is therefore allowed. The impugned order dated 15.12.2006 is set aside. The writ petition is dismissed. No order as to costs.

Dated 9.1.2007.



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