Bhakta Bahadur Chhetri vs Union Of India & Ors.
2000 Latest Caselaw 175 Del

ORDER

A.K. Sikri, J.

1. Petitioner in this case is chalening his dismissal from service and denial of service pension and other dues to him by the respondents. The averments which are made in the petition are that the petitioner was enrolled in the Indian Army on 5.12.1963 and at the relevant time the petitioner was serving with the Field Repair Workshop. The petitioner applied and was sanctioned the balance of annual leave of 30 days for the year 1980, which was for the period from 3.3.1980 to 7.4.1980. When the petitioner was at his native place in Nepal, his wife fell seriously ill and as he had to attend on her he sent two telegrams to the Military Authorities requesting for the grant of further leave to the petitioner. These telegrams were received by the Military Authorities and he was granted a further leave for 30 days upto 7.5.1980. While the petitioner was at his native place he also fell ill. He had a motorcycle accident in 1974 at Secunderabad, A.P., while he was on his active duty with the respondents. During that accident he had sustained head injury as well as teeth injury. He was hospitalised in the military hospital for 90 days. However, the petitioner was not fully recovered and during his service in Military he used to have occasional spells of epilepsy-type symptoms. When he was at his native place in the month of May, 1980 the petitioner had serious fits of epilepsy and he had to get himself admitted in the Gaddaki Govt. Hospital at Pokhara in Nepal and was treated by Dr. Rishi Kant Adhikari, M.B.B.S. However, he did not recover and his illness rather became more serious. He suffered from giddiness and also developed anaemia. As he did not get response to the treatment in the Govt. Hospital, he started 'desi' treatment in 1985 and continued the same upto 1992. From the 'desi' treatment also the petitioner did not get any relief and as a result he had to get treatment from 6.1.1993 at the All India Institute of Medical Sciences (AIIMS) at New Delhi. The petitioner is not cured still and he is still getting medicines from the AIIMS, New Delhi. Petitioner further states that respondent No. 2 had addressed letter dated 5.8.1993 to the Royal Nepalese Embassy as per which petitioner was given 30 days extra leave on receipt of telegrams which was upto 7.5.1980. However even after the expiry of 30 days, when he did not join, Court of Inquiry was held and the petitioner was declared as deserter w.e.f. 8.5.1980. In view of the Court of Inquiry, petitioner was dismissed from service w.e.f. 31.10.1983. Petitioner thereafter took the matter with various authorities but as his efforts failed, he filed the present writ petition challenging his dismissal on the ground that the same was in violation of Section 106 of the Army Act.

2. In the counter affidavit filed by the respondents, it is mentioned in the counter affidavit that No. 7080947 Ex. Naik Bhakta Bahadur Chhetri. Petitioner was enrolled in the Army on 5th December 1963. While serving with 266 Fd Repair Workshop (851 CMA Workshop) the individual proceeded on 36 days balance of annual leave for the year 1980 w.e.f. 3rd March 1980 to 7th April 1980. On expiry of the said leave he was given advance of annual leave for 30 days for the year 1981 upto 7th May, 1980. The leave was extended on receipt of two telegrams from the petitioner through which he had intimated that his wife was seriously ill. However, the petitioner did not report back to his Unit on expiry of said leave on 8th May, 1980 and over stayed leave without sufficient cause. An apprehension roll to the civil police authorities was issued to apprehend the petitioner and to hand him over to the nearest Military Unit which is annexed hereto as Annexure 'A'. But inspite of all out efforts the petitioner was neither apprehended by Civil Police nor rejoined duty voluntary. Subsequently petitioner was declared deserter by a Court of Inquiry under Army Act Section 106 after clear 30 days of his absence. As the petitioner did not rejoin/apprehended by Civil Police for a period of three years from the date of desertion, petitioner was dismissed from Army Service for desertion w.e.f. 31st October, 1983, under Section 20(3) of Army Act. Though the petitioner had put in 16 years, 5 months and 3 days service, but he is not entitled for service pension, due to his dismissal from service under Section 20(3) of the Army Act. However the petitioner has already been paid the following legitimate dues :-

   (a) Army Group Insurance Maturity benefits Rs. 900.00
  (b) AFPP Fund Balance      Rs. 4597.00

 

3. Some facts are further elaborated in para 7 of the counter affidavit which reads as under :- 
 

  In reply to para 7,it is submitted that the petitioner inspite of extending his leave by his Unit deserted from service w.e.f. 8th May, 1980 

and subsequently he was dismissed from service after completion of 3 years from the date of desertion as per the rules in vogue w.e.f. 31st October, 1983. It is also added that after his desertion no correspondence was received by the Army Authorities from the petitioner. It is also worthwhile to mention hare that the petitioner has not reported back to the Unit deliberately and he will fully remained absent which is seriously offence. He could have in his own interest surrendered to any local Army unit like Gorkha Recruiting Depot, Kunraghat which is at next door to his home station. But the petitioner did not do so and over stayed leave willfully. Hence the contention of the petitioner in this paragraph are false, fabricated and after thought just to mislead the Hon'ble Court.

4. The perusal of the aforesaid facts show that admittedly petitioner's leave was upto 8.5.1980 but he did not join the duties even thereafter. He did not even send any leave application or informed about his whereabouts. The respondents, in these circumstances, had no option but to treat the petitioner as deserter. A Court of Inquiry was held and as a result thereof petitioner was dismissed from service w.e.f. 31.10.1983. Petitioner kept quite even thereafter for a substantial period and the present writ petition is filed only in the year 1998. Merely because of the petitioner was sick or was undergoing treatment as alleged by him is no excuse as petitioner could atleast make application for leave or inform the respondents about his sickness. High standard of disciplines is required in the Army in which the petitioner totally lacked. Moreover the present writ petition has been filed after almost 15 years of his dismissal and therefore suffers from unexplained laches and delays also. The contention that the Court of Inquiry was in violation of Section 106 of the Army Act is also misconceived inasmuch as it is very categorically stated in the counter affidavit that inquiry was held in accordance with Section 106 of the Army Act and but for the bald averment made in the petition, it is not pointed out how provisions of Section 106 of the Army Act are violated. The petition deserves to be dismissed on the ground of, laches and delays as well as on merits. It is accordingly dismissed. Rule is discharged.

5. There shall be no order as to costs.