Army No.3387616 Ex Sep Bache Singh vs Union Of India And Others
2023 Latest Caselaw 2585 UK

    IN THE HIGH COURT OF UTTARAKHAND
               AT NAINITAL

          HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                             AND
           HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI


                      01ST SEPTEMBER, 2023

        WRIT PETITION (S/B) No. 626 OF 2022

Army No.3387616 Ex Sep Bache Singh.
                                                               ...Petitioner

                                Versus

Union of India and others.
                                                           ...Respondents

Counsel for the petitioner. : Mr. Shakti Singh, learned counsel holding brief of Ms. Deepa Arya, learned counsel.

Counsel for the respondents. : Mr. Chandra Prakash, learned counsel holding brief of Mr. Karan Anand, learned Standing Counsel for the Union of India.

ORDER : (per Sri Vipin Sanghi, C.J.)

MCC/2/2023

The petitioner has preferred the present

application to seek recall of our order dated 15.11.2022,

whereby we had dismissed the Writ Petition on the

ground that, against the order dated 16.11.2021 passed

by the Armed Forces Tribunal, Regional Bench, Lucknow

in Original Application No. 182 of 2021, the petitioner

has a remedy by way of a statutory appeal before the Supreme Court under Section 30 read with Section 31 of

the Armed Forces Tribunal Act, 2007.

2. Pertinently, the petitioner had withdrawn the

Writ Petition on the said date. First and foremost, on

that account, in our view, this application is not

maintainable. Secondly, the learned counsel has sought

to place reliance on a judgment of the Supreme Court in

Balkrishna Ram v. Union of India and another,

(2020) 2 SCC 442, wherein the Supreme Court has

held that a Writ Petition, under Article 226 of the

Constitution of India, would be maintainable against an

order passed by the Armed Forces Tribunal. However,

such remedy would be available only when some glaring

illegality committed by the Armed Forces Tribunal, is

brought to the notice of the High Court.

3. In the present case, there is no such glaring

illegality pointed out by the petitioner/ applicant in

respect of the order dated 16.11.2021 passed by the

Armed Forces Tribunal. The petitioner had preferred the

said Original Application to seek reinstatement in

service, or, in the alternate, grant of pension to the

petitioner/ applicant for the service rendered for a period

of 07 years, 05 months, w.e.f. 15.06.1994, which was

the date of discharge.

4. A perusal of the impugned order itself shows

that the petitioner, after being enrolled in the Indian

Army on 15.01.1987, was granted leave to attend the

death ritual of his father, but he did not rejoin his

service on time. Again, in January, 1993, he was

granted two months' leave, but he failed to rejoin his

services, due to his mental illness. He claims that he

recovered in January 1999, and requested the

respondents for reinstatement in service, but he was

discharged from service on 04.04.2004 under Section

20(3) of the Army Act. Thereafter, he preferred the

Original Application before the Armed Forces Tribunal in

the year 2021 after nearly 17 years of his discharge.

The Armed Forces Tribunal rejected the claim of the

petitioner/ applicant by observing as follows :-

"6. The question which requires our consideration in the circumstances mentioned hereinabove is, 'whether the applicant can be reinstated in service or not?

7. In the instant case, if the applicant would have joined his duty voluntarily, then for his absence over and above the period of leave sanctioned, he could have been proceeded only for over staying of leave and not as a deserter. He remained absent after expiry of the leave which cannot be ignored at all. Such a long absence clearly demonstrates that the intention of the applicant was to desert the service.

He absented himself on earlier two occasions but later

on joined his duty. He finally deserted from service wef 04.04.1994 and did not join his duty but only wrote letters for joining.

8. Request of the applicant for joining duty as and when suited him does not wipe off his intention of deserting service. The applicant was provided sufficient opportunity to complete his pensionable service but he is a habitual offender. He has not produced any medical documents to ascertain that he was mentally ill. His Medical Category is SHAPE-1.

9. Primary issue emerging for consideration is whether the absence of the applicant after expiry of the leave granted to him would constitute an offence of desertion under Army Act. Basically, continuous absence of the applicant for such a long time after expiry of the leave granted to him has led to the disciplinary action of dismissal after completion of 10 years from the date of desertion. In this context Section 39 (b) being relevant is reproduced as under:-

"39. Absence without leave.--Any person subject to this Act who commits any of the following offences, that is to say,-

(a) xx xx xx xx

(b) without sufficient cause overstays leave granted to him; or"

10. In this context Section 106 of the Act which mandates an enquiry into the absence without leave before a person is being proceeded for such absence has decisive effect. Section 106 of the Act reads thus:

"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.

(2) If the person declared absent does not afterwards surrender or is not apprehended, he shall, for the purposes of this Act, be deemed to be a deserter."

11. Sub-section (1) of Section 106 states that if the absence from duty without authority continued for a period of 30 days then a Court of Inquiry has to be proceeded with and if the factum of absence without permission or other sufficient cause is proved then the Commanding Officer has to declare any such absence.

Sub-section (2) of the above section which has got much significance in resolving the question posed for consideration states that if the person who has been declared absent under sub-section (1) of the Section does not afterwards surrender or is not apprehended then he 'shall be deemed to be a deserter'. So, declaration of absence after a Court of Inquiry and issue of apprehension roll for his arrest would not make the declared absentee a deserter if he surrenders voluntarily after such declaration or is apprehended. An absentee who afterwards surrenders or is apprehended cannot be considered as a deserter for the simple reason that he had been previously declared as an absentee after a Court of Inquiry conducted over his absence. Once the declared absentee surrenders or is apprehended and he is permitted to join duty, he cannot be proceeded as a deserter. In such contingencies, a declared absentee can be proceeded only for 'absence without leave' under any of the sub-clauses in Section 39 of the Act as applicable to. The whole gamut of the facts and circumstances involved in the case require to be examined and analysed in scrutinising the challenge raised against the order of dismissal passed against the applicant, who, admittedly, remained continuously absent unauthorisedly for a long period after the expiry of the leave granted to him. Leaving the period of his absence, the period of his service excluding non qualifying service is roughly six years and few months only. For his continuous absence for a long time he had advanced a case of his illness and of his treatment by a private Doctor without producing any medical documents.

12. The fact that the accusation over the unauthorised absence of the applicant was imputed under a wrong provision of law cannot be given unmerited consideration. We do not find any circumstance in the case indicative of any prejudice having been caused to the applicant. The explanation

offered for his absence on account of his illness and for non-reporting to the unit is unworthy of any value or merit. The proved facts and circumstances presented in this case would show that he had no justifiable reason or explanation for his absence and the case of illness pleaded by him is totally unreliable.

13. The applicant absented himself from duty thrice during his short period of seven years of service. His absence from duty, that too repeatedly, is not condonable in Army, a disciplined Force. Any leniency shown to such a recalcitrant soldier would lead to indiscipline and demoralising the Force in which discipline and adherence to duty is inviolable. We do not find any merit in the challenge raised by the applicant against dismissal.

14. In view of the above, the Original Application is devoid of merit and deserves to be dismissed. It is accordingly dismissed.

5. A perusal of the aforesaid order shows that

the same is absolutely legal and justified, and the claim

of the petitioner, even on merits, was completely

meritless.

6. For the aforesaid reasons, we are not inclined

to recall our order dated 15.11.2022, since no glaring

illegality is found to exist in the order impugned in the

Writ Petition. The Recall Application is, accordingly,

dismissed.

________________ VIPIN SANGHI, C.J.

_____________________ MANOJ KUMAR TIWARI, J.

Dt: 01ST SEPTEMBER, 2023 Rahul