R.S.A. No. 3458 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3458 of 2008 (O&M) Date of decision: 21.03.2009 Gurdit Singh ....Appellant Versus The Union of India and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. G.S. Sandhu, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) C.M. No. 10279-C of 2008 This is an application under Section 5 of the Limitation Act for condoning the delay of 21 days in filing the present appeal. For the reasons stated in the application, C.M. is allowed and the delay of 21 days in filing the appeal is condoned. R.S.A. No. 3458 of 2008 This regular second appeal is directed against the judgment and decree dated 1.5.2008 passed by the learned Courts below vide which the suit filed by the plaintiff/appellant for declaration and mandatory injunction stands dismissed. The plaintiff was declared deserter vide order dated 24.10.2000, and removed from service. He was also denied the benefits R.S.A. No. 3458 of 2008 (O&M) -2- of pension etc. being a deserter. The plaintiff claimed that the orders impugned were not communicated to the plaintiff/appellant thus the orders were illegal, unlawful, improper, unjust, unfair and based on no material evidence, therefore, were liable to be set aside. The plaintiff as a consequential relief of continuity of service from alleged date of desertion also sought reinstatement and arrears of salary with compound interest at the rate of 18% per annum. The plaintiff/appellant joined the Indian Army in Sikh L.I. Group of Infantary on 2.8.1978, and after being declared deserter was not taken back in service. The plaintiff claimed that he attended various Army courses and was conferred with high attitude medal with Clasp J.K. and 9 years long service medal. The case set up by the plaintiff was that he proceeded on leave to take care of his ailing wife, but she could not recover during his leave period. He further claimed that during the leave period, he himself suffered paralytic attack and got treatment privately, but could not be cured fully. The plaintiff was taken to the Military Hospital, Bathinda, but was refused to be admitted on the ground that he did not have proper authority letter from his parental unit to get medical treatment from Military Hospital. A letter in this regard was written to the authorities. He further claimed that after some recovery he went to join his duty, but missed the bus. He further claimed that he travelled by private truck where he was forced to consume liquor and he lost his senses and became unconscious. The plaintiff claimed that as he was out of money, he became mentally ill and could not take proper decision. The case set up by the plaintiff was that during this period police went to his house, R.S.A. No. 3458 of 2008 (O&M) -3- but he was not found at home and thus was declared deserter. After contest, the suit was dismissed. The appeal also met with the same fate. The learned Courts below have recorded a concurrent finding of fact that the concocted story of the plaintiff was not supported by any evidence and, thus upheld the order impugned. The learned counsel for the appellant contends that this appeal raises the following substantial questions of law: - “1. Whether the learned Courts below have failed to consider the material evidence, pleadings and admitted facts and, thus, the judgments and decree are not sustainable in law?” 2. Whether the authorities did not follow the proper procedure in declaring the plaintiff/appellant as deserter?” In support of the substantial questions of law, the learned counsel for the appellant contends that once the plaintiff was proved to be sick and thereafter mentally ill, the authorities below committed an error in declaring him a deserter. The important aspect of the matter has been ignored by the learned Courts below and, therefore, judgments and decree passed by the learned Courts below are outcome of non- consideration of material evidence. He further contends that the proper procedure for declaring the plaintiff/appellant a deserter was not followed. On consideration of matter, I do not find any force in the contentions raised by the learned counsel for the appellant. The plaintiff/appellant has failed to produce any evidence to prove his R.S.A. No. 3458 of 2008 (O&M) -4- illness, therefore, the concoted story was rightly disbelieved by the learned Courts below. There is nothing on record nor anything was pointed out to show as to which rule was not followed in declaring the plaintiff as deserter. It is the case of the plaintiff himself that he absented himself from duty, and was not found at his house and his whereabouts were not known. In view of admitted position, appellant was rightly declared as deserter. The learned Courts below have recorded the concurrent finding of fact on appreciation of evidence. The substantial questions of law framed do not arise in this appeal for consideration, and deserve to be answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) March 21, 2009 Judge R.S. R.S.A. No. 3458 of 2008 (O&M) -5-