IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4374 of 2004 LALOO THAKUR S/o Sri Murari Thakur, resident of village-Mohmadpur, P.S.-Daudnagar, District- Aurangahad. -------------------Petitioner Versus 1. THE UNION OF INDIA through the Chief of the Army Staff, Army Headeuarter, New Delhi 2. The Lieutenant General, General-Officer-Commanding in Chief, Headquarter, Central Command, Lucknow-2 3. The Commandant, The Bihar Regimental Centre, Danapur Cantt.-801503 4. B.D.E. Commander, Headquarter-56 MTN, BDE 5. The Lieutenant Colonel, Administrative Battalion commander for Commandant, B.R.C., Danapur Cantt. Danapur (Bihar) 6. The C.O. First Bihar Regiment, C/o 56 A.P.O. 7. The Company Commander, Ist of Bihar Regiment, C/o 56 A.P.O. -----------Respondents. ---------------------- For the Petitioner:- Mr. C.M.Chaurasia, Adv. For the Respondents Union of India: - Mr. Dudheshwar Singh, Adv. --------------------- 6. 17.01.2011 Heard learned counsel for the petitioner and learned counsel for the respondent Union of India. The petitioner seeks quashing of the order dated 10.3.2000 issued by respondent no. 5 Commandant, B.R.C., Danapur Cantt. Danapur (Annexure-5) after a Summary Court Martial; the further letter dated 6.10.2000 issued by respondent no. 2, Lieutenant General, General-Officer- Commanding in Chief, Headquarter, Central Command, Lucknow (Annexure-9) by which he has 2 rejected the petition filed by the petitioner under Section 164 of the Army Act and also for quashing the letter dated 2.12.2002 issued by the Chief of Army Staff rejecting his application under Section 179 of the Army Act. The facts of this case are not in dispute and lie in a narrow compass. The petitioner was appointed as a Constable in the Army at B.R.O. Gaya (Bihar) on 3.1.1996. During the Kargil war he was posted at border areas of Jammu and Kashmir for “Operation Vijay”. On 3.10.1999 he received certain injuries and was sent for treatment in Leh General Hospital. He remained under treatment from 8.10.1999 till 12.10.1999. He was then sent to Transit Camp under duty. The petitioner claims that he received a letter from his home that his mother was suffering from severe heart ailment. He further claims that due to absence of the appointing authority, namely, C.O., he sought leave from his immediate superior Nayak Polus Lakra for ten days and proceeded for his home on 13.10.1999. Thereafter he claims to have gone to Mumbai for the treatment of his mother from 1.11.1999 to 29.11.1999. The petitioner further claims to have sent application for extension of leave 3 on 25.10.1999 and again on 19.11.1999 to the Company Commander, 1st Bihar Regiment but received no response. Ultimately, he joined his duty on 21.12.1999 at Danapur Centre which was accepted on the same day. The petitioner claims that without adopting the procedure of law of Summary Court Martial and without any opportunity of hearing the petitioner was sent the impugned letter dated 10.3.2000 dismissing him from service. He filed his petition under Section 164 of the Army Act and thereafter under Section 179 and ultimately on rejection of both he has come to this Court. Learned counsel for the petitioner submits that the petitioner‟s case is not covered by Section 38 (i) of the Army Act relating to deserter, rather his case comes under Section 39 (a) and (b) of the said Act relating to absence without leave or over-stay of leave. Learned counsel also submits that in a case of absence without leave an enquiry under Section 106 of the Act has to be held before a person can be considered and deemed to be a deserter but no such enquiry was held at any point of time and thus he could not have been considered a deserter and punished as above. In support of the aforesaid proposition 4 learned counsel relies upon a decision of the Supreme Court in the case of Virendra Kumar Vs. The Chief of the Army Staff, New Delhi: A.I.R.1986 (2) S.C. 1060. He further relies upon another decision rendered by a learned single judge of this Court in the case of Pramod Kumar Vs. The Union of India and Ors.: 1999 (1) PLJR 82, para 8 and 9 which reads as follows:- “8. I fail to appreciate the said submissions of the learned Standing Counsel appearing for the Union of India. The respondents have not brought on record any order declaring the petitioner a deserter. Learned Standing Counsel has failed to point out any provision in the Army Act or the rules framed whereunder a person is to be declared a deserter. In any view of the matter even as per the provision contained in annexure A, a Court of inquiry is to be held in the case of all absentees after 30 days of their absence under Section 106 of the Army Act. It is not the case of the respondents that any such Court of inquiry was ever held against the petitioner for his alleged unauthorized absence beyond thirty days. According to the petitioner, initially he went on leave and thereafter remained unwell about which he communicated to the authority concerned under certificate of posting. This fact however, has been disputed by the learned Standing Counsel.” “9. Be that as it may, the fact remains that no Court of inquiry in terms of Section 106 of the Army Act was ever held as against the petitioner. The petitioner, undisputedly, was permanently employed in the Army and remained absent after his leave. Under such circumstances, the respondents were obliged to hold enquiry into absence without leave after a period of thirty days 5 of his absence in terms of Section 106 of the Army Act. This having not been done, in my opinion the impugned order cannot be sustained and it is, accordingly, quashed.” It is also submitted by learned counsel that it is evident from the various orders that the petitioner was first dismissed and only thereafter the enquiry has been held. It is also the submission of the learned counsel that the petitioner had no intention to desert as he voluntarily surrendered and gave joining at Danapur and thus his case cannot be considered as one of desertion. Learned counsel for the Central Government on the other hand submits that all the necessary procedure of the Summary Court Martial has been followed before the order of dismissal was passed against the petitioner. It is submitted that the petitioner had participated in the Summary Court Martial proceeding which has been clearly stated in the counter affidavit. It is contended by learned counsel that the petitioner was never on leave as in the absence of the Commanding Officer, he ought to have obtained leave from the immediate superior of the commanding officer and there could be no question of any grant or sanction of leave by the Nayak Polus Lakra as no such 6 authority has been conferred upon him. There is further no letter on record nor any specific letter filed by the petitioner for his leave, nor any such record has been found regarding his extension of the so called leave. It is further submitted on behalf of the respondents that the petitioner‟s case has been considered in accordance with law and prescribed procedure by the Summary Court Martial and the authorities under Sections 164 and 179 of the Act. It is urged that the medical certificate issued by Dr. Shabbir S.T. Diwanji of Mumbai does not show that his mother was suffering from any severe ailment except complaint of chest pain; moreover, the certificate shows treatment only for 28 days from 1.11.1999 to 28.11.1999 whereas the petitioner remained absent for nearly 70 days much before and much after the said period of treatment. It is also the contention of learned counsel that the mere fact of voluntary surrender at the Bihar Regiment cannot be held in his favour as he ran away from the posting at the time of war which can be considered as nothing but desertion, being an attempt to keep himself away from being in the battle ground. Before considering the submission of 7 learned counsels for the parties it has to be made clear that this Court in its writ jurisdiction does not sit as a Court of appeal over the decision of the disciplinary authorities. It has only to see whether the decision making process was in accordance with law and not as to whether the actual decision is correct or wrong; more so, in a case which involves the army in which the charge is deserted by an army man during the period of war. The issues raised in the present matter have to be looked at from that angle. It may be useful to quote here from the decision of the Apex Court in Virendra Kumar‟s case (supra), as observed in the last part of Para 12, 13 and 14 which are as follows:- “12. Sections 38 and 39, and Sections 104 and 105 make a clear distinction between „desertion‟ and „absence without leave‟, and Section 106 prescribes the procedure to be followed when a person absent without leave is to be deemed to be deserter. Clearly every absence without leave is not treated as desertion but absence without leave may be deemed to be desertion if the procedure prescribed by Section 106 is followed. Since every desertion necessarily implies absence without leave the distinction between desertion and absence without leave must necessarily depend on the animus. If there is animus deserendi the absence is straightway desertion.” “13. As we mentioned earlier neither the expression „deserter‟ nor the expression „desertion‟ is defined in the Army Act. However we find that 8 paragraph 418 of the Artillery Records Instructions, 1981 refers to the distinction between desertion and absence without leave. It says:- 418. A person is guilty of the offence of absence without leave when he is voluntarily absent without authority from the place where he knows, or ought to know, that his duty requires him to be. If, when he so absented himself, he intended either to quit the service altogether or to avoid some particular duty for which he would be required, he is guilty of desertion. Therefore, the distinction between desertion and absence without leave consists in the intention. (AO 159/72). When a soldier absents himself without due authority or deserts the service, it is imperative that prompt and correct action is taken to avoid complications at a later stage. We also find the following notes appended to the Section 38 of the Army Act in the Manual of the Armed Forces. 2. Sub-Section (1) Desertion is distinguished from absence without leave under AA Section 39, in that desertion or attempt to desert the service implies an intention on the part of the accused either (a) never to return to the service or (b) to avoid some important military duty (commonly known as constructive desertion) e.g., service in a forward area, embarkation for foreign service or service in aid of the civil power and not merely some routine duty or duty only applicable to the accused like a fire picquet duty. A charge under this section cannot lie unless it appears from the evidence that one or other such intention existed; further, it is sufficient if the intention in (a) above was formed at the time during the period of absence and not necessarily at the time when the accused first absented himself from unit duty station. 3. A person may be a deserter although he re-enrols himself, or although in the first instance his absence was legal (e.g. authorized by leave), the 9 criterion being the same, ViZ., whether the intention required for desertion can properly be inferred from the evidence available (the surrounding facts and the circumstances of the case). 4. Intention to desert may be inferred from a long absence, wearing of disguise, distance from the duty station and the manner of termination of absence e.g., apprehension but such facts though relevant are only prima facie, and not conclusive, evidence of such intention. Similarly the fact that an accused has been declared an absentee under AA Section 106 is not by itself a deciding factor if other evidence suggests the contrary. In Black‟s Law Dictionary the meaning of the expression‟ desertion‟ in Military law is stated as follows:- 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 an 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. “14. As we mentioned earlier, the Army Act makes a pointed distinction between „desertion‟ and „absence without leave‟ simpliciter. „Absence without leave‟ may be desertion if accompanied by the necessary „animus deserendi‟ or deemed to be desertion if the Court of Inquiry makes the declaration of absence prescribed by Section 106 after following the procedure laid down and the person declared absent had neither surrendered 10 nor been arrested.” It is evident from the aforesaid decision that absence without leave may itself amount to desertion if there is “animus deserendi”, that is, intention to desert. It is also clear from the said decision that it is not necessary in all cases of absence without leave to go through the procedure prescribed under Section 106 of the Act unless such a declaration is required for the purpose of treating the case as one of deemed desertion and not mere absence without leave simplicitor. In the present matter, it is evident that the petitioner had never been granted leave by any competent authority and in the midst of a serious situation like Kargil war he simply deserted while he was on duty and remained absent for a period of 70 days; no leave was taken by him. If his commanding officer was absent then he was required to obtain the leave from the immediate superior of the C.O. but he did not do so. Even the medical certificate of his mother only shows that she was suffering from chest pain. In the counter affidavit the stand has been taken that the Summary Court Martial has been held in accordance with law in which the petitioner 11 admitted his guilt. This Court has no reason to disbelieve such statement considering the action of the petitioner in the entire episode. The mere fact that the petitioner had voluntarily joined at B.R.C. Danapur has also been found to be insufficient by the respondent authorities and very rightly, as if at all he was serious in the matter he ought to have reported at the place where he was on duty in Jammu & Kashmir and not at Danapur. For all the aforesaid reasons this Court is of the view that the petitioner is unable to show any illegality or perversity in the impugned order. It is admitted that certain amounts remain to be paid to the petitioner. Let the said amount be paid to the petitioner within a period of four months from the date of receipt/production of a copy of this order. This writ application is, accordingly, dismissed. Anand Kr. ( Ramesh Kumar Datta, J.)