IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.8 of 2009 1. UNION OF INDIA through the Secretary, Defence Department, Government of India, New Delhi 2. The Chief of the Army Staff, Defence Head Quarter, New Delhi 3. The Major General, Central Commandant Army Medical Corps, Record Military Camp, Lucknow-226002(U. P.) 4. The Commanding Officer, 179 Military Hospital, Kalimpong, C/O 99APO … … Appellants Versus LAKSHMI NARAIN SINGH son of late Sheomuni Singh, resident of villge Barari(Bhadwar) P.S. Barahampur, Districtr Buxar(Buxar) … … Respsondent For the appellants: Mrs. Nivedita Nirvikar For the respondent: Mr. Brij Mohan R. Singh ----------- 7. 28.4.2009 Heard the parties. By the judgment under appeal dated 16.5.2007, the writ Court has allowed the writ petition and interfered with the declaration against the writ petitioner that he was deserter in the Indian Army and also with his dismissal from service. Since the writ petitioner had crossed the age of superannuation hence, instead of directing for reinstatement in service, a direction was issued by the writ Court to treat the writ petitioner to be in service for the purpose of benefit of pension and to pay the retrial 2 dues within a fixed time. Learned counsel for the appellants has submitted that the averments made in the counter affidavit disclosed that when the writ petitioner did not show up after expiry of his annual leave, an apprehension roll was issued against him. As he could not be contacted or arrested, proceedings were initiated under Section 106 of the Army Act and he was declared a deserter. In the given facts, subsequently, the authority had no option but to dismiss the writ petitioner from service. It was submitted that in the counter affidavit, on account of relevant records not being available at that time the exact date of initiation of proceedings under Section 106 of the Army Act was not provided but now Annexure-3 has been annexed with the memorandum of this appeal in support of the submission that such a proceeding was initiated on 21.6.1996 on expiry of leave which took place on 11.5.1996. It has further been submitted that the writ petition was filed after considerable delay in the year 3 2005 but any how now the records have been traced and relevant documents have been annexed in this appeal. On behalf of the respondent it was submitted that since the appellants failed to categorically assert in the counter affidavit the date when the Court of Enquiry was constituted, the writ Court rightly held that it was the duty of the authorities to satisfy the Court that the proceedings initiated under the provision of Army Act and the Army Rules were in conformity with the Act and Rules and since the authorities had failed to provide the date of initiation of the enquiry, the writ Court rightly granted relief to the respondent/writ petitioner on the basis of a judgment of this Court in the case of Smt. Meera Devi Vs. Union of India: 2000(4) PLJR 228. We have gone through the judgment under appeal keeping in view the submissions of the parties and we find that the relief was granted to the writ petitioner only on account of failure of the appellants to furnish the date when the Court of Enquiry 4 was constituted and held against the writ petitioner. We have also noticed that the writ Court placed the burden of showing that proceedings were in accordance with law upon the authorities. In our opinion, the presumption is otherwise. As indicated in Section 114(e) of the Indian Evidence Act, the judicial and official acts have been regularly performed have to be presumed by a court unless such presumption is rebutted by the other side challenging the regularity and correctness of the act. Now the presumption of regularity of the official act is further strengthened by the additional material brought before us in this appeal through annexures to this appeal which include Anexure-3 showing that the Court of Enquiry assembled only on 21st June, 1996 and onwards. In view of aforesaid materials and considering that learned counsel for the respondent, herein, wanted to raise certain other grounds such as animus has not been proved against the petitioner that he intended to be a deserter, we think it 5 appropriate to remand the matter back to the writ Court for fresh decision on the basis of further materials brought by the appellants on record and the discussion made in this order. It will be open to the writ petitioner to raise any other additional point which could not be raised in the writ Court earlier. The appeal is allowed, the order under appeal is set aside and the matter is remitted back for fresh decision. Kanth ( Shiva Kirti Singh, J.) ( Dharnidhar Jha, J.)