WP(C) 686/2009 BEFORE HON’BLE MR. JUSTICE ARUP KUMAR GOSWAMI JUDGMENT & ORDER Heard Mr. K. Sarma, learned counsel for the petitioner. Also heard Mr. M . Phukan, learned Central Government counsel, appearing for the respondents. 2. Dhereswar Deori, the husband of the petitioner was recruited as a Riflem an in the Assam Rifles Organization on 29.07.1989. The husband of the petitioner died on 24.08.2002. 3. By this application, the petitioner, who was a young lady of about 21 ye ars at the time of death of her husband with a girl child, has approached this C ourt for setting aside and quashing an order dated 01.11.2001 by which the husba nd of the petitioner was declared to be a deserter and for payment of family pen sion to her. Till 01.11.2001, the husband of the petitioner served the Assam Rif les for about 12(twelve) years 3(three) months. 4. The case of the petitioner is that her husband was suspected to be suffe ring from cancer of rectum from March, 2000 and he was admitted to Unit Hospital , 5 Assam Rifles and was then referred to the Air Force Hospital at Jorhat. Ther eafter, he was referred to Command Hospital at Calcutta. He was referred to Army Hospital (Research & Referral) at Delhi in the month of May, 2000, where his di agnosis was confirmed. In the said Hospital, he was treated for long 6(six) mont hs and thereafter, was granted leave for 4(four) weeks’ in the month of November , 2000 with an advice to report for review after expiry of leave of 4(four) week s in the Army Hospital, Delhi. The husband of the petitioner was bed-ridden and was unable to report, as advised. 5. 2(two) affidavits had been filed in the writ petition by the respondents by the same deponent, i.e. Major Onkar Chand: one on 19.06.2009 and the other o n 25.01.2010. In the affidavit filed on 19.06.2009, it is pointed out that the husband of the petitioner was found absent without any authority from 01.11.2001 and a Court of Inquiry was conducted in terms of Section 106 of the Army Act, 1 950 and he was declared to be a deserter w.e.f. 01.11.2001 and accordingly, the name of the husband of the petitioner was struck off from the unit strength. It is also pleaded that as he was declared a deserter, his past service was forfeit ed. The dues amounting to Rs.1,40,815/- being credit for Individual Running Ledg er Account (IRLA), GPF and balance amount of Rs.35,347/- was paid to the petitio ner. Further plea taken is that there is no provision in the Central Civil Serv ices (Pension) Rules, 1972 (for short, 1972 Rules ) for grant of pensionary ben efits to a deserter or to his next of kin and, therefore, the petitioner is not entitled to family pension. In the affidavit that was filed on 25.01.2010, it is stated that there i s a discrepancy with regard to the place where the husband of the petitioner die d as in the death certificate dated 27.06.2003 issued by Ghagrapar Police Statio n, it was stated that he died at village Boral Kuchi while he was staying with h is father-in-law, in the Indemnity Bond dated 18.06.2003, it was mentioned that he died at his own residence at Village Naktipara. It is averred that the petiti oner’s husband had resided in the residence of his father-in-law to avoid arrest and the father of the petitioner was harbouring a deserter. Reliance is placed on Rule 24 of the 1972 Rules to contend that past service of the petitioner has been forfeited and on Rule 48-A of the 1972 Rules to emphasise that the husband of the petitioner had not completed 20(twenty) years of qualifying service. It i s also stated that in the sheet-roll of the petitioner’s husband, there is no re cord of his hospital admission/discharge, transfer and as such, it implies that he was not admitted to any hospital. Doubt is also expressed on Annexure-2 of th e writ petition. 6. Mr. K. Sarma, learned counsel for the petitioner submits that it has not been disputed by the respondents that the husband of the petitioner died on 24. 08.2002. The Army authorities had also paid other dues, save and except, pension to the petitioner. He submits that it is unfortunate that a stand is taken in t he affidavit expressing doubt about Annexure-2 when the husband of the petitione r had died of cancer. If the authorities had not maintained their records includ ing sheet-roll properly, the petitioner cannot be penalised. The learned counse l has also placed before the Court a photocopy of the hand written document from which Annexure-2 has been typed out. He submits that no effort is made by the r espondents to locate the records regarding admission of the petitioner in the Ai r Force Hospital, Jorhat, Command Hospital, Calcutta and Army Hospital (Research & Referral), Delhi and an omnibus statement is made to project as if the husban d of the petitioner did not suffer from any disease. He also contends that the husband of the petitioner was not a deserter as he did not flee away from any as signed duty but was compelled, perforce of circumstances, to remain at home havi ng suffered from cancer of rectum. He has also argued that Annexure-R-4 dated 27 .08.2002 of the affidavit dated 25.01.2010, wherein it is recorded that the husb and of the petitioner was declared a deserter, was not communicated to the petit ioner and there is no document on record also to suggest despatch of the same to the petitioner and by the time, the aforesaid order was passed on 27.08.2002, t he husband of the petitioner was no more. The learned counsel submits that the p etitioner will be entitled to family pension in terms of Rule 54 of the 1972 Rul es. He has placed reliance on a judgment of the Supreme Court in the case of Cap t. Virendra Kumar through his wife -Vs- Chief of the Army Staff, New Delhi, repo rted in (1986) 2 SCC 217. 7. Mr. M. Phukan, learned Central Government counsel submits that if this C ourt holds that the husband of the petitioner was not a deserter then Rule 54 of the 1972 Rules will come into play and the petitioner will be entitled to famil y pension. However, he seriously contends that the petitioner was a deserter and if the finding recorded by the authorities that the husband of the petitioner w as a deserter is not interfered with, the petitioner will not be entitled to any pension in terms of Rule 24 as well as in terms of Rule 48 of the 1972 Rules. In tune with the stand taken in the affidavits, he has submitted that as the she et-roll of the petitioner did not contain any reference to admission/hospitalisa tion etc. it is extremely doubtful as to whether the husband of the petitioner h ad suffered from any disease. 8. I have considered the submissions advanced by the learned counsel appear ing for the parties and have also perused the materials on record. 9. Annexure-2, which is part of Paragraph-4 of the writ petition, is extrac ted herein below for a ready reference:- Confidential Unit Hospital 5 Assam Rifles Medical Case Sheet 1. Name :- D.S. Dewry, 28 yrs. 2. Service No. :- 153820 3. Rank :- RFN 4. Unit/Ship :- 5 Assam Rifles 5. Army/Corps/Branch/Trad :- 6. Service :- 11 years 7. Diagnosis :- Carcinoma Rectum This soldier serving in 15-AR is a case of Ca-Rectum. He reported his un it hosp. 15-AR with C/o- bleeding P/R in March 2000 from where he was referred t o 5 - Air Force Hospital, Jorhat in April 2000 after eight days he was referred to command hosp. Calcutta from there in May 2000 the patient was referred to Arm y hospital (Research & Referral) Delhi where his diagnosis of Ca-Rectum was conf irmed. He was admitted and was given time up to Nov. 2000 and was sent on sick l eave for 04 weeks with advise to report for review after expiry of sick leave. T he patient did not follow advice & reported to unit Hosp. 5-AR on 06th March, 20 01 for admission with c/o extreme weakness. His unit (15AR) was informed. O/E Afebaile B.P. 110/80 GE-MAD P.R. 78/min Ws Ps-MAD P/A soft. Mo organomegaly The patient is referred to Army Hospital (Research & Referral) Delhi for review. Sd/- illegible 13.03.01 10. Significantly, it is to be noticed that in the first affidavit that was filed on 19.06.2009, the respondents had not at all adverted to the case of the petitioner that her husband was suffering from cancer though had craved leave to file an additional affidavit in future. The averments made in Paragraph-4 of th e writ petition was traversed in Paragraph-11 of the affidavit dated 25.01.2010. The same reads as follows:- 11. That with regard to the statements made in paragraphs 4 and 5 of the Wri t Petition, the deponent begs to state that the allegations levelled by the writ petitioner is incorrect and hereby denied. The deponent further begs to state t hat if an individual is admitted in any hospital, transfer and discharge, same a re to be notified in Unit Part-II Orders and subsequently recorded in the sheet roll of a soldier. In the instance case, it is further submitted that in the she et roll of the petitioner’s husband there is no record of his hospital admission /discharge, transfer and as such the same implies that he was not admitted in an y hospital. Moreover, the annexure-2 has not been signed by any medical officer, therefore, the veracity of the medical certificate may be subject to the strict est proof before this Hon’ble Court. 11. A bare perusal of the averments made therein would go to show that no en quiry whatsoever was made with the 3(three) hospitals that was referred to in An nexure-2 of the writ petition to ascertain as to whether in reality the husband of the petitioner had been admitted and/or referred. Without making any such en quiry doubt is sought to be cast on Annexure-2 on the ground that description of his sickness, referral, hospitalisation etc., that is supposed to be incorporat ed in the sheet-roll, was not incorporated. With all the resources at their comm and, by making suitable enquiry, the respondents could have demonstrated with au thority and certainty that the husband of the petitioner never suffered from any disease and Annexure-2 is a manufactured document. The respondents have not dis puted that the petitioner’s husband did not die on 24.08.2012. In the circumsta nces, I am of the considered opinion that Annexure-2 cannot be discarded. The pe titioner has produced whatever medical document is available with her. 12. Annexure-4 of the affidavit that was filed on 25.01.2010 goes to show th at the name of Dhereswar Deori was Struck-off from Strength/Struck-off from Rati on Strength w.e.f. the same date the individual was declared as deserter, i.e. w .e.f. 01.11.2001 (FN). The order is dated 27.08.2002 and signed by Major Adj. fo r Commandant, 15 Assam Rifles. The respondents have not produced record of any C ourt of Inquiry, though stated that››› a Court of Inquiry under Section 106 of t he Army Act, 1950 was conducted. On a pointed query, Mr. Phukan concedes that An nexure-R-4 does not show that the same was issued in relation to any Court of In quiry proceeding. 13. Rule 24 of the 1970 Rules provides that dismissal or removal of a Govern ment servant from a service or post entails forfeiture of his past service. Rul e 48-A is on the subject of retirement on completion of 20(twenty) years’ qualif ying service. In the facts of the case, the aforesaid provisions are not at all attracted. 14. The word deserter is not a defined expression under the Army Act, 1950 . Section 38 of the Army Act, 1950, however, uses the expression desertion an d aiding desertion as offences. Section 39 deals with offences of absence wit hout leave. Section 105 provides for capture of deserters. Section 106 provides for an inquiry into absence without leave and deeming of a person as a deserter if the person declared absent does not afterwards surrender or is not apprehend ed. 15. In the Black’s Law Dictionary, 5th Edition, desertion in Military Law is stated as follows:- Military law. 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 r emain 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) w ithout 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 dis closing 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 deserti on. Code of Military Justice, 10 U.S.C.A. 885. 16. In the case of Capt. Virendra Kumar (supra), the Supreme Court in Paragr aph-13 had held thus:- 13. As we mentioned earlier neither the expression ’deserter’ nor the expres sion ’desertion’ is defined in the Army Act <https://indiankanoon.org/doc/165229 />. However we find paragraph 418 of the Artillery Records Instructions, 1981 re fers 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 vo luntarily absent without authority from the place where he knows, or ought to kn ow, that his duty requires him to be. If, when he so absented himself, he intend ed either to quit the service altogether or to avoid some particular duty for wh ich he would be required, he is guilty of desertion. Therefore, the distinction between desertion and absence without leave consists in the intention. (AO 159/7 2). 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.’ 17. The notes appended to Section 38 of the Army Act, 1950 were also referre d to and the same read as follows:- 2. Sub Section (1)-Desertion is distinguished from absence without leave un der AA Section 39 <https://indiankanoon.org/doc/816402/>, in that desertion or a ttempt to desert the service implies an intention on the part of the accused eit her (a) never to return to the service or (b) to avoid some important military d uty (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 mer ely 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 evidenc e that one or other such intention existed; further, it is sufficient if the int ention 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 s tation. 3. A person may be a deserter although he re-enrolls himself, or although i n the first instance his absence was legal (e.g. authorised by leave), the crite rion being the same, viz., whether the intention required for desertion can prop erly be inferred from the evidence available (the surrounding facts and the circ umstances of the case). 4. Intention to desert may be inferred from a long absence, wearing of disg uise, 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 co nclusive, evidence of such intention. Similarly the fact that an accused has bee n declared an absentee under AA Section 106 <https://indiankanoon.org/doc/981329 /> is not by itself a deciding factor if other evidence suggests the contrary. 18. In Paragraph-14 of Capt. Virendra Kumar (supra), it was observed by the Supreme Court as follows:- 14. As we mentioned earlier, the Army Act <https://indiankanoon.org/doc/1652 29/> makes a pointed distinction between ’Desertion’ and ’Absence without leave simpliciter’. ’Absence without leave’ may be desertion if accompanied by the ne cessary animus deserendi’ or deemed to be desertion if the Court of Inquiry make s the declaration of absence prescribed by Section 106 <https://indiankanoon.org /doc/981329/> after following the procedure laid down and the person declared ab sent had neither surrendered nor been arrested. 19. How and under what circumstances, the husband of the petitioner came to reside in his father-in-law’s residence or his own residence is not very clear. Even if there is any discrepancy with regard to place of death: whether in his own house or in the house of his father-in-law, the same will not be very materi al as death itself is not disputed. It is also very striking to note that the re spondents disbursed all benefits except pension to the petitioner only on produc tion of a certificate of the Officer-in-Charge of a Police Station. No death cer tificate was produced by the petitioner. The fact that the respondents were sati sfied with production of a death certificate issued by a Police Station for the purpose of grant of benefits on account of death of the husband of the petitione r seems to indicate that the respondents were aware of the medical condition of the petitioner, as otherwise it would have been highly unlikely that they would have disbursed benefits to the family member of a deserter without production of a valid death certificate. In absence of any material produced by the responden ts to demonstrate the basis on which the husband of the petitioner was held to b e deserter, it will be difficult to hold that petitioner had an intention to vol untarily desert the force. This Court is persuaded to take a view that absence of the husband of the petitioner for the period from 01.11.2001 to 24.08.2002, a t best, is a case of un-authorised absence, which was occasioned by a terminal d isease like cancer. 20. Taking that view, the finding recorded that the petitioner’s husband was a deserter is set aside. With the setting aside of the aforesaid finding, the petitioner will be entitled to family pension, entitlement of which is also othe rwise not disputed by Mr. Phukan. The respondents are directed to make payment o f family pension expeditiously as long 15(fifteen) years have already gone by. 21. With the above observations and directions, the writ petition stands all owed. No cost.