Ex Gdsm Bhagwan Singh (Army) vs UOI & Others on 20 February 2026

O R D E R

20.02.2026

1. Under Section 14 of the Armed Forces Tribunal Act 2007, the Applicant has filed this OA praying for directing the Respondents to quash and set-aside order of termination dt 20.04.1982, impugned order dt 02.02.2017 and proceedings of board of officers held on 28.04.2011 as far as it relates to destruction of documents of the Applicant and grant pensionary benefits to the Applicant by treating his qualifying service as 15 years after condonation of shortfall of service.

2. Brief facts of the case as enunciated by the Applicant are that the Applicant was enrolled in the Army on 16.08.1971 and was dismissed from Service on 20.04.1982 as a Deserter. In the year 1978, the Applicant was granted Balance of Annual Leave from 20.10.1978 to 18.11.1978. In the midst of leave, the Applicant suffered from some mental ailment due to which he lost sense of thinking and disappeared from home and after sometime he returned home. Therefore, on expiry of leave, he could not rejoin on time. After 30 days of his overstay on leave, he was declared deserter wef 19.11.1978 and, subsequently, he was dismissed from Service wef 20.04.1982.After some local treatment, the Applicant reported in his unit in March 1979 but was not allowed to enter the unit and was directed to report to Brigade of the Guards Regimental Centre, Kamptee (Maharashtra). The Applicant reported there in March/April 1979 but from there also he was returned stating that his documents have not been received from his unit. The Applicant submits that as he recollects (not sure), if he comes back with requisite papers in regard to desertion with a movement order, he would be proceeded against as per rules. Thereafter, the Applicant made no efforts to join there as he did not receive any communication from the unit or the Regimental Training Centre. Since the matter remained hanging, his son, Shri Rakesh, asked for the copies of service records and inquiry conducted by District Sainik Board vide letters dt 30.01.2009 and 16.03.2009, but the same were not supplied by the Respondents. However, they intimated that his father was dismissed from service wef 20.04.1982, being a deserter. The Applicant submits that being mentally ill, he could not pursue his case. However, in year 2015, his son contacted with an Advocate and issued Legal Notice dt 22.02.2015 to make available requisite documents with regard to dismissal of the Applicant from Service.However, he was informed that his Service documents have been destroyed in terms of extant rules by a board of officers in year 2010. The Applicant submits that neither the Applicant nor his next of kin was communicated about his dismissal from Service. The instructions contained in IHQ of MoD (Army) letter dt 11.03.1980 are in direct conflict with Para 376 of the Regulations for the Army, 1987 (Revised Edition) and the same requires judicial scrutiny. The Applicant has raised objection that once his son had asked for documents in year 2009, the same should not have been destroyed in year 2010, especially when the dispute arose with regard to dismissal of the Applicant from service and the same is wholly illegal and unjustified and the Respondents owe an explanation in this regard. Further, as per Army HQ letter dt 11.03.1980, the services of a deserter can be dispensed with under the provisions of Army Act Section 20(3) read with Army Rule 17 after lapse of three years and 10 years of desertion from Peace and Field Areas respectively. The Applicant has contended that at the time of his desertion from Service, he was posted in Kheru (J&K), which is a Field Area. He should have been dispensed with after 10 years of his desertion from field service area whereas he was dismissed from Service on 20.04.1982, ie., only after three years of his being declared deserter wef 19.11.1978, which is illegal and contrary to law and have to be quashed and set-aside. In support of his case, the Applicant has placed reliance on Hon’ble Supreme Court judgment in the case of CaptVirendra Kumar Vs COAS, AIR 1986 SC 1060and prayed for quashing and setting-aside the impugned orders and reinstate the Applicant in Service.

3. The Respondents have filed a detailed Reply Statement and while not disputing the basic facts presented by the Applicant, they have submitted that the OA has been filed after a long delay of more than 35 years, therefore, the same is required to be dismissed on this ground alone.The Service documents of the Applicant have been destroyed after expiry of mandatory retention period. However, as per Long Roll available with the Respondents, the Applicant was dismissed from Service as a Deserter. Since the Applicant failed to rejoin duty on expiry of leave, after 30 days of his overstay on leave, he was declared as a Deserter wef 19.11.1978 by a duly constituted Court of Inquiry held under Section 106 of Army Act, 1950. Since neither the Applicant rejoined his duties nor was he apprehended by civil police, on completion of 3 years of his desertion, he was dismissed from Service wef 20.04.1982 under Army Act Section 20. On the issue of communication to the Applicant about the dismissal from Service and also the dismissal of the Applicant from Service after three years of desertion instead of ten years of dismissal, the Respondents have submitted that since the documents have been destroyed after expiry of mandatory retention period in terms of Rule 592 to 595 of Regulations for the Army, 1987 (Revised Edition), they are not in a position to comment on this issue in the absence of substantial evidence. Since the Applicant was dismissed from Service, his service stands forfeited for pensionary benefits in terms of Rule 113 (a) of Pension Regulations for the Army, 1961 (Part- 1). Moreover, the Applicant had rendered only seven years and 95 days of qualifying service and, hence, he is not eligible for grant of Service Pension as in terms of Rule 132 of Pension Regulations for the Army, 1961 (Part-1), minimum mandatory qualifying service for grant of Service Pension is 15 years. The Respondents have relied on Hon’ble Supreme Court judgment in the case of C

Jacob Vs Director of Geology and Mining &Anr (2008) 10 SCC 115and contended that a dead and stale claim cannot be permitted to be revived. In view of the aforesaid averments, the Respondents have reiterated that the OA is devoid of merit and deserves to be dismissed with costs.

4. We have heard the counsel for the parties and perused the material placed on record, including written submissions from the Counsel for the Applicant.

5. With regard to holding of Court of Inquiry for persons absenting without leave, Section 106 of Army Act, 1950, reads as under:-

“106. Inquiry into absence without leave –

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 nor 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.

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.”

6. With regard to Dismissal from Service, Section 20 of Army Act, 1950, reads as under :- “20. Dismissal, removal or reduction by the Chief of the Army Staff and by other officers.

The Chief of the Army Staff may dismiss or remove from the service any person subject to this Act other than an officer.

The Chief of the Army Staff may reduce to a lower grade or rank or the ranks, any warrant officer or any non-commissioned officer.

An officer having power not less than a brigade or equivalent commander or any prescribed officer may dismiss or remove from the service any person serving under his command other than an officer or a junior commissioned officer”.

7. Procedures for dismissal or removal are mentioned in Rule 17 of Army Rules, 1954, which reads as under:- “17. Dismissal or removal by Chief of the Army Staff and by Other Officers. – Save in the case where a person is dismissed or removed from service on the ground of conduct which has led to his conviction by a Criminal Court or a Court-Martial, no person shall be dismissed or removed under Sub Section (1) or Sub-Section (3) of Section 20; unless he has been informed of the particulars of the cause of action against him and allowed reasonable time to state in writing any reasons he may have to urge against his dismissal or removal from the service:

Provided that if in the opinion of the officer competent to order the dismissal or removal, it is not expedient or reasonably practicable to comply with the provisions of this rule, he may after certifying to that effect, order the dismissal or removal without comply with the procedure set out in this rule. All cases of dismissal or removal under this rule where the prescribed procedure has not been complied with shall be reported to the Central Government.”

8. Para 376 of Regulations for the Army, 1987 (Revised Edition) (Volume-1), reads as under:- “376. Deserters from the Regular Army. A person subject to AA who is declared absent under AA, Section 106 does not thereby cease to belong to the Corps in which he is enrolled though no longer shown on its returns, and can, if subsequently arrested, be tried by court-martial for desertion. When arrested he will be shown on returns as rejoined from desertion.”

9. With regard to the procedures of dismissal, Para 22 (b) of Army Order 43/2001/DV, reads as under:- “22. A person subject to the Army Act, or a reservist subject to Indian Reserve Forces Act, who does not surrender or is not apprehended, will be dismissed from the service under Army Act Section 19 read with Army Rule 14 or Army Act Section 20 read with Army Rule 17, as the case may be, in accordance with instructions given below:- (a) After 10 years of absence/desertion in the following cases:-

(i) Those who desert while on active service in the forward areas specified in Extra Ordinary Gazette SRO 17E dated 05 Sep 77 (reproduced on page 751 of MML Part III) or while serving with a force engaged in operations, or in order to avoid such service.

(ii) Those who desert with arms or lethal weapons.

(iii) Those who desert due to subversive/espionage activities.

(iv) Those who commit any other serious offence in addition to desertion.

(v) Officers and JCOs/WOs (including Reservist Officers and JCOs, who fail to report when required).

(v) Those who have proceeded abroad after desertion.

(b) After 3 years of absence/desertion in other cases.”

(c) The period of 10 years mentioned at sub para (a) above may be reduced with specific approval of COAS in special cases.

10. Also, dismissed Armed Forces Personnel are not entitled to any pensionary benefits in terms of Para 113 of Pension Regulations for the Army 1961, Part I, as Regulation 113 (a) of the Pension Regulations, 1961, Part I, which reads as follows:-

“Individual Dismissed/Removed/Discharged under the Army Act.

113 (a). An individual, who is dismissed under the provisions of the Army Act, is ineligible for pension or gratuity in respect of all previous service. …..”

11. It is not in dispute that the Applicant was dismissed from Service as a Deserter. In the present case, after declaring the Applicant as deserter upon the recommendations of the duly constituted Court of Inquiry, he was neither apprehended by the civil police nor he voluntarily rejoined his duties, and hence, he was rightly dismissed from Service in terms of Army Act Section 106 read in conjunction with IHQ of MoD (Army) letter No 17774/AG/DV-1 dt 11.03.1980. In Para Para 2 (e) of Records, Brigade of the Guards letter No 2267/LN/C-Cell dt 02.02.2017, the Respondents have clearly mentioned that the Applicant was dismissed from Service after a lapse of three years from the date of desertion from Peace.The provisions of Para 376 of Regulations for the Army, 1987 (Revised Edition) and Army Act Section 20(3) and Army Rule 17 are complimentary to each other and not in conflict, as stated by the Applicant, and need no judicial scrutiny. Since the Applicant was dismissed from Service being a deserter and was not tried by Court Martial, Rule 17 of Army Rules, 1954 is not applicable in this case. Though the Applicant has claimed that in March/April 1979, he went to his unit and Regimental Training Centre at Kamptee to rejoin his duties,but he was not allowed to rejoin his duties, he has placed nothing on record as an evidencein support of his claim. The son of the Applicant, Shri Rakesh Kumar wrote two letters dt

30.01.2009 and 16.03.2009 to Commandant, Guards Regimental Training Centre, Kamptee to supply copies of the proceedings of Inquiry conducted by Sainik Board and Service Records to him on the pretext that his father, the Applicant herein, has not returned home from duty. However, as per Certificate given by Shri Mahesh Kumar Mahicha,Parsad, Nagar Palika, Ward No-6, FatehpurSekhawati, the Applicant was living at his native place. Moreover, the Applicant has himself filed the present OA. Further, the son of the Applicant in the aforesaid letters and the Applicant in the OA have claimed that the Applicant is suffering from mental disorder but they have placed nothing on record which establishes that the Applicant is/was suffering from mental disorder. If the Applicant was really mentally ill, he should have reported his medical condition to his unit or nearest Military Hospital for medical treatment instead of getting local treatment, as claimed by the Applicant. Had he got himself admitted in the nearest Military Hospital, he would have been treated as if on duty. The above facts clearly establish that the Applicantwas fully aware that being a deserter, if he rejoins, he would be proceeded against in terms of Army Act and might be punished and he was not eligible for grant of pensionary benefits as he had not completed the qualifying service for Pension. He neither rejoined his duties nor made any appeal against his dismissal from Service in 1982 and maintained a stoic silence till his service documents were destroyed. Now having come to know the fact that his service documents have been destroyed, the Applicant has filed present OA by making concocted story of his mental sicknessto mislead this Court with a view to garner undue pecuniary benefits. Since neither the Applicant rejoined his duties voluntarily nor was he apprehended by civil police and no intimation of his whereabouts was received from police authorities, after three years of his desertion, he was rightly dismissed from Service on 20.04.1982 as per provisions contained in Army Act. Therefore, we are of the considered view that after following due procedures, the Applicant was validly dismissed from Service on the orders of the Competent Authority and we find no illegality or infirmity in his dismissal from service.

12. The cases relied upon by the Applicant are distinguishable and not related to the facts and circumstances of the present case.

13. Moreover, the OA has been filed after an inordinate and inexplicable delay of more than 35 years. Therefore, this case is squarely covered by the judgment of the Hon’ble Supreme Court in the case of C. Jacob Vs. Director of Geology and Mining &Anr.,(2008) 10 SCC 115, which held that a stale claim cannot be permitted to be revived. Persons who slept over his right is not entitled for any indulgence. Hon’ble Allahabad High Court, in the case of Inderpal Singh Vs UOI &Orsin Civil Writ Petition 8524/2000 decided on 04.08.2004, held that the petitioner who himself was not interested in pursuing the matter and kept silent for 11 years, hence, delay cannot be condoned.

14. In-fine, the OA is devoid of merit on all counts and, hence, is dismissed.Pending Miscellaneous Application(s), if any, also stand disposed off.

15. No order on costs.

(SANJIV MITTAL)

(GOVERDHAN BARDHAR) MEMBER (A)

MEMBER (J)

Ssy/-