Ex Sep Sushil Sharma (Army) vs UOI & Others on 14 August 2025

O R D E R

14.08.2025

MA No 218/2015

1. This Application has been filed by the Applicant for condonation of delay in filing the OA. Having considered the reasons and grounds stated in the MA, the delay in filing the OA is condoned.

OA No 137/2015

2. By way of this Application, the Applicant has filed this OA, praying for the following relief, we quote:-

“In these circumstances, it is therefore, prayed that the act of respondents firstly declaring him deserter w.e.f. 12.01.2008 and consequently dismissing from service w.e.f. 20.04.2011 and secondly, in rejecting the representation of the petitioner under impugned order dated 01.06.2015, may kindly be declared illegal and invalid and therefore the same may kindly be quashed and set aside by appropriate order and respondents may kindly be directed by appropriate order or direction to reinstate the applicant with all consequential benefits.”

3. Brief facts of the case as enunciated by the Applicant are that the Applicant was enrolled in the Army in 2003 and while posted in 21 Field Workshop EME (416 Engr Bde) (Meerut, UP), he was illegally dismissed from Service vide impugned Order dt 20.04.2011. The Applicant submits that he was transferred from Meerut to Secunderabad in Aug 2009. He, along with his father went to Secunderabad to join his duties on 24.08.2009 but he was not permitted to join the duties and ordered to report back to his unit in Meerut vide Order dt 24.08.2009 (Annexure A/1). The Applicant submits that vide above order dt 24.08.2009 disciplinary proceedings were required to be held against the Applicant but neither the Court of Inquiry constituted nor the same were provided to him under Section 106 of Army Act, 1950 read with Rule 17 of Army Rules, 1954 prior to dismissal of the Applicant under Section 20 of Army Act, 1950. After being returned vide Order dt 24.08.2009, the Applicant fell sick and could not rejoin his duties at Meerut. Therefore, he sent an application dt 27.08.2009 to OC 21 Fd Wksp EME (416 Engr Bde) intimating that due to his illness, he will not be able to rejoin his duties and will join duties immediately on being cured (Annexure A/2). After dismissal of the Applicant from Service vide letter dt 19.03.2014 and re-equipping his health, the Applicant made representations on 24.04.2014 and 02.05.2014 for permitting him to resume his duties but he was not permitted to rejoin his duties. The Applicant also made representations to Hon’ble Defence Minister on 24.04.2014 (Annexure A/6) and His Excellency President of India on 02.05.2015 (Annexure A/7) for allowing him to rejoin his duties. However, the Respondents rejected his representations vide impugned Order dt 01.06.2015 intimating that after being declared deserter wef 12.01.2008, he has been dismissed from Service wef 20.04.2011 and, hence, cannot be allowed to rejoin his duties (Annexure A/9). Moreover, the Applicant was neither supplied copy of the order declaring him deserter wef 12.01.2008 nor the copy of order of dismissal from service dated 20.04.2011. The Respondents failed to consider the distinction between desertion and absence without leave which is mentioned in Sections 38, 39, 104 and 105 of Army Act, 1950. Further, Section 106 of Army Act, 1950 prescribes the procedure to be followed when a person without leave is deemed to be deserter. The purpose shown in the Court of Inquiry reveals that it was not for holding the disciplinary proceedings but was for checking personal and public clothing items. Further, the Applicant had never been informed nor any communication was made to him nor was verbally told when he presented himself on 24.08.2009 about holding of disciplinary Court of Inquiry and to present himself before the Court of Inquiry and the Respondents have also placed nothing on record which establishes that the Applicant was informed about holding of Court of Inquiry. The Applicant continued to intimate the authorities about his mental illness on 09.10.2009 along with medical certificate dt 27.08.2009 as well as his intention to resume the duties as and when he becomes fit as per the report of the Doctor, thus, by no stretch of imagination he could have been declared deserter even under Section 106(2) of Army Act, 1950. Learned Counsel for the Applicant reiterated that the declaration of the Applicant as deserter without constituting a Court of Inquiry wef 12.01.2008 is ab initio void having no consequences in the eye of law and, consequently, dismissal from service wef 20.04.2011 under Section 20(3) of Army Act, 1950 is also void ab initio and, hence, needs to be quashed and set aside, as the same is in contravention of Sub Section 3 of Section 38 of Army Act, 1950 as no notice was given to the Applicant. The Applicant further submits that dismissal of the Applicant from service after having been illegally declared is also contrary to Rule 17 of Army Rules, 1954 as procedure for giving reasonable opportunity to the person likely to be effected was not provided to the Applicant. In view of the aforesaid averments, the Applicant has filed present OA for the aforesaid prayer.

4. The Respondents have filed a detailed Reply Statement and submitted that the Applicant was enrolled in the Army on 28.03.2003. As per service records, the Applicant had committed three offences under Section 39(b) of Army Act, 1950, ie., Overstayal on Leave (OSL) from 24.12.2006 to 19.01.2007 (27 days), 28.05.2007 to 03.08.2007 (68 days) and 24.09.2007 to 11.01.2008 (110 days).

Though, the Applicant had rejoined his duty on 12.01.2008 after 110 days of Over Stayal on Leave (OSL), he again became Absent Without Leave (AWL) wef 12.01.2008 itself. Therefore, an apprehension roll was issued to the Civil Authorities for apprehending him vide 21 Fd Wksp EME (Engr Bde) letter dt 14.01.2008 under intimation to his father, Shri Sureswar Dayal Sharma. However, the Applicant was neither apprehended by the civil police nor he rejoined his duties. Therefore, on completion of 30 days of AWL, a duly constituted Court of Inquiry (C of I) was conducted on 10.03.2008, wherein the Applicant was declared deserter w.e.f. 12.01.2008 (Annexure R/1). In August 2009, EME Depot Battalion, vide their letter dt 24.08.2009 intimated that the Applicant had reported to their Battalion on 24.08.2009 (FN) along with his father and Depot Battalion directed him to report to his unit for finalization of disciplinary proceedings, but the Applicant did not report to his unit and the fact was conveyed to EME Depot Battalion vide 21 Fd Wksp EME letter dt 18.09.2009. After completion of 3 years of his desertion from Service, the Applicant was dismissed from Service on 20.04.2011 under Rule 20(3) of Army Act, 1950 and Part II Order dt 25.04.2011 published accordingly, which is just, fair, legal and according to the policy in vogue. The Applicant sent applications dt 27.08.2009 and 21.10.2009 to 21 Fd Wksp EME intimating his inability to rejoin duties due to his illness and his desire to rejoin duties on recovering from the illness. Thereafter, the Applicant sent another application dt 04.12.2010 to Commanding Officer 21 Fd Wksp EME (Engr Bde) regarding improvement in his health and desire to rejoin his duties. However, neither the Applicant rejoined his duties nor any intimation regarding the same was received by the unit or the Records Office till he was dismissed from Service on 20.04.2011, ie., after three years of his desertion. After dismissal from service, the account of the Applicant was finalized for credit balance of Rs. 11,285/-, AFPP Fund balance of Rs. 13,668/- and AGI Regular Maturity Benefit of Rs. 36,880/- (Total Rs. 61,833/-). After his dismissal on 20.04.2011, the Applicant made various Appeals for reinstatement in service which were suitably replied to stating that the Applicant was dismissed from Service being a habitual offender and cannot be reinstated in service and the Applicant is not entitled for any type of pensionary benefits in terms of Rule 113 (a) of Pension Regulations for the Army, 1961 (Part-1). The Respondents have reiterated that the disciplinary state of the

Applicant was not upto the mark. His record reveals that he was a habitual offender and kept committing offences repeatedly despite adequate opportunities given to him. He had never shown any respect towards the laid down military norms and law. Moreover, prolonged unauthorized absence from duty does not only affect the operational and administrative efficiency of a unit but also deprives other soldiers of the unit from timely grant of leave, etc., as the unit has to manage the administration by re-shuffling the manpower. The Armed Forces are known for high standard of discipline and conduct and also responsible for national security. Hence, all members are expected to maintain a high standard of discipline. Any leniency would set a bad example to other fellow soldiers which would be detrimental to the national security and integrity and, hence, such personnel are to be dealt sternly. During the course of arguments, Learned Counsel for the Respondents submitted that if the Applicant was really ill, he should have reported to his unit or nearest Military Hospital for medical treatment instead of getting treatment in other hospitals and had he got himself admitted in the nearest Military Hospital, he would have been treated on duty. In view of the above averments, the Respondents have reiterated that the Applicant was dismissed after following due procedures as laid down in Army Act, 1950, Army Rules, 1954 and extant provisions. The OA is devoid of merit and deserves to be dismissed with costs.

5. During the course of arguments, Learned Counsel for the Applicant placed reliance on Hon’ble Supreme Court judgment in the case of Capt Virendra Kumar (through his wife) Vs Chief of the Army Staff, (1986) 2 SCC 217 and prayed for quashing and setting-aside the impugned orders and reinstate the Applicant in Service with consequential benefits.

6. We have heard the counsel for the parties and perused the material placed on record.

7. Provisions for arrest of persons subject to Army Act by the Civil Authorities are given in Section 104 of Army Act, 1950 which reads as under:- “104. Arrest by civil authorities. Whenever any person subject to this Act, who is accused of any offence under this Act, is within the jurisdiction of any magistrate or police officer, such magistrate or police officer shall aid in the apprehension and delivery to military custody of such person upon receipt of a written application to that effect signed by his commanding officer.”

8. The provisions for issue of Apprehension Rolls of the service personnel deserted from duty are given in Rule 105 of Army Act, 1950, which reads as under:- “105. Capture of deserters.

Whenever any person subject to this Act deserts, the commanding officer of the corps, department or detachment to which he belongs, shall give written information of the desertion to such civil authorities as, in his opinion, may be able to afford assistance towards the capture of the deserter; and such authorities shall thereupon take steps for the apprehension of the said deserter in like manner as if he were a person for whose apprehension a warrant had been issued by a magistrate, and shall deliver the deserter. when apprehended, into military custody.

Any police officer may arrest without warrant any person reasonably believed to be subject to this Act, and to be a deserter or to be travelling without authority, and shall bring him without delay before the nearest magistrate, to be dealt with according to law.”

9. 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.”

10. 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”.

11. 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.”

12. 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) xxxxxx

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

13. 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. …..”

14. The provisions of quantum of punishments for person subject to Army Act, 1950, tried by Court Martial under Rules 38 and 39 of Army Act, 1950 reads as under:- “38. Desertion and aiding desertion.

Any person subject to this Act who deserts or attempts to desert the service shall, on conviction by court- martial, if he commits the offence on active service or when under orders for active service, be liable to suffer death or such less punishment as is in this Act mentioned; and if he commits the offence under any other circumstances, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.

Any person subject to this Act who, knowingly harbours any such deserter shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.

Any person subject to this Act who, being cognizant of any desertion or attempt at desertion of a person subject to this Act, does not forthwith give notice to his own or some other superior officer, or take any steps in his power to cause such person to be apprehended, shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to two years or such less punishment as is in this Act mentioned.”

39. Absence without leave. Any person subject to this Act who commits any of the following offences, that is to say, (a) absents himself without leave; or

(b) to (g) xxxxx

shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned.”

15. Hon’ble Supreme Court in its judgment dt 28.07.2023 in Civil Appeal No 246/2017 in the case of Ex Sep Madan Prasad Vs UOI & Ors held that the indisciplined Armed Forces Personnel does not deserve any leniency in grant of punishments, the relevant paragraphs of which read as under:- “16. Regulation 448 of the DSR cited by learned counsel contemplated the scale of punishments awardable by the SCM. The said Regulation states in so many words that these are general instructions issued for the guidance of officers holding SCM for passing a sentence and that nothing contained in the said Regulation would be construed as limiting the discretion of the Court to pass any legal sentence, even if there is good reason for doing so. Therefore, citing the table of punishments listed under the Schedule appended to Regulation 448 to urge that for absence without leave or for overstaying leave, the normal punishment being rigorous imprisonment for three years or less to be undergone in military custody, punishment of dismissal from service could not have been inflicted on the appellant by the SCM, is unacceptable. Sufficient discretion vests in the SCM to inflict a higher punishment in the given facts and circumstances of a case. Same is the position under Sections 72 and 73 of the Act. Both the sections leave it to the discretion of the Court Martial to award a particular punishment, depending on the nature and degree of the offence. There is no merit in the submission

made by learned counsel for the appellant that the said provisions are not applicable to a SCM.

17. For the aforesaid reasons, we do not find any infirmity in the impugned judgment passed by the AFT. The appellant had been taking too many liberties during his service and despite several punishments awarded to him earlier, ranging from imposition of fine to rigorous imprisonment, he did not mend his ways. This was his sixth infraction for the very same offence. Therefore, he did not deserve any leniency by infliction of a punishment lesser than that which has been awarded to him.

18. Accordingly, the present appeal is dismissed as meritless, while upholding the impugned judgment. The parties are left to bear their own costs.”

16. Further, on the issue of dealing with habitual offenders, Hon’ble Supreme Court in its judgment dated 02.09.2019 in Civil Appeal No 1857/2018 the case of Sep Satgur Singh Vs UOI, held as under:- “8. …….. He has been punished on each occasion for rigorous imprisonment ranging from 2 days to 28 days. A member of the Armed Forces cannot take his duty lightly and abstain from duty at his will. Since the absence of duty was on several occasions for which he was imposed punishment of imprisonment, therefore, the order of discharge cannot be said to be unjustified. The Commanding Officer has recorded that the appellant is a habitual offender. Such fact is supported by absence of the appellant from duty on seven occasions.

9. In view thereof, we do not find any error in the order of discharge of the appellant. Appeal is dismissed.”

17. On the issue of judicial review, the Hon’ble Supreme Court in its judgment dt 21.09.2021 (Para 23) in Civil Appeal No 5848/2021 in the case of UOI & Ors Vs Dalbir Singh held as under:- “23. In another Judgment reported as B.C Chaturvedi v. UOI & Ors, (1995) 6 SCC 749, it was held that the power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. The Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. The Court is to examine as to whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. This Court held as under:- “12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to re-appreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In UOI Vs H.C. Goel [(1964) 4 SCR 718 : AIR 1964 SC 364 : (1964) 1 LLJ 38], this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.”

18. In the case State Bank of Patiala & Ors Vs S.K. Sharma, (1996) 3 SCC 364, the Hon’ble Apex Court summarized the legal position relating to violation of procedural provisions in the disciplinary proceedings and orders of punishments as under:- “We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):

An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.

A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.

In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/ employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudicate, including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/ government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for

it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under

(4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.

(a) In the case of a procedural provision which is not of a mandatory characters the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it mays the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.

(b) In the case of violation of a procedural provision which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirements either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/ employee has not it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunkar, (1993) 4 SCC 727. The ultimate test is always the same viz., test of prejudice or the test of fair hearing, as it may be called.

Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between “no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing"/"no fair hearing".

(a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem).

(b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/ employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle [No.5] does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.)

While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/ Tribunal/ Authority must always bear in mind the ultimate and over- riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.

There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/ State interest with the requirement of natural justice and arrive at an appropriate decision.”

19. In the present case, it is evident that the Applicant was a perpetual offender and very indisciplined soldier. Before his last Absence Without Leave on

12.01.2008, he had overstayed on leave thrice from 24.12.2006 to 19.01.2007 (27 days), 28.05.2007 to 03.08.2007 (68 days) and 24.09.2007 to 11.01.2008 (110 days). After joining his unit on 12.01.2008, he again became Absent Without Leave (AWL) wef 12.01.2008, ie., the very same day, which clearly implies that he was not interested to serve in the Army. The Respondents, after following due procedures, issued Apprehension Roll to the concerned Police authorities under intimation to his father in terms of Section 105 of Army Act, 1950 and after thirty days of his desertion, the Applicant was rightly declared deserter wef 12.01.2008 by the duly constituted Court of Inquiry under Section 106 of Army Act, 1950. The Applicant had the opportunity either to rejoin his duties or get himself admitted in the nearest Military Hospital, if he was ill, but instead of that, he chose to remain absent. Though the Applicant placed on record copies of applications dt 09.10.2009 and 03.02.2010 sent to his Officer Commanding about his treatment of illness and desire to rejoin his duties on regaining his health but he did not rejoin his duty which substantiates that he was trying to mislead his unit authorities and was not interested to join his duties. Since neither the Applicant rejoined his duties voluntarily nor he was apprehended by civil police and no intimation of his apprehension was received from police authorities under Section 104 of Army Act, 1950, after three years of his desertion, he was rightly dismissed from Service on 20.04.2011 under Rule 20 (3) of Army Act, 1950 and Rule 22 (b) of Army Order 43/2001/DV. Since the Applicant was dismissed from Service being a deserter and was not tried by Court Martial, Rule 17, 38 and 39 of Army Rules, 1954 are not applicable in this case. Therefore, we are of the considered view that after following due procedures, the Applicant was validly discharged from Service on the orders of the Competent Authority and we find no illegality or infirmity in dismissing him from service under Rule 20(3) of Army Act, 1950.

20. It needs no emphasis that the Applicant had voluntarily joined the Army to serve the Nation, but contrary to the Oath administered by him, he has clearly belied the trust reposed upon him to remain disciplined while discharging his military duty. Within a small period of five years, the Applicant had overstayed on leave thrice and fourth time deserted himself and did not rejoin his duties, despite issuance of Apprehension Roll to the concerned authorities under intimation to his father. The Respondents have rightly dismissed the applicant after following due procedures and due process of law. Therefore, we find no infirmity or illegality in dismissal of the Applicant from Service warranting our interference. This Tribunal is fully cognizant of the fact that the object of appropriate punishment to military personnel is not merely to inflict punishment, but also to ensure that undue leniency does not set a bad precedent for others to emulate and jeopardise the overall discipline and operational well-being of a fighting Army Unit. Though the Applicant wrote letters dt 09.10.2009 and 03.02.2010 to his Officer Commanding about his illness and desire to rejoin the duties on regaining his health but he did not rejoin his duty till he was dismissed from service on 20.04.2011, which substantiates that he was trying to mislead his unit authorities and was not interested to join his duties. If the Applicant was interested to join his duties and treatment of his illness, he should have reported to nearest Military Hospital for treatment but he did not do that but keep trying to mislead the unit authorities, which substantiates that he had no intention to serve in the Army. Therefore, in the light of principles laid down by Hon’ble Supreme Court in the case of Sep Satgur Singh (Supra), the Applicant does not deserve any leniency and cannot be reinstated in service. The Applicant was rightly dismissed from service after following due procedures, which is legally valid and justified and warrants no interference. The judgment in the case of Capt Virendra Kumar (Supra) relied upon by the Applicant is distinguishable and not related to the facts and circumstances of the case as the Applicant was dismissed from Service being a deserter, however, Capt Virendra Kumar (Supra) was tried by a Court Martial.

21. In-fine, we are of the considered view that the plea of the Applicant is devoid of merit and, hence, the OA is dismissed. Pending Miscellaneous Application(s), if any, also stand disposed off.

22. No order on costs.

(SANJIV MITTAL)

(GOVERDHAN BARDHAR) MEMBER (A)

MEMBER (J)

Ssy/-