Ex Sigmn Jitendra Singh Baswal vs UOI & Others on 6 November 2025

ORDER

06.11.2025 Applicant Respondents HON'BLE MR. JUSTICE GOVERDHAN BARDHAR, MEMBER (J) HON'BLE MR. SANJIV MITTAL, MEMBER (A)

1. By way of this Application under Section 14 of the Armed Forces Tribunal Act 2007, the Applicant has filed this OA, praying for directing the Respondents to re instate the Applicant in service from the date of his dismissal from Service, ie., wef 16.11.2019 along with consequential benefits.

2. Brief facts of the case as enunciated by the Applicant are that the Applicant was enrolled in the Army on 28.03.2006 and was dismissed from Service on 16.11.2019 as a Deserter. In the year 2009, the Applicant was granted leave and he could not rejoin on time after expiry of leave due to compelling family circumstances and reported in the unit 2-3 days late, but he was not allowed to rejoin his duties. The Applicant's father also contacted the higher authorities to allow his son to rejoin his duty but to no avail. The Applicant came to know about his dismissal from service in the year 2023 only through the information sought through RTI. The Applicant submits that he was never informed about initiating the exercise of his proposed dismissal and he was not provided any opportunity of hearing. In OA No 322/2023 Ex Sigmn itendra Singh Baswala Vs UOI & Ors support of his claim, the Applicant has placed reliance on Hon'ble Supreme Court judgments in the case of Ex-Commodore Sukhjinder Singh Vs UOI, Ex-Cdr Satyvir Singh Payal Vs UOI, Ex-Sgt RK Sutar Vs UOI & Ors. The Applicant also placed reliance on Hon'ble Supreme Court judgment in Civil Appeal No 352/2017 in the case of S. Muthu Kumaran Vs UOI & Ors and prayed that he should be reinstated in Service along with consequential benefits.

3. The Respondents have filed a detailed Reply Statement and submitted that the OA has been filed after a long delay of more than 3 years, therefore, the same is required to be dismissed on this ground alone. The Respondents have further submitted that while serving with 25 Infantry Division Signal Regiment, the Applicant was granted 30 days Casual Leave from 16.10.2009 to 14.11.2009 with suffiX on 15.11.2009. On expiry of said leave, since the Applicant failed to report on duty, he was declared Overstayed of Leave (OSL) wef 16.11.2009. Accordingly, the Applicant's unit issued Apprehension Roll to the Superintendent of Police, Jhunjhunu on 12.12.2009 but neither the Applicant rejoined his duties nor was he apprehended by the Civil Police. After continuous 30 days of absence from duty, the Applicant was declared "Deserter" wef 16.11.2009 by a duly constituted Court of Inquiry in accordance with Army Act Section 106, Army Rule 183 and Para 376 to 381 of Regulations for the Army, 1987 (Revised Edition) and the occurrence was published vide Part II Order dt 06.01.2010. Since the Applicant was neither apprehended by the Civil Police nor he rejoined his duties voluntarily within ten years of absence/desertion, being a deserter from Field Area, he vwas dismissed from Service wef 16.11.2019 in terms of Army Act Section 20(3) read in conjunction with Army Rule 17, Para 22 (a) of Army Order No 43/2001/DV, in accordance with IHQ of MoD (Army) letter dt 11.03,1980 as amended vide letter dt 24.02.1987 after obtaining approval/sanction of Competent Authority and DO Part II dt 24.04.2020 was published. Accordingly, intimation regarding dismissal of the Applicant from Service was intimated to SP, Jhunjhunu with a copy of the Next of Kin (NOK) of the Applicant vide letter dt 24.04.2020. Since the Applicant was dismissed from Service, his service stands fofeited for pensionary benefits in terms of Rule 113 (a) of Pension Regulations for the Army, 1961 (Part-1) and Rule 41 of Pension Requlations for the Army, 2008 (Part-1). Moreover, the Applicant had rendered only three years and seven months of qualifying service and, hence, he is not eligible for grant of Servíce 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. In view of the aforesaid averments, the Respondents have reiterated that the Applicant was dismissed from service as a deserter after following due process, therefore, he cannot be reinstated in service, 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.

5. It is not in dispute that the Applicant did not rejoin his duty on time after expiry of his leave. Though the Applicant has submitted that he did report to rejoin his duties in the unit 2-3 days after due date but he was not allowed to rejoin duty and his father had also approached higher authorities to allow his son to rejoin his duties, he placed nothing on record to substantiate his claim. Perusal of record reveals that the Apprehension Roll was issued to SP, Jhunjhunu but neither the Applicant rejoined voluntarily nor was he apprehended by Civil Police for a long period of ten years. Further, after dismissal of the Applicant from Service on 16.11.2019, the intimation regarding his dismissal from Service was also communicated to SP, Jhunjhunu with a copy of the same to his NOK, which establishes that the Applicant was well aware about his dismissal from Service. Therefore, the contention of the Applicant that he came to know about his dismissal from Service in year 2023 from the information sought through RTI seems to be a concocted story to garner undue benefits in a fraudulent manner and is an afterthought.

6. 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 OA No 322/2023 Ex Sigmn Jitendra Singh Baswala Vs UOI & Ors

7. 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 satistfied 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 aftewards surrender or is not apprehended he shall, for the purposes of this Act be deemed to be a deserter. 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.

/he Chief of the Army Staff may dismiss or remOve from the sevice 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 peson serving under his command other than an officer or a junior Commissioned officer" 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 rom the service under Army Act Section 19 read with Armny 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: () Those who desert while on active service in the forward areas specified in Extra Ordinay Gazette SRO 17E dated O5 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.

(i)

(i) Those who desert with arms or lethal weapons. Those who desert due to subversive/espionage activities. () desertion. Those who commit any other serious offence in addition to

9.

(b)

(c)

11. (V) Officers and JCOs/WOs (including Reservist Officers and JCOs, who fail to report when required). (V) Those who have proOceeded abroad after desertion. After 3 years of absence/desertion in other cases. The period of 10 years mentioned at sub para (a) above may be reduced with specific approval of COAS in special cases. With regard to right of person tried to copies of proceedings, Rule 147 of Army Rules, 1954 reads as under: "147. Right of person tried to copies of proceedings - Every person tried by a Court-Martial (other than Summary Court Martial) shall, after the proceedings have been signed by the presiding officer and in the case of Summary Court-Martial the officer holding the trial, and before they are destroyed on a request made by such person in writing to the Court or the officer holding the trialor the person having the custody of his proceedings, be entitled for the supply of a cOpy of such proceedings, within a reasonable time and free of cost, including the proceedings upon revision, if any."

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. From the foregoing, it is clear that, being a deserter from Field Area, the Applicant was dismissed from service by the Respondents after following due process of law and in accordance with the provisions made under Army Act/Army Rules/Army Orders. In this case, Rule 147 of Army Rules, 1954 also does not apply as the Applicant was dismissed being a deserter and not dismissed by a Court Martial. 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. In the instant case, the applicant willfully remained Absent Without Leave for more than ten years and never approached the Unit authorities either through a letter or in person expressing his intention to join the duty, making it clear that he had no intention of serving the

Army. While the applicant maintained stoic silence all along his long absence for a period of more than ten years, it is considered that filing of this OA is frivolous and vexatiouS, only to garner pecuniary benefits. The plea, therefore, of the applicant for reinstating in service has no merit and is rejected.

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

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

14. No order on costs. (SANJIV MITTAL) MEMBER (A) Ssyl URCES (GOVERDHAN BARDHAR) MEMBER(J) OA No 322/2023 Ex Sigmn Jitendra Singh BaSwala Vs UOI & Ors