1. This is an OA by virtue of which, the applicant has prayed for setting aside the charge sheet, Summary of Evidence dated 16.09.2010 and the proceedings of Summary Court Martial and order dated 29.09.2010, by virtue of which the applicant was dismissed from service. The applicant also prayed for being reinstated with continuity of service and payment of back wages.
2. Briefly stated the applicant was employed with the respondents in the year 2002 as a Sepoy. The applicant while on active service was granted six days preparatory leave excluding the Sunday from 08.04.2010 to 14.04.2010 and 5 days journey period from 15.4.2010 to 19.04.2010 by 11 Infantry Division Signal Regiment while proceeding to permanent posting to 56 Infantry Division Signal Regiment. He had to join new posting on 20.04.2010 but the applicant did not join in the said Regiment. He absented without intimation and thereafter he surrendered voluntarily to the Depot Regiment Corps of Signals on 26.09.2010 i.e. almost after 98 days and thus committed an offence under Section 39(b) of the Army Act.
3. The second charge against the applicant was under Section 54(b) of the Army Act ‘losing by neglect clothing and equipment, the property of the Government issued to him for his use valued at Rs. 1582/-’. The applicant pleaded guilty and the respondents during Summary of Evidence recorded the statement of Lance Hav Rajendra Singh of Depot Regiment, Corps of Signals who stated that the applicant was apprehended on 26.07.2010 for overstaying leave of 98 days. He verified the identify from his possession and pay book and also checked clothing etc. which he was in possession. The witness was not cross examined and therefore, his testimony was not assailed. Summary statement of Hav (Clerk SD) Gopal Choudhary of Depot Regiment (Corps of Signals) was also recorded who stated that the applicant was enrolled in the Army on 01.01.2003 and he was granted leave as stated in the charge sheet and was required to report for duty on 20.04.2010 after availing of the leave at 56 Infantry Division, Signals Regiment which he did not do. He was also in possession of various properties of the Government like Identity card, pay book, clothing etc. and in so far as the witness is concerned, he was the custodian of the documents pertaining to deserter. The applicant was a deserter as stated by him. This witness was also not cross examined. After recording summary of evidence, the applicant was asked if he wanted to make any statement whereupon he answered in affirmative and made a statement admitting that he had proceeded on leave but the reasons for his absence given by him are reproduced herein:
On 09 May 2010 I reported to 56 Infantry Divisional Signal Regiment. I produce 220 Transit Camp Stamp endorsed on my movement order (Movement order with transit camp stamp endorsed on reverse is att as Exhibit-6). The Unit did not accept me because I was 19 days late. I was forced to leave the unit at night. I then come to Deport Regt where I was advised to report back to 56 Infantry Divisional Signal Regiment as it was less than 30 days, but I did not got the unit instead I went back to home. Then I again went to my unit on 20 July 2010. I produce my movement order with 220 Transit Camp seal on reverse side (Refer Exhibit-4) but again I was not accepted by the unit. I was told that my documents have been sent to Signals Records. Then I voluntarily surrendered to Deport Regiment (Corps of Signals) on 26 July 2010 at 1000 hours. I realise that I have done a great mistake. I am from a poor family. I will never repeat such mistakes every in my life.
4. After the statement, the applicant was asked if he wants to examine any witness in defence which he declined. The applicant was sentenced to dismissal because he absented for 98 days and therefore he was treated as a deserter and dismissed from service. The applicant has filed the present OA challenging the Summary of Evidence and the imposition of punishment by the summary trial while on active service. We have heard the learned counsel for the applicant as well as the learned counsel for the respondents and have also gone through the record.
5. The contention of the learned counsel for the applicant is two fold that the total number of days for which he remained absent was not 98 days but 19 days and therefore, imposition of punishment of dismissal from service was not proportionate to the delinquent act on his part that is to justify that he was absent only for 19 days. The applicant has drawn the attention of the Tribunal to certain documents obtained by him under the RTI Act, 2005. These are the documents which bear the endorsement of 19.05.2010 by the Unit where had reported for duty but it is his case that although the applicant's form for joining was accepted but later on it was cancelled. It has been contended that this clearly established that the number of days for which he was absent was highly exaggerated by the respondents.
6. The contention of the learned counsel for the applicant that he was absent from service for 19 days and not 98 days is without any merit. This is because of the fact that the applicant ought to have cross examined the witnesses who have testified against him and stated that he was absent for 98 days. He should have demolished their testimony by putting question to them that the applicant had reported for duty on 19.05.2010 and not that he was arrested on 26.07.2010. The plea of the applicant that he ought to have cross examined all the documents which he had got under the RTI Act which has been not been done by him. Testimony of the witnesses and the findings have gone completely unchallenged and therefore, this is only an after thought.
7. Second submission made by the learned counsel is that the applicant had not been keeping good health mentally that is the reason why he was absent and unable to resume his duty after availing of the leave granted to him. No documentary proof has been produced and shown to the witnesses who testified against him and even the statement which he has made before the Summary Court Martial recorded the fact that he was not under any medical supervision, insanity or mental equilibrium. On the contrary in the statement that the applicant has stated that he did not join his duty because of certain family problems. That being the stand of the applicant, the plea which he sought to be raised now that he was unable to join the duty is totally misconceived.
8. The applicant is a member of uniform force, where certain regularities/discipline have to be followed by a soldier. In the instant case, the respondents have contended that this is not a one of the stray cases where the applicant has absented but as a matter of fact, the applicant has been a habitual absentee. He has been absent on as many as 6/7 times in the past. Persons who are habitual absentee have no place in a uniformed service.
9. For the aforesaid reasons, we feel that the application of the applicant is totally misconceived and accordingly deserves to be dismissed. Ordered accordingly.
10. Let the record be consigned to the Record Room.
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