EX SEPOY MADAN PRASAD Vs. UNION OF INDIA

JUDGEMENT

(1.) The present appeal is directed against the judgment and order dtd. 16/2/2015, passed by the Armed Forces Tribunal(For short "AFT"), Regional Bench, Lucknow whereby the appeal(Transfer Application No. 1227 of 2010) originally filed by the appellant as a Writ Petition before the High Court of Judicature at Allahabad(Writ Petition No. 3439 of 2003) and subsequently transferred to the AFT, which was dismissed and the orders dtd. 24/8/1999 and 4/10/2001 passed by the respondents No. 5 and 2, respectively upholding the charge levelled against him under Sec. 39(b) of the Army Act, 1950(For short "The Act") of overstaying the leave granted to him without sufficient cause, thereby dismissing him from service, were endorsed.

(2.) Briefly stated, the facts of the case are that the appellant was enrolled in the Army Service Corps(For short "ASC") on 4/1/1983 as a Mechanical Transport Driver. In the year 1998, he was initially granted leave for 39 days from 8/11/1998 to 16/12/1998. His request for extension of leave on compassionate grounds was allowed by the respondents and he was granted advance annual leave for 30 days in the year 1999, from 17/12/1998 to 15/1/1999. However, the appellant failed to rejoin duty. Claiming that his wife had fallen ill and he was arranging her medical treatment and looking after her, he overstayed the leave granted to him. The petitioner's telephonic request for extension of leave was rejected(Vide Telegram dt. 18/1/1999). However, he did not report back immediately. On 15/2/1999, a Court of Inquiry was conducted under Sec. 106 of the Army Act to investigate the circumstances under which the appellant had overstayed leave. The Court opined that the appellant be declared a deserter with effect from 16/1/1999.

(3.) The appellant finally surrendered after 108 days, on 3 rd May, 1999 at HQ Wing, ASC Centre (South), Bangalore. The charge framed against him was heard by the Commanding Officer under Rule 22 of the Army Rules on 8/7/1999. The appellant declined to cross examine any of the witnesses. After recording the Summary of Evidence, a Summary Court Martial(For short 'SCM') was conducted by the Commanding Officer, HQ Wing Depot Coy (MT), ASC Centre (South), Bangalore, where the appellant was attached. The respondent No. 5 constituted the Court to conduct SCM(On 24/8/1999) which held the appellant guilty and awarded punishment of dismissal from service.