ABHAY PADMAKAR DOLHARE Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was enrolled in the Army as General Duty clerk in Corps of signals at Aurangabad, on 12. 5. 87 and after completing his training period came to be posted at 15 Infantry' Divisional Signal Regiment, at Amritsar in september 1988. He claims to have suffered Central nervous System Seizures in 1990-91 and was therefore. Operated for Bilateral Recurrent Dislocation of shoulders Joint, in Military Hospital, Jalandhar. As a result of this operation he was primarily placed in Low Medical Category "cee" (Temporary) for six months and was thereafter upgraded to Low Medical Category "bee" (Permanent). He was continued in the same medical category and was granted sheltered appointment. In august 1992 he was posted at Signals Records at Jabalpur. He got married with pratibha @ Varsha @ Prajakta on 17. 12. 1993 while on casual leave from 13th to 27 December 1993. On expiry of the leave he rejoined his duties at Signals Records, jabalpur and again suffered from Bilateral Recurrent Dislocation of Shoulders' joint. He was therefore, admitted in Military Hospital at Jabalpur on 12. 1. 1994 and came to be transferred to the Military Hospital, Kirkee (Khadki) Pune, for major orthopaedic surgery. He was operated and hospitalised from 8. 1. 94 till the end of january 1995. After discharge from the hospital, he joined his duties at Signals records, Jabalpur and on his request he was posted to 4 Radio Monitoring Company, wanowrie, Pune in May 1995 on medical grounds for a period of two years.

(2.) The petitioner alleges that after he came to be posted at 4 Radio Monitoring company, Wanowrie, his problems started at the instance of his wife Prajakta. He claims that the respondent No. 9 started harassing, illtreating and abusing him, as a result of which he lost his mental balance on 29. 12. 95 and came to be hospitalized in the psychiatrical Ward of Command Hospital (Sourthem Command) , Pune, wherefrom he was discharged on 24. 1. 1996. On 13. 2. 96 he submitted a representation to respondent No. 5 with a copy to respondent No. 6 listing out his grievances. He claims that this representation was submitted to get protection from the illtreatment at the hands of respondent No. 9. His parents came to Pune on 14. 2. 96 and met the respondent No. 9 as well with a request to release the petitioner on authorised leave, so that he could be taken for medical treatment to Jalgaon. His leave was sanctioned from 15. 2. 96 to 14. 4. 96. On 19. 2. 96 the petitioner's parents submitted a representation to the President of India. On 14. 3. 96 the respondent No. 8 issued a telegram asking him to rejoin on 20. 3. 96, for Release Medical Board. This telegram was received by the petitioner on the same day and on 15. 3. 96 he replied it intimating his inability to rejoin as he was undergoing medical treatment. Respondent No. 8 despatched another telegram on 18. 3. 96 to the petitioner cancelling his leave and asking him to rejoin on 22. 3. 96 without fail. The petitioner did not rejoin and instead on 22. 3. 96 he submitted a detailed representation listing out his grievances of illtreatment and harassment at the hands of respondent No. 9. The respondent No. 8 addressed a letter to the District Superintendent of Police and District Collector at Jalgaon on 29. 4. 96 informing them that the petitioner was absent without leave with effect from 15. 4. 96 and to take steps to apprehend the petitioner and to hand over him to regimental centre/unit. A copy of the said letter was also addressed to the petitioner's father informing him that the petitioner had over stayed his leave from 15. 4. 96 and he was directed to report back forthwith. The petitioner's father submitted a letter to the Superintendent of Police and the Collector, Jalgaon on 6. 5. 96 stating therein that the petitioner had over stayed the sanctioned leave for justifiable reasons. A similar letter was also addressed by the petitioner to respondent no. 6 on 9. 5. 96. It would be desirable to note at this stage that in the said letter the petitioner clearly stated that till the investigations into his representations against respondent No. 1 were finalised, he ought to continue his leave for the sake of his life and the leave period may be regularised.

(3.) The petitioner did not report for duty and engaged in correspondence with the office of the President of India and other respondents. On 4. 12. 96 the respondent no. 7 addressed a letter to the petitioner's wife at her matrimonial address stating therein that the petitioner was declared as deserter from service with effect from 15. 4. 96 and the credit balance on finalisation of his accounts was Rs. 14,959/ -. She was called upon to forward an application for claiming the said amount so as to enable the office to process the case. The said letter was delivered at the residential address of the petitioner and therefore, he submitted a representation dated 20. 12. 96 to respondent No. 7 contending that he could not be treated or termed as a deserter in the absence of any procedure having been followed as required under the Army Act, 1950 and the Army Rules, 1954. The petitioner continued to engage in the war of words with the authorities and did not take any steps to either report for duty or to surrender, for almost six months. On 24. 7. 97 he submitted a representation to respondents Nos. 6 and 8 reiterating his complaints against respondent No. 9 and praying for enquiry against him. He stated in the said representation that using police force against him for securing his presence would be detrimental and against the spirit of his constitutional fundamental rights specifically when he was not a criminal and had not committed any offence. On 18. 9. 97 he sent a telegram to the said authorities intimating his willingness to join duty on assurance to justice and safety to his life. By telegraphic message dated 21. 12. 97 the respondent No. 8 called upon the petitioner to surrender to Superintendent of police, Jalgaon for onwards disposal. The petitioner did not surrender and on 11. 2. 9 he submitted a letter to respondent No. 6 requesting him to stay the departmental action against him and more particularly stating