DOLHARE ABHAY PADMAKAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner was enrolled in the Army as General Duty Clerk in Corps of signals at Aurangabad, on 12/5/1987 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 (Southern 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.) AN affidavit in reply on behalf of the respondents Nos. 1 to 8 has been filed by a Lt. Col. Dhinachand Dogra, Station Headquarter at Aurangabad. It has been contended in the said affidavit that as per A.O. No. 46/80 as no sheltered appointment was available in the unit for the petitioner, a discharge order was issued by Singnals Records and therefore, the petitioner was required to report to the concerned office on 17-7-96 for discharge formalities, which was a reason for cancellation of the petitioners leave by telegram dt. 14-3-96. As the petitioner failed to rejoin pursuant to the recall, he was declared a deserter after expiry of leave granted to him. It is further stated that as the petitioner had not completed requisite service he was not entitled for any pensionary benefits and as on the date of the submission of the affidavit the petitioner was a deserter and he was required to submit before the Army authorities. This affidavit in reply has been presented before us on 10-1-2000 and there is no other affidavit stating the reason or circumstances in support of the order of dismissal passed U/s 20(3) of the Army Act. The affidavit in reply filed indicates that as on 10-1-2000 the petitioner was required to surrender. The petitioner has filed written pleadings in support of his contentions that the order of dismissal is illegal and contrary to the provisions of the Army Act and rules thereunder.