KATHI DANIEL Vs. CHIEF OF THE ARMY STAFF

JUDGEMENT

(1.) The petitioner in this present writ petition challenges the order of dismissal passed by the authorities dismissing him from service with effect from 20th April 1992 under Section 20 (3) of the Army Act, 1950 and Order 439 of 63.

(2.) The facts leading to the filing of this writ petition are: The petitioner was appointed as a Sepoy Clerk initially in 1978. He was promoted as Naik, Lance Naik and Havaldar. He had put in twelve years of service. He had good record of service. While so, in February 1989, he received a message from his home town that his presence was necessary on account of domestic problems. Therefore, the petitioner filed an application to the Commanding Officer on 10-2-1989 for grant of leave, which was refused by the Commanding Officer. At the time when he made the application for leave, the petitioner had 48 days of leave to his credit. Since he received a message that his presence was necessary at his home town, he was compelled to leave the station, and thus stayed away from the place of duty for sixty five days. Thereafter, he reported for duty to the Head quarters, Lucknow requesting for posting, in view of the fact that the Commanding Officer was ill-disposed towards him and he refused the leave which he sought for in February 1989. The Administrative Officer refused to entertain the request of the petitioner to treat the period as duty. On 23-4-1991, a reply was received from the Lucknow Office stating that necessary orders of dismissal would be passed by the concerned Unit and that a sum of Rs.22,000/- would be recovered from his salary towards the amount alleged to have been used for his personal requirement. Since the petitioner was not allowed to report for duty by the Commanding Officer at Tejpur and Lucknow, he obtained, an affidavit from the District Magistrate, Tezpur and filed the same in proof that he had reported for duty. As there was no response from the authorities, He is compelled to file the writ petition seeking a direction to the first respondent to permit him to resume duty.

(3.) The respondents filed counter-affidavit in June 1992. However, an additional counter was filed stating that the petitioner was dismissed from service in pursuance of sub-section (2) of Section 20 of the Army Act with effect from 20th April 1992. The said order of dismissal, according to the petitioner, was never sent to the home address but a copy of the said order was only served on the counsel for the petitioner in this Court In view of the said order of dismissal, it became necessary for the petitioner to amend the writ petition challenging the order of dismissal dated 21-5-1992. Accordingly, he filed an application W.P.M.P.No.l503 of 1993 for amendment. That application was allowed. One of the grounds raised challenging the dismissal order is that the respondents failed to follow the procedure laid down under Rule 17 of the Army Rules, which contemplates that a show cause notice is required to be issued to the petitioner before the order of dismissal is passed by the competent authority; therefore, the order of dismissal issued not preceded by a show cause notice under Rule 17 is not valid and inoperative and therefore, it is liable to be set aside. The learned counsel for the respondents submits that the petitioner had deserted the service in spite of the fact that his leave has been refused by the Commanding Officer; Since the petitioner formed part of a disciplinary organisation, he is not supposed to leave the station without the prior sanction of the competent authority; the act committed by the petitioner has to be viewed seriously; the personal problem alleged to have been faced by the petitioner cannot over-ride the requirements of the Defence Service. Secondly, the learned counsel submits that the writ petition is not maintainable in view of the fact that no part of the cause of action arose in Andhra Pradesh. Thirdly, he pleads that an alternative and effective appeal remedy is provided under Section 26 of the Army Act and since the petitioner failed to avail the appeal remedy, it is not open for him to approach this Court under Article 226 of the Constitution of India. The learned counsel also submits that the petitioner was considered to be a 'deserter' and in spite of the orders issued by the Commanding Officer for his arrest being a deserter, the search party could not apprenend him as he was away from the place whenever the party went for his arrest. Thus the conduct of the petitioner is also very relevant while deciding the issue.