UNION OF INDIA Vs. CHITTA RANJAN MAITY

JUDGEMENT

(1.) This appeal is directed against the judgment and order of a learned single Judge of this Court dated 12th Sept., 1989 passed in writ petition registered as Civil Rule No. 13037 (W) of 1986, whereby and under the writ petition was allowed in part and the appellants were directed to treat writ petitioner discharged from services instead of dismissal.

(2.) The writ petitioner was enrolled in the Indian Army on 24th July. 1973. He got married in May., 1976. He was owner of 10 acres of land, 4 big fishing ponds, 1 bamboo garden and 1 coconut garden. The wife of the writ petitioner was unable to look after the said properties. The writ petitioner was unable to look after the said properties. The writ petitioner thus, on 4th Nov., 1980 applied for discharge from his service. Before the said application could be considered, on 30th Nov., 1980, without intimating anyone, the writ petitioner left. During the period between 1973 and 1980 on two occasions the writ petitioner overstayed his leave and accordingly was twice awarded punishment of 28 days imprisonment in Military Custody. Since the writ petitioner left on 30th Nov. 1980 without obtaining any permission, he was declared a deserter by a Court of Enquiry held on 31st Dec., 1980 in terms of Sec. 106 of the Army Act. Ultimately he was dismissed from the services with effect from 17/5/1984 under Sec. 20(3) of the Army Act. The Discharge Certificate of the writ petitioner was issued on 13th Feb., 1986 showing him to have been dismissed from services. After the order of dismissal was communicated to the writ petitioner, he made representation to the effect instead of showing him to have been dismissed it be that he has been discharged from the Army. That request was not acceded to. The refusal of the appellants to accede to the request of the writ petitioner for treating him to have been discharged instead of dismissal was assailed in the writ petition, which was affirmed on 5/5/1986. The learned single Judge who decided the matter held that the punishment of dismissal was too harsh and accordingly passed the order impugned in this appeal by following the decision of the Supreme Court in the case of Bhagat Ram v. State of Himachal Pradesh reported in AIR 1983 SC 454: (1983 Lab IC 662).

(3.) In the case of Bhagat Ram v. State of Himachal Pradesh (supra) the Supreme Court was not concerned with an army deserter. In that judgment the Supreme Court pointed out that one limb of the natural justice is proportionality of the punishment. With due respect to the learned single Judge we do not think that the ratio of the said judgment of the Supreme Court could at all be applied in the instant case and in particular in the manner the learned single Judge sought to apply the same.