R. K. Tiwari, J. - (1.) -By means of this writ petition, a prayer for a writ of certiorari has been made for quashing the letter dated 19.7.1995 (Annexure-3) to the writ petition, issued by Army Head Quarter rejecting the application of the petitioner for retiremental benefits on the ground that he was declared as deserter. It is further prayed that respondents may also be directed to pay all retiremental benefits to him after regularising his absence from services.
(2.) FACTS of the case are that the petitioner was enrolled in the Indian Army Ordnance Corps on 13.10.1965. He was promoted to the rank of Havildar with effect from 22.4.1980 and was to retire on 31.10.1987 on completion of 22 years of service. He was retained in service for two more years on the recommendation of Screening Board for enhanced service limit. In July, 1987, the petitioner while serving in the 8th Mountain Division of the unit was granted 10 days part of annual leave with effect from 10.7.1987. On his way to home station Agra, he was offered tea in the train by some civilian passengers. After consuming the said tea, the petitioner fell asleep and thereafter did not reach home. On 17.10.1994, the wife of the petitioner had gone to Haridwar to attend the funeral of her uncle. She, per chance, spotted the petitioner with memoryless in the company of Naga sadhus and managed to extricate her husband from their company. The petitioner was got treated at District Hospital, Agra, in November, 1994 and when he recovered some of his memories, the petitioner reported at the Army Ordnance Corps Centre, Secunderabad on 14.11.1994 and stayed there for about 7 days along with his wife and a relative Parmal Singh who has accompanied them. They met the officers and J.C.Os. and explained to them the situation in which the petitioner was found by the wife after loss of memory while on homeward journey on annual leave w.e.f. 10.7.1987.
(3.) THE petitioner was neither on the ground of desertion as per the provisions of Section 38AA read with Regulations 376, 377, 378, 379 and 381 as contained in Section 3 pertaining to the deserters in the Army Regulations, 1987 nor any action was taken by the Army under Section 106 of the Army Act. Relevant Regulations 376, 379 and 381 are as under : "376. Deserters from the Regular Army.-A person subject to AA who is declared absent under AA, Section 106 does not thereby cease to belong to the corps in which he is enrolled though no longer shown on its returns, and can, if subsequently arrested, be treated by court-martial for desertion. When arrested he will be shown on returns as rejoined from desertion. 379. Reports of Recovery or Rejoining of Deserters/Absentees. -THE officer commanding unit/record office will ensure that all authorities who have been notified of a desertion are at once informed when the deserter/ absentee returns to his unit or ceases to be liable to apprehension or the fact of his fraudulent re-enrolment in another unit is discovered. This is most important and all civil districts (within Indian Union only) to which the recovered deserter/absentee belongs will give : (a) Number and date of desertion report. (b) Regimental number, rank and name of deserter/ absentee. (c) Home address (including police station). (d) Date of return of deserter/ absentee to unit. 381. Trial of deserters.-Under normal circumstances trial by summary court-martial for desertion will be held by the C.O. of the unit of the deserter. However, when a deserter or an absentee from a unit shown in column one of the table below surrenders to, or is taken over by, the unit shown opposite in column two and is properly attached to and taken on the strength of the latter unit he may, provided evidence, particularly evidence of identification, is available with the latter unit, be tried by summary court-martial by the O.C. of that unit when the unit shown in column one is serving counter-insurgency operation or active hostilities or Andaman and Nicobar Islands. In no circumstances will a man be tried by summary court-martial held by a C.O. other than the C.O. of the unit to which the man properly belongs ; a unit to which the man may be attached subsequent to commission of the offence by him will also be a unit to which the man properly belongs. TABLE Column one Column two Armoured Corps Regiment Armoured Corps Centre and School. A unit of Artillery Regimental Centre concerned. A unit of Engineers Headquarters Engineers Group, concerned. A unit of Signals Signal Training Centre, Jabalpur. Infantry Battalion Regimental Centre concerned. Gorkha Rifle battalion Gorkha Regimental Centre concerned. A.S.C. Unit A.S.C. Centre concerned. R.V. Group R.V.C. Centre. This rule is not intended to limit the power of any convening officer, who at his discretion may order trial by General, Summary General or District Court Martial at any place, if such a course appears desirable in the interest of discipline." Section 106 of the Army Act is a mandatory provision under which a court of enquiry has to be constituted whenever any person subject to Army Act has been absent from his duty without due authority for a period of 30 days or more. If the Court of enquiry finds that the act of absence is without due authority or without sufficient cause, then such person is declared as a deserter. If a person has been declared as a deserter, it is reported by express letter in Form I.A.F.D. 925 by the officer commanding the unit to various Military and civil authorities as given in Regulation 377 and thereafter provisions of Regulation 378 of the Army Act dealing with apprehension and custody of deserters follow. If a deserter is apprehended or reports for rejoining, he is tried in accordance with the provisions of Regulation 381. In the instant case, none of the procedures under Section 106 or Regulations 377, 379 and 381 were followed. Neither any court of enquiry was held in accordance with the provisions of Section 106AA of the Army Act nor the petitioner was arrested or tried as a deserter when he reported along with his wife at the Army Ordnance Corps Centre, Secunderabad. The respondents also had the home address of the petitioner as is clear from Annexure-2 to the writ petition he was informed by letter dated 25.2.1995 that he had been declared as deserter with effect from 21.10.1987 and he can be arrested/ apprehended upto ten years of the date of desertion. It is also apparent from Annexures-C.A. 2 and C.A. 3 to the counter-affidavit, letters dated 18.3.1995 and 5.5.1995 respectively that the petitioner's wife was asked to direct her husband to report to A.O.C. Centre, Secunderabad.;