O.A. No. 50 of 2012. Case: Prabhakar Rao Mallela Vs The GOC-in-C, The Chief Record Officer and Commanding Officer. Armed Forces Tribunal
| Case Number | O.A. No. 50 of 2012 |
| Counsel | For Appellant: R. Arumugam, K. Perumal, Zulfikar Ali Khan and J. Kalvi and For Respondents: Mr. B. Shanthakumar, SPC |
| Judges | V. Periya Karuppiah, J. (Member (J)) and Lt. Gen. (Retd.) Anand Mohan Verma, Member (Ad.) |
| Issue | Army Act, 1950 - Sections 20, 20(3), 23 |
| Judgement Date | April 18, 2013 |
| Court | Armed Forces Tribunal |
Order:
V. Periya Karuppiah, J. (Member (J)), (Regional Bench, Chennai)
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This application has been filed by the applicant praying for calling records pertaining to the dismissal order dated 20.10.2009 in No. 1029/018/NE-II/NE&PEN/Gp/2009 as informed by the second respondent vide his letter dated 07.04.2011 and to quash the same and direct the respondents to reinstate the applicant in service or alternatively to discharge him from service with honour and to grant all consequential benefits. The case of the applicant as stated in the application would be as follows:-
The applicant was enrolled in the Indian Army on 27.08.1997 in the Corps of EME as CFN/TCM(Line) and completed his training in January 2001 and was posted to 610 EME Battalion, 810 EME Workshop, C/o/ 56 APO. He served around 9 years with a clean personal record.
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He was granted casual leave for 17 days from 04.05.2006 to 20.05.2006. When he reached home, he saw his father suffering from chronic disease and was in serious condition and therefore he requested his Officer Commanding for extension of 18 days leave which was extended up to 07.06.2006. Since the applicant was the only son to his father and earning member of the family, he had to look after his sick father. The condition of his father was serious and therefore the applicant was not able to go back to his duties. The request for further extension of leave from the third respondent proved futile.
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The applicant had also requested for voluntary discharge from service for the aforesaid unavoidable circumstances. The applicant had also sustained unrecoverable mental stress and depression due to his father's illness and therefore he could not rejoin duty on the specified date. The applicant had contacted regularly with the unit seeking permission for rejoining and for treating his absence as leave. On 02.06.2009 he surrendered his ID card and CSD Smart Card along with a request letter to give him voluntary discharge from service but there was no reply for the said request. The applicant received a letter dated 06.09.2010 towards final settlement of account and asked him to send required document for payment of final settlement of accounts. However, the letter of the applicant dated 02.06.2009 was not responded but the third respondent passed an order of dismissal against the applicant.
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The applicant received a letter dated 20.11.2010 informing him that he was dismissed from service. The request of the applicant through his letter dated 02.12.2010 seeking voluntary discharge from service was not replied. Subsequent requisition sent for rejoining the service or for voluntary discharge from service was not responded. No Court of Inquiry proceedings or any order of dismissal has been furnished to him till date. The letter dated 07.04.2011 of the second respondent would indicate that the applicant was declared as deserter with effect from 08.06.2006 and thereafter he was dismissed from service with effect from 20.10.2009. Despite the applicant being in constant touch with the authorities concerned, the EME Records letter to his father dated 02.02.2007 declared the applicant as "DEAD" while he was stated to have declared as a deserter with effect from 08.06.2006.
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The learned counsel for the applicant further submits that the applicant had no red ink entries and he discharged his duties with dedication. The claim of the applicant seeking copies of the dismissal order and proceedings of Court of Inquiry were not considered by the respondents. The dismissal order passed against the applicant from service is void ab-initio and is a nullity. The first appeal was preferred before the General Officer Commanding-in-Chief on 12.10.2011 praying for setting aside the dismissal order dated 20.10.2009 and to reinstate the applicant in service or to order for voluntary discharge from service was not considered. Further the letter dated 01.10.2011 addressed to the Chief Record Officer, EME, for the same relief was not replied. Therefore he would request the Tribunal to allow the application and thereby quash the dismissal order dated 20.10.2009 as intimated by the second respondent on 07.04.2011 and to consequentially reinstate the applicant in service or alternatively discharge him from service with honour with all consequential benefits.
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The objections raised by the respondents in their counter would be as follows:-
The applicant was enrolled in the Army and he proceeded on 17 days casual leave with effect from 04.05.2006 to 20.05.2006 are true. The applicant telephoned the Officer Commanding of his unit seeking for his casual leave be converted into balance of annual leave for the year 2006 and the said leave be extended for another 18 days which was permitted up to 07.06.2006. After completion of the said leave, the applicant had again requested over telephone for more leave and as the applicant had availed his full annual leave, the applicant was directed to rejoin duty and then to proceed on leave later. The applicant did not report to his unit on the expiry of the extended leave and he over-stayed with effect from 08.06.2006. Apart from sending the telegram to his father to advice the applicant to join duty, an apprehension roll was also issued through a letter dated 21.06.2006 since the applicant did not report back to his unit. A Court of Inquiry was conducted by 147 Field Workshop and after investigation, the applicant was declared as deserter with effect from 08.06.2006. The said desertion was also published in the 147 Field Workshop Part II No. 0164/005&006/2006, dated 25.08.2006. After completion of three years from the said date, the applicant was rightly dismissed from service with effect from 20.10.2009 by invoking the provisions of Section 20(3) of the Army Act, 1950 read with Rule 17 of the Army Rules 1954.
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If at all any domestic problem had intervened in rejoining his duty, the applicant could have rejoined his duty, discussed his problem with the Officer Commanding of the Unit and thereafter would have availed his advance annual leave and casual leave of the current year but it was not done so by the...
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