# Ex.No.689825 F Havildar J.S. Bansal v. The Union of India and others

- **Citation:** (2002) 3 ILRA 802
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-09-10
- **Case number:** Vacation Application No. 40367 of 2002
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ex-no-689825-f-havildar-j-s-bansal-v-the-union-of-india-and-others-40003
- **Pages:** 5

## Headnote

Sri U.N. Sharma
S.C.

Army Regulation 1987- Regulation 377,
378, 379, 381- Desertion-Army Person
proceeded on 10 days leave- during
course of Journey after enjing tea lost
his memory- on 10.7.87- after being
normal approached for joining- refusal
on the pretext no documentary evidence
produced- held illegal- pertinently where
the authorities neither initiated any
proceeding
despite
of
permanent
address of the army men- where after
completing 22 years services- Petition
became entitled for the benefit of
pension and only 7 days remained in
maturity of the claim- cannot be held
guilty of desertion.

Held- Para 12,13 and 14

The petitioner had submitted a petition
dated 31.1.1995 forwarding therewith a
medical
certificate
dated
11.1.1995
issued by Dr. P.K. Sharma, Physician,
District Hospital, Agra stating that he
was suffering from psychiatric problem.
This has been rejected only on the
ground that no documentary proof for
his suffering of the above disability since
November, 1987 has been produced by
the petitioner.

The petitioner was suffering from 1987
loss of memory. He got treatment in
1995 after being find by the family
members in a band of Sadhus, hence
rejection of petition was irrational and
on irrelevant grounds.

From the aforesaid facts, it is established
that the petitioner is not at fault or guilty
of desertion. The respondents have
proceeded in the case of the petitioner
without application of mind in a very
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3 All] Ex.No.689825 F Havildar J.S. Bansal V. The Union of India and others 803
harsh perverse and the petitioner is not a
deserter.

## Text

http://www.allahabadhighcourt.nic.in
802 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
material before the Court to establish that
the respondents- writ petitioners have
been admitted against payment seats.
From a perusal of the Brochure annexed
with the affidavit filed along with Stay
Vacation Application No. 40367 of 2002
by the respondents- writ petitioners it
appears that a student was required to pay
a total sum of Rs.32,000/- per year for
free seat and Rs.68,000/- against payment
seats. The respondents- writ petitioners
have deposited the amount of fee towards
free seats only. The appellants have not
produced any document to show that the
respondent-writ petitioners have been
admitted against payment seats. The stand
taken by the respondents-writ petitioners
that they have been admitted on free seats
appears to be justified. In this view of the
matter it is held that the Vice Chancellor,
Ch. Charan Singh University, Meerut,
was well within his jurisdiction to order
transfer
of
the
respondents-writ
petitioners from the Baghpat College to
the Noida Institute.

11. In view of the foregoing
discussions,, we do not find any legal
infirmity in the order passed by the
learned Single Judge. The Special appeal
fails and is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.9.2002

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 29111 of 1995

Ex.No.6893825 F Havildar J.S. Bansal

 ...Petitioner
Versus
The Union of India and others

 ...Respondents

Counsel for the Petitioner:
Sri G.D. Mukerji
Sri Satyajit Mukerji

Counsel for the Respondents:
Sri U.N. Sharma
S.C.

Army Regulation 1987- Regulation 377,
378, 379, 381- Desertion-Army Person
proceeded on 10 days leave- during
course of Journey after enjing tea lost
his memory- on 10.7.87- after being
normal approached for joining- refusal
on the pretext no documentary evidence
produced- held illegal- pertinently where
the authorities neither initiated any
proceeding
despite
of
permanent
address of the army men- where after
completing 22 years services- Petition
became entitled for the benefit of
pension and only 7 days remained in
maturity of the claim- cannot be held
guilty of desertion.

Held- Para 12,13 and 14

The petitioner had submitted a petition
dated 31.1.1995 forwarding therewith a
medical
certificate
dated
11.1.1995
issued by Dr. P.K. Sharma, Physician,
District Hospital, Agra stating that he
was suffering from psychiatric problem.
This has been rejected only on the
ground that no documentary proof for
his suffering of the above disability since
November, 1987 has been produced by
the petitioner.

The petitioner was suffering from 1987
loss of memory. He got treatment in
1995 after being find by the family
members in a band of Sadhus, hence
rejection of petition was irrational and
on irrelevant grounds.

From the aforesaid facts, it is established
that the petitioner is not at fault or guilty
of desertion. The respondents have
proceeded in the case of the petitioner
without application of mind in a very
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3 All] Ex.No.689825 F Havildar J.S. Bansal V. The Union of India and others 803
harsh perverse and the petitioner is not a
deserter.

(Delivered by Hon'ble Rakesh 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 retire mental benefits to him after
regularizing his absence from services.

2. Facts of the case are that the
petitioner was enrolled in the Indian
Army Ordinance Corp. 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.

3. 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.

4. On 17.10.1994, the wife of the
petitioner had gone to Haridwar to attend
the funeral of her uncle. She, perchance
spotted the petitioner with memory less in
the company of Naga Sadhus and
managed to extricate her husband from
their company. The petitioner was got
treated as District Hospital Agra in
November, 1994 and when he recovered
some of his memories, the petitioner
reported at the Army Ordinance Corp.
Centre, Secunderabad on 14.11.1994 and
stayed there for about 7 days alongwith
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.

5. The petitioner was neither on the
ground of desertion as per the provisions
of section 38 AA 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 will civil
district (within Indian Union only) to
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804 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
which the recovered deserter/absentees
belongs:-

(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/absence
to unit.

381. Trial of Deserters- Under normal
circumstances trial by summary court
martial for desertion will be held by the
CO 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 OC 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 CO other
than the CO 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
Engineeers
GroupConcerned
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
Manual at any place, if such a course
appears desirable in the interest of
discipline

6. 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 deserter. If a person has
been declared as a deserter, it is reported
by express letter in Form IAFD 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
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3 All] Ex.No.689825 F Havildar J.S. Bansal V. The Union of India and others 805
followed. Neither any court of enquiry
was
held
in
accordance
with
the
provisions of section 106 AA of the Army
Act nor the petitioner was arrested or tried
as a deserter when he reported alongwith
his wife at the Army Ordinance Corps
Centre, Secunderabad. The respondents
also had the home address of the
petitioner as is clear from Annexure-2 to
the writ petition 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 Annexure CA-2 and CA3-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 AOC Centre,
Secunderabad.

7. It is wholly in- understandable
why the petitioner was not arrested when
he had reported for re-joining on
14.11.1994
and
explained
the
circumstances in which he was missing
and
issued
letter
dated
25.2.1995
declaring him to be a deserter w.e.f.
21.10.1987 why the petitioner was not
proceeded with or arrested at that time
when he had stayed for about 7 days there
and had met and explained to the various
officers and JCOs about the incident. No
reason has been given by the respondents
why mandatory procedure as prescribed
under regulations 376 to 381 were not
complied with by them at that time.

8. It is only when the petitioner
requested for his retiremental benefits that
Annexure CA-1, CA-2 and CA-3 were
issued threatening the petitioner with dire
consequences of arrest and rigorous
imprisonment for 10 years.

9. It is not intentional case of
desertion. The Military authorities should
have been sympathetic to a member of
their force who had lost his memory on
home ward journey and had been found
by the wife after five years in band of
Naga Sadhus. She had got treated the
petitioner
and
immediately
reported
thereafter to the Army Ordinance Corps
Centre at Secunderabad on 14.11.1994.

10. This case can be looked from
another angle i.e. the petitioner was
supposed to retire on 31.10.1987 on
completion of 22 years of service. He was
granted annual (sic) with effect from
10.7.1987 for 10 days i.e. upto 20.7.1987.
Why would a person take the risk of being
declared a deserter when only 11 days of
his full pensionable service remained and
even otherwise also he would have retired
on 31.10.1987 and would not be declared
deserter remaining absent from his duty
without due authority for a period of 30
years days, would not be attracted as he
was to retire only after 10 days. In any
case, as started earlier, this is not
voluntary or intentional case of desertion
from services and is a case being depend
and of loss of memory. The petitioner
could not be expected to report for his
duty or even visit his house due to loss of
memory as he was not responsible for his
actions. The provisions from regulations
376 to 381 will therefore be applicable
only to cases where the person is knows
about the implications desertion and is
conscious about his acts.

11. The petitioner had submitted a
petition
dated
31.1.1995
forwarding
therewith a medical certificate dated
11.1.1995 issued by Dr. P.K. Sharma,
Physician, District Hospital, Agra stating
that he was suffering from psychiatric
http://www.allahabadhighcourt.nic.in
806 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
problem. This has been rejected only on
the ground that no documentary proof for
his suffering of the above disability since
November, 1987 has been produced by
the petitioner.

12. The petitioner was suffering from
1987 loss of memory. He got treatment in
1995 after being find by the family
members in a band of Sadhus, hence
rejection of petition was irrational and on
irrelevant grounds.

13. From the aforesaid facts, it is
established that the petitioner is not at
fault
or
guilty
of
desertion.
The
respondents have proceeded in the case of
the petitioner without application of mind
in a very harsh perverse and the petitioner
is not a deserter.

14. In view of the above, the writ
petition succeeds and is allowed. The
impugned order dated 19th July, 1995 is
quashed. The respondents are directed to
pay all the retiral benefits to which the
petitioner would have been entitled had he
not been declared as a deserter. No order
as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.9.2002

BEFORE
THE HON'BLE B.K. RATHI, J.

First Appeal From Order No. 1673 of 2002

Shoib Ullah and others
...Appellants
Versus
Bhartesh Chandra Jain and another

 ...Respondent
Counsel for the Appellant:
Sri Vishnu Gupta

Counsel for the Respondents:
Sri Sidheshwari Prasad
Sri Someshwari Prasad
Sri A.S. Dubey

Code of Civil Procedure - Order 43 r. 1
(U)- Desecriation exercised by Trail
Court-
deciding
particular
issue
as
Preliminary issue- being suit barred by
section 67 of the Act- can not be
interfered by the first Appellate Court.

Held- Para 13

The above decisions does not leave any
room for doubt that the Court has
discretion to decide even an issue of law
with other issues and it is not obligatory
on the Trail Court to decide an issue of
law on which the case may be disposed
of as preliminary issue. However, these
authorities are absolutely of no help to
the plaintiff respondent no. 1. The
reason is that in this case the Trial Court
exercised discretion in favour of the
appellants and decided an issue of law as
preliminary issue. It has also recorded a
finding on that preliminary issue against
the opposite party no. 1. Therefore, there
can be no reason for the first appellate
court to interfere in the discretion of the
trial court.
Case law discussed
AIR 1991 Alld. 89
AIR 1988 Alld-299

(Delivered by Hon'ble B.K. Rathi, J.)

1. This First appeal from order under
Order 43 Rule 1 (U) of C.P.C. has been
preferred
against
the
order
dated
16.7.2002 passed by VIIth Additional
District Judge, Allahabad in Civil Appeal
No. 27 of 2000. The facts necessary for
the disposal of this Appeal are as follows .

2. The respondent no. 1 filed the
Suit No. 550 of 1998 in the Court of Civil