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Judgment
OA 53/2012
Invoking the jurisdiction of this Tribunal under Section 14 of the Armed Forces Tribunal Act, 2007, the applicant has filed this application and prayed
for the following reliefs:
a) To quash the dismissal order dated not kno wn and notgiven till date.
b) Â To direct the respondents to regularized the short fall in pensionable serve and grant him pension.
c) Â Issue a order or direction commanding the respondents to discharge the applicant from service after withdrawing the order of dismissal from service as
deserter and to pay all the monitory benefits of service rendered by the applicant in the Army.â€
From the facts that have come on record, it is seen that the applicant joined the force as a Sepoy on 28th February, 1988. After undergoing requisite
training, he was posted and while working in Firozpur on 10th August, 1999 he applied for twenty days’ leave up to 29th August, 1999 and
proceeded to his home town. It is the case of the applicant that on 27th August, 1999 he is said to have reported to the Unit but was not allowed to
enter the Unit. The applicant reported to ASC Record, Gaya but nothing was told to him. Surprisingly, after 27th September, 1999, the applicant kept
quiet over the matter. He neither represented nor raised any objection to the Unit Authorities or any higher authority. Thereafter, it is the case of the
applicant that on 18th December, 2002 his wife received a letter requesting her to complete the formalities with regard to release of funds payable to
the applicant. In this it was indicated that the applicant has deserted the service and his whereabouts are not known. Immediately thereafter the
applicant is said to have approached the Allahabad High Court and made a complaint to the effect that the order dismissing or declaring him asa
deserter has not been served on him. The Allahabad High Court in an innocuous manner, without entering into the controversy on merit, directed that
the impugned order be served on the applicant. The order was passed on 22nd January, 2003 and the petition was dismissed.
Thereafter the applicant did not do anything, kept quiet again for a period of more than three years and according to the applicant on 23rd May,
2006 he went to the Record Office and in support thereof has produced a typed copy of the gate pass dated 9th May, 2005. The original of the gate
pass or photo copy is not available on record, neither is there any signature or attestation on the document by the Competent Authority. The applicant
thereafter has brought on record a leave certificate and an unsigned letter dated 23rd May, 2006 wherein the applicant’s wife was directed to
settle maturity benefit claim under the AGI Fund Scheme. Thereafter on 13th June, 2006 the final payment fund acceptance of a deserter was
forwarded to the Competent Authority with copy to the applicant’s wife. Again in the year 2006 it seems that the pension papers were forwarded
to the Record Office. However, the applicant seems to have kept quiet all along and it is, according to the applicant, on 14th May, 2009 that he
submitted some representation to the Chief of the Army Staff. However, neither the copy of the representation nor any evidence is available on
record with regard to submission of the representation. However, a typed copy of the order communicating the decision on the representation dated
13rd July, 2009 has been brought on record wherein it has been clearly indicated to the applicant that he was granted twenty days’ casual leave
with effect from 10th August 1999 to 29th August 1999, he failed to rejoin the duty on 30th August, 1999, after expiry of the leave, resultantly a Court
of Inquiry was held and he was declared a deserter on 30th August, 1999 and thereafter he has been dismissed from service. It is seen that even after
2009 the applicant again kept quiet and it was only after about three years on 2nd February, 2012 that he invoked the jurisdiction of this Tribunal.
When the matter was taken up for admission, record indicates that the matter was considered and the applicant took time to argue on the ground of
condonation of delay. However, when the applicant and his counsel did not appear when the case was taken up by this Tribunal on 23rd July, 2012,
the OA was dismissed for want of prosecution and it was only after about eight years that he sought restoration and we restored the matter on 9th
April, 2021 in MA 1321/2020 filed on 20th August, 2020 to scrutinize the records and to evaluate the question on merit.
 Today after going through the records and evaluating the merits of the matter, we find that the applicant had been discharged way back in
August 1999 and between August 1999 to January 2003, till he approached the Allahabad High Court, he kept quiet over the matter. Even after the
Allahabad High Court decided his writ petition on 22nd January, 2003, he again kept quiet for a period of more than six years up to 2009 when he is
said to have represented to the Chief of the Army Staff. This representation was decided on 13th July, 2009 and from 2009 again he kept quiet for
three years when he invoked the jurisdiction of this Tribunal in 2012 and when his Original Application was dismissed on 2nd February, 2012, he
sought restoration after eight years on 20th August, 2020.
 Now, in the application for condonation of delay filed by the applicant nothing is mentioned to indicate as to what steps or action was taken by
him for diligently prosecuting the matter. In the application for condonation of delay said to have been filed on 19th April, 2012, after narrating various
facts with regard to his service, his being declared as a deserter and dismissal, approaching the Allahabad High Court, in para 4 the applicant simply
says that he was jobless, faced financial difficulties and made complaint to the authority. Nothing is indicated in para 4 to 6 of the application
explaining the delay in the matter and what steps were taken by him between 1999 to 2012 for the redressal of the matter.
 For the sake of convenience, we would reproduce, hereunder, the averments made by the applicant in paras 4, 5 and 6 of the application for
condonation of delay:
“4. That the petitioner is jobless has no mean to spent even penny on the proceeding to complaint against authorities. The applicant kept on writing to
authorities and got response from one authority that record are sent to record office Gaya on 23.03.2008. Later on 09.06.2010, they informed no records are a
vailable.
That petitioner has hardly mean to fight the un warranted miseries of life given by respondent. The cause of action is still continuing and perpetuating. The
applicant has no mean to survive, hence failed to arrange money for legal action. Now he somehow arranged and filed the OA.
The averment made in OA may be taken as part and parcel of this application.
That in view thereof though cause of action is still going on, however if there is any delay this Hon’ble Tribunal may consider to condone by taking into
consideration my pathetic condition. The delay only cannot be solereson to deny fair justice to citizen against arbitrary & illegal action of state.â€
 In our considered view, the cause of action for invoking the jurisdiction of this Tribunal arose in August 1999 when the impugned action was
taken against the applicant. The applicant should have invoked the jurisdiction of a Court or Tribunal of competent jurisdiction within a reasonable
period, instead it is clear that the applicant kept quiet and slept over the matter.
Looking to the facts and circumstances of the case, we are of the considered view that the applicant was declared as a deserter and after
conducting a Court of Inquiry he had been dismissed/declared as a deserter in August 1999 and thereafter the applicant has not taken any steps to
ventilate his grievance either with the Competent Authority of the department or by approaching the competent Court of law within the period
prescribed under law. There is an unexplained inordinate delay and laches and the delay and laches in invoking the jurisdiction of this Tribunal has not
been properly explained in the application for condonation of delay. That apart, even on merit the applicant except for contending that he had intimated
the authorities about his wife’s accident, has not brought on record any cogent evidence or material to justify his action. That apart, now as per the
learned counsel for the respondents after a period of more than twenty two years, even the records pertaining to the matter are not available and they
are unable to defend the matter.
 Accordingly, finding no case to interfere in the matter on account of inordinate delay and laches on the part of the applicant, the OA is
dismissed.