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Judgment
Deepak Gupta, C.J.
By means of this petition, the petitioner has prayed that the order declaring her husband to be a deserter be quashed and set aside and all consequential benefits be granted to her. The undisputed facts are that Lt. Nitya Ranjan Das was enrolled in the Assam Rifles on 30th September, 1985. He served the Assam Rifles for more than 18 years and was promoted to the rank of Havildar. On 15.12.2003 Nitya Ranjan Das proceeded on leave duly sanctioned to him. This leave was to come to an end on 26th December, 2003. However, Nitya Ranjan Das never rejoined service. He unfortunately expired on 17th February, 2005. Thereafter his widow was paid some of the dues payable to her but her request for pension and other benefits was turned down on the ground that since her husband had been declared to be a deserter, this amounted to dismissal from service and all his rights to get pensions were forfeited.
The petition was originally filed on certain other grounds but on 22nd July, 2014 learned counsel for the petitioner had prayed that he may be permitted to amend the petition to challenge the order, whereby the deceased husband of the petitioner was declared to be a deserter. The prayer for amendment was allowed and the amended petition was filed. Thereafter, two opportunities were granted to the respondents to file reply but they have not done so till date. The allegation of the petitioner is that her husband was never served with any communication or order declaring him to be a deserter. As stated hereinabove, no reply has been filed to the amended writ petition but along with the reply filed to the original writ petition, certain documents have been attached. The first is an apprehension roll for overstaying leave. This is a letter sent on behalf of the Commandant of the Unit to the Superintendent of Police, South Tripura, wherein it is stated that Nitya Ranjan Das had overstayed his leave and had not returned back. His home address and the name of his wife (petitioner) was given in the communication. The police were asked to apprehend the said person. Other than attaching this letter, the respondents have not placed on record any material to show as to what was the response of the Superintendent of Police, South Tripura to this communication. The 2nd communication placed on record is dated 5th March, 2004 and it only states that Nitya Ranjan Das was declared deserter w.e.f. 27th December, 2003. However, the order, if any, declaring him to be a deserter is not placed on record.
The case of the respondents appears to be that the communication dated 5th March, 2004 itself is a declaration of the petitioner as a deserter.
It is not disputed that the Army Act and the Rules framed thereunder are also applicable to the Assam Rifles. In this regard, we may make reference to Section 106 of the Army Act, 1950 which reads as follows:
Inquiry into absence without leave.-- (1) When any person subject to this Act has been absent from his duty without due authority for a period of thirty days, a court of inquiry shall, as soon as practicable, be assembled, and such court shall, on oath or affirmation administered in the prescribed manner, inquire respecting the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or necessaries; and if satisfied of the fact of such absence without due authority or other sufficient cause, the court shall declare such absence and the period thereof, and the said deficiency, if any, and the commanding officer of the corps or department to which the person belongs shall enter in the court-martial book of the corps or department a record of the declaration.
(2) If the person declared absent does not afterwards surrender or is not apprehended, he shall, for the purposes of this Act, be deemed to be a deserter.
A bare perusal of the aforesaid Section shows that when a person subject to the Army Act abstains from duty without taking permission for a period of 30 (thirty) days, a court of inquiry should be assembled. The said court of inquiry should record evidence on oath or affirmation regarding the absence of the said person. This court of inquiry is also to look into other matters with regard to the arms, ammunition, equipment etc. which may be in custody of the said person. Only if the court of inquiry is satisfied that the absence is without due authority or other sufficient cause, the court shall declare such absence and the said deficiency, if any, to the Commanding Officer. Sub-section (2) of Section 106 Act clearly provides that if the person so declared to be absent does not afterwards surrender or is not apprehended, he shall, for the purpose of this Act be deemed to be a deserter.
Section 106 of the Act contemplates an inquiry. The rules of natural justice have to be read into each and every statute unless specifically excluded. When the court of inquiry has to satisfy itself about the sufficient cause, if any, for the absence it obviously means that such court of inquiry has to be held after due notice to the officer against whom such inquiry is to be held.
Reference in this behalf may also be made to Rule 183 of the Army Rules framed under the Army Act which reads as follows:
Court of inquiry as to illegal absence under section 106.--
(1) A court of inquiry under section 106 shall, when assembled, require the attendance of such witnesses as it think sufficient to prove the absence and other facts specified as matters of inquiry in that section.
(2) It shall take down the evidence given it in writing and at the end of the proceedings shall make a declaration of the conclusions at which it has arrived in respect of the facts it is assembled to inquire into.
(3) The commanding officer of the absent person shall enter in the court-martial book of the corps of department a record of the declaration of the court, and the original proceedings will be destroyed.
(4) The court of inquiry shall examine all witnesses who may be desirous of coming forward on behalf of the absentee, and shall put such questions to them as may be desirable for testing the truth or accuracy of any evidence they have given and otherwise for eliciting the truth, and the court in making its declaration shall give due weight to the evidence of all such witnesses.
(5) An oath or affirmation shall be administered to the witnesses in the manner specified in rule 181.
A careful analysis of Rule 183 shows that the court of inquiry which assembles to conduct an inquiry in terms of Section 106 of the Act should examine some witnesses to prove the absence and that it was unauthorized. The court of inquiry is required to take down the evidence given to it in writing and thereafter, it must make its declaration of the conclusions on the basis of such evidence. The court of inquiry must examine all witnesses who may be desirous of coming forward on behalf of the absentee. This means that either the absentee has to be given notice or even if the absentee does not appear, a general notice may be issued in the Unit so that if any other colleague wants to give evidence in favour of the person declared to be absenting without any authority must also be examined. The sanctity of this court of inquiry is important because this court of inquiry has been empowered to administer an oath to the witnesses.
Under sub-rule (3) of Rule 183 once the Commanding Officer has made entry in this regard in the court-martial book of the corps of department or record of the declaration of the court of inquiry, the original proceedings may be destroyed. Before us neither the original proceedings nor the entry, if any, made in the court-martial book has been produced, nor any copy thereof has been produced. Therefore, as far as this Court is concerned, there is no material before us to show that any court of inquiry as contemplated under Section 106 was ever held.
We would also like to clarify that if after the court of inquiry has given its findings under Section 106(2) of the Act, it is only if the officer still does not surrender or is not apprehended that he can be deemed to a deserter. This obviously contemplates that after the court of inquiry is held, a communication shall be sent to the apprehending authority with copy to the person, who has absented himself without due authority and without sufficient cause. It is only after the court of inquiry has been held and the person has been declared to be overstaying leave without due authority or without sufficient cause that notice should be issued to the said person and also to the apprehending authority. If still the petitioner does not appear then he is deemed to be a deserter. In the present case, there is no order under Section 106 of the Act and therefore, in our considered view the deceased was never declared be a deserter in accordance with law. In the main petition it was alleged that Nitya Ranjan Das was seriously ill during this period and therefore, could not rejoin duties. We are not going into this aspect of the matter because we have held that he was never declared a deserter. Therefore, the writ petition is allowed and the letter dated 25th January, 2008 is quashed. Nitya Ranjan Das shall be deemed to be in service till 26th December, 2003, the date till which he was on authorized leave. The petitioner-widow shall be entitled to all consequential benefits including pension etc. The monetary benefits be paid to her along with interest @ 9% p.a. latest by 30th April, 2015 from the date when the amount fell due. In case, there monetary benefit are not paid to her by that date, the future interest w.e.f. 1st May, 2015 shall be @ 12% p.a.
With these observation and direction, the writ petition is disposed of.