UNION OF INDIA & ORS. versus MANOJ DESWAL & ORS.

Citation: [2015] 12 S.C.R. 942 · Decided: 28-10-2015 · Supreme Court of India · Bench: ANIL R. DAVE · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
[2015) 12 S.C.R. 942 
UNION OF INDIA & ORS. 
v. 
MANOJ DESWAL & ORS. 
·(Civil Appeal No. 5015 of2008) 
October 28, 2015 
[ANIL R. DAVE AND ADARSH KUMAR GOEL, JJ.] 
Army Act, 1950 - ss. 16, 17 - Army Rules, 1954 - r. 
c 13(3) -Army man-respondent on unauthorized leave for 108 
days- Subsequently declared deserter and discharged from 
service by Commanding Officer- Writ petition by respondent 
-
High Court quashed the discharge order since the 
respondent was not afforded an opportunity to defend his 
D case and the order was passed without isstJing any notice to 
him - On appeal, held: A person who remained absent 
unauthorized and who was declared deserter can never tum 
out to be a good soldier - Commanding Officer, as per the 
E provisions of r. 13(3) had satisfied himself about the fact that 
respondent had remained absent without sanctioned leave 
and had been declared deserter and thus, was unlikely to 
become an efficient solider- In the circumstances, no fault 
with his decision about discharging respondent from service 
F - No special notice is required to be given before discharge 
of a person who is not attested, since court of enquiry had 
already been held and respondent had been declared 
deserter- Thus, the order passed by the Commanding Officer 
was just, legal and proper - Judgment passed by the High 
G 
Court set aside. 
Ram Sunder Ram v. Union of India 2007 (13) SCC 
255: 2007 (8) SCR292; Union of India v. Dipak 
Kumar Santra 2009 (7) SCC 370): 2009 (8) SCR 
H 
281 - referred to. 
942 
UNION OF INDIA& ORS. v. MANOJ DESWAL & ORS. 
943 
CASE LAW REFERENCE 
A 
2007 (8) SCR 292 
2009 (8) SCR 281 
Referred to. 
Referred to. 
Para 10 
Para 10 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. B 
5015 of 2008. 
From the Judgment and Order dated 17.08.2007 of the 
Division Bench of Delhi High Court in Writ Petition (Civil) No. 
8400/2006. 
c 
YashankAdhyaru, Sr.Adv., R. Balasubramanian, Rekha 
Pandey, R. S. Nagar (For B. V. Balramdas), Advs. with him, 
for the Appellants. 
Anil Kumar Bakshi, Dr. Sushil Balwada, Kulbir Singh Malik, 
Advs., for the Respondents. 
The Judgment of the Court was delivered: 
D 
ANIL R. DAVE, J. 1, Being aggrieved by the Judgment 
E 
dated 17th August, 2007 delivered by the High Court of Delhi 
in Writ Petition© No. 8004 of 2006, this appeal has been filed 
by the Union of India and others. 
2. The facts giving rise t? the present litigation in a nut-
F 
shell are as under: 
Respondent no.1 was recruited and was undergoing 
training for being appointed to the post of Store Hand Technical 
(SHT) in the Army Supply Corps and he had joined his Basic G 
Military training at Bangalore on 14th August, 2004. 
Upon 
completion of the training but before being confirmed in service 
or being appointed as a soldier, he was granted annual basic 
leave for 28 days from 5th January, 2005 to 1st February, 2005. 
H 
Thereafter, he became sick and hospitalized from 4th February 
944 
SUPREME COURT REPORTS 
[2015] 12 S.C.R. 
A to Sth February, 2005. Thereafter, he proceeded on casual 
leave for 15 days commencing from 24th February to 1 Oth 
March, 2005 and resumed his service on 11th March, 2005 
and on 12th March, 2005 he requested for voluntary discharge 
. possibly because his mother was not keeping good health. 
8 Subsequently, on 14th March, 2005, he withdrew his request 
for voluntary discharge and thereafter he remained absent from 
the training without sanctioned leave from 2"d April, 2005 till 
20th July, 2005 and resumed his duty on 21st July, 2005. 
c 
D 
3. On 27th August, 2005 he had been discharged from 
service as in view of the Commanding Officer under whom he 
was working, he was 'unlikely to become an efficient soldier'. 
He had been discharged under the provisions of Army Rules, 
1954 (hereinafter referred to as 'the Rules'). Before his 
discharge, a summary enquiry had been made as he had 
remained absent unauthorisedly and in the said enquiry it was 
found that his absence was unauthorized. Looking at the fact 
that Respondent no.1 had remained absent and had not 
E resumed his duty, he was declared as deserter by an order 
dated 30th July, 2005. 
4. In the aforestated circumstances, Respondent no.1 had 
challenged the validity of his order of discharge by filing the 
F aforestated writ petition before the High Court and after 
hearing the concerned counsel,. the High Court had allowed 
the writ petition by setting aside the order of discharge dated 
27th August, 2005, but w

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