Abstract.
The article makes an attempt to distinguish between two different terms but still used in an interchangeable form, ‘Desertion’ and ‘Absence without leave’. This differentiation is done with reference to a case of 1980, Captain Virendra Kumar v. Chief of Army Staff. The article addresses the above mentioned terms solely with respect to the military context. And also tries to describe the terms ‘Emergency Commissioned Officers’ and ‘Permanent Low medical category’.
Keywords used are – Desertion, Army Act 1950, absence without leave, Animus Deserendi, medical category, termination, emergency commissioned officers, and so on.
Research Objective.
The objective is to study section 38 and section 39, of the Army Act, 1950.
Statement of Problem.
The problem revolves around the ambiguity that prevails while differentiating between the desertion of a person and the person’s absence without leave, solely with respect to the Indian Army and its established protocols.
Research Question.
Under what circumstances is an official termed as ‘Deserted’ or ‘Absent without leave’.
Research Hypothesis.
Drawing clear distinctions between the two provisions will lead to a better understanding of the two ‘ambiguous’ terms.
Methodology.
The research methodology followed is strictly Doctrinal, combined with Analytical. As the study and in-depth analysis of the concerned provisions is done.
I : INTRODUCTION.
The study is about the section 38, and 39 of the Army Act 1950, that is done particularly with reference to the case of Capt. Virendra Kumar v. Chief of Army Staff[1] (Civil No. 475 of 1976). Sections 38 and 39 of the Army Act, 1950 talk about ‘Desertion’ and ‘Absence without leave’. Moreover, these two sections are often read with sections 105 and 106 of the Act. This should be noted that these two issues are being referred to, in the context of Indian Army. And, the case if Capt. Virendra Kumar acted as the medium for the court to interpret the provisions taking the present Scenario of ambiguity into consideration. The Captain filed a writ petition questioning his discharge from the duty, on September 30, 1970, at the Delhi High Court, that Petition got rejected. After which, he further appealed in the Supreme Court, whose judgment was delivered on April 22, 1980. Captain was treated as a ‘deserter’, but not deemed to be one.
II : FACTS AND TIMELINE.
Capt. Virendra Kumar was serving as an Emergency Commissioned Officer. ‘Emergency Commissioned Officer’[2] , according to the Press Information Bureau of Government of India, under the subject matter of Ministry Of Defence, these officers is the ones who are appointed only for a certain time period, duration or a specific purpose. After the completion of which, they are either released from duty or is promoted to be a Regular Commissioned Officer. They are treated equivalent to the Permanent/Regular Commissioned Officer as per Army Instructions 13/S/65. The Captain served from February 14, 1964 to September 30, 1970. He was discharged from the duty after he attained severe injuries during war, stating the grounds of being in permanent low medical category. ‘Permanent Low Medical Category’[3], can be understood as, in the context of Defense Services, there are 5 grounds for Medical Categories, namely psychological, hearing, Physical Capacity, Eye and Appendices. This further gets bifurcated to functional Categories or simple scales as 1A, 1B, 2, 3, 4, and 5. It is under the 5th scale, when a person is declared to be permanently unfit for military duties, such condition is referred to as ‘Permanent Low Medical Category’. The revocation of the service of the Captain was made by the notification of the President. This is what, according to the captain was unjust therefore he filed a writ petition in the Hon’ble High Court of Delhi whose dismissal made him appeal in the Supreme Court.
THE JUDGEMENT OF SUPREME COURT. (APRIL 22nd, 1980).
The court declared the termination to be unlawful and therefore invalid.[4] To which the court said, the only cure lies in the rejoining of the Captain in the service. It also directed the Defense authorities to clear the arrears of salary due on the Captain, from his discharge till the present date. 3 months time was given for the same. The court also made it clear that the rejoining in the service does not imply that the captain will be promoted to be a Regular officer. Hence, as per the court, he still can be released from his service anytime by the Chief of Army staff, given that the appropriate and just procedure is followed.
OCTOBER 15, 1980.
A letter was sent to the Captain by the Army Headquarters, which stated the orders for the Captain to report to the Artillery Centre, Nasik road Camp by October 30, 1980. The Captain, reported at GSO – I Artillery Directorate, for requesting an extension in the date of joining till the last week of November. The reasons cited were with respect to his medical and health conditions. One important thing to be noted there is the statement, “I convey my acceptance of the offer”[5], by the Captain which clearly shows his intentions to continue his services. But he later failed to report in the last week of November, as well.
DECEMBER 29, 1980 – FEBRUARY 2, 1981.
On December 29, the Captain got admitted in the Army Hospital, Delhi Cantonment. There, a scrutinized examination was conducted, till February 2nd. On January 31, 1981, the Army Medical Board highlighted three major medical challenges,[6] with regard to the officer,
- Old injury – Lumbar Spine
- Fracture – Clavicle
- Closed head Injury
And, soon after recommended Captain, as fit for duties not requiring,
- Severe stress
- Insurgency
- Close combat under Hostilities.
After discharge, the Captain was orally ordered to report to the Army Headquarters. To which he didn’t comply.
FEBRUARY 18, 1981.
Captain filed a contempt application whose hearing was scheduled on February 8th. Mr. Girish Chandra, the learned counsel appearing from the side of the respondents, highlighted the failure of the Captain to once again, comply with the orders, directing him to report to the Army Headquarters on February 2, 1981. He laid down a condition to report to the Military Secretary at the Army Headquarters on February 20, 1981. Fulfilling the condition, the Defense Authorities will act in accordance with the judgment of April 22, 1980.
FEBRUARY 20, 1981.
Captain reported to the Military Secretary at the Army headquarters, Delhi. On the same day he received a post carrying the cheque of Rs. 1, 54,000 stating the period as Sept. 30, 1972 till July 20, 1980. Issued under the name of Comptroller of Defense Accounts, Pune.
FEBRUARY 26, 1981.
Fresh orders issued directing the captain to report at Ambala for duty by March 7, 1981. Instructions also mentioned, until the reporting in Ambala, he was daily supposed to report to the headquarters, MS branch / MS 7A at room number B- 35, South Block. This letter was received by February 27, the captain didn’t report to Ambala instead wrote a letter to the chief of Army staff, portraying his dissatisfaction and asking him to take him back ‘in the line of his proven ability’.
MARCH 1981.
A telegram was sent, on March 14, 1981 by the 49 AD Regiment to the Captain enquiring about his whereabouts and the reasons for not reporting. On March 19, 1981, ‘and Apprehension Roll’ was issued and the commanding officer of 49 AD regiment sent a clandestine notification to the civil authorities, that are the superintendent of Police, Delhi, mentioning about the ‘Absent without leave’ with reference to the Captain. His details were given and the place of absence was stated to be Ambala, dated on March 7, 1981. On March 29, 1981 the Captain was arrested and taken to Nizamuddin Police Station and then was transported to 49 AD regiment office, and was handed over to the officer there. The tentative charge sheet was issued on that very day, according to which the Captain was charged for “deserting his service”.
APRIL, 1981.
Smt. Raksha Virendra Kumar, wife of Capt. Virendra Kumar on April 1st, 1981, filed a writ of Habeas Corpus stating that her husband was taken to an unknown destination without any other information. The court asked the Defense authorities to present the Captain in person, in the court, the next day. On April 2nd, 1981, the court further directed the concerned authorities to inform and brief, the Captains’ wife about the happenings and the procedures. And to propose a written offer to the Captain mentioning the posting. On April 15, 1981, on the final day the court decided to view in, both contempt application and the writ petition.
III : ARGUMENTS AND JUDGEMENT.
CONTENTIONS BY THE CHIEF OF ARMY STAFF.
Basically, there were four different contentions made from the side of the respondent. Firstly, Major Krishna, officiating Assistant Military Secretary, on behalf of the Chief of Army Staff claimed that the action arrest was justified under section 38, of the Army Act 1950, as the Captain was a deserter. Secondly, special reference to section 39 and 105 were given which justifies the issue of apprehension role and directing the Police authorities about the arrest. Thirdly, Captain was regarded, as stated by the authorities, you have knowingly absconded himself from duty that shows the presence of mal-intention. Fourthly, the captain was, one by one, acting contrary to the orders issued. While portraying his disregard with respect to the place of commission, where he stated ‘proven talent’. According to the Chief of Army Staff, both Nasik and Ambala were peace areas with reachable hospital facilities, therefore keeping in mind the medical condition of the Captain, he was posted to the following areas.
CONTENTIONS BY THE CAPTAIN.
The Captain just made two contentions before the Hon’ble Court. Firstly, on September 30, 1970 after his discharge by the notification of President he did not got commissioned anywhere. So the rules under the Army Act, 1950 doesn’t apply on him as he was not recommissioned after his termination. As per the process laid down under section 106 of the Act he cannot be said or deemed to be deserted as the process was not followed.
JUDGEMENT.
The dismissed Captain’s contentions by saying, with regard to the first contention, the court referred to its order of April 22, 1980 in which it clearly mentions about rejoining, so it reasons it by stating that since it was already mentioned there is no need to be re- commissioned. The order itself is enough to show that the captain was still a part of Defence service since his release was then already proven to be invalid.
And, the question of desertion will be dealt in the next section of the article.
IV : DESERTION & ABSENT WITHOUT LEAVE.
DESERTION.
The definition of desertion or ‘Deserted person’ is nowhere stated in the Army Act, 1950. Section 38 states the punishment and the consequences of desertion. According to it, ‘Desertion’ under three aspects is an offence,[7]namely:-
- Desertion on active service.
- Knowingly harbors desertion.
- Being cognizant of desertion.
All the above stated conditions offence of desertion becomes a punishable offence, under the following Act. Whereas, section 105 clearly states the procedure to capture the ‘Deserter’. According to this section, the commanding officer of that particular unit has full rights to share information regarding the deserter with the civil authorities, for the purpose of capture and they are obligated to comply and assist the capture.[8] The deserter is brought and kept into the military custody. However, the Black’s Law Dictionary[9], provides the definition of ‘Deserter’ in the Military Law (US Law). According to this definition deserter is any person who:-
- Absents himself intentionally from his duty permanent
- Runs away intentionally in order to escape from any hazardous duty.
- Appoints himself somewhere else intentionally, by not disclosing either side about the other existing occupation.
ABSENCE WITHOUT LEAVE.
Section 39 of the Army act, 1950 speaks about the condition of being absent without the grant of official leave from the duty.[10] According to it, being absent without any notification and grant of prior official leave, shall be an offense under this act. This section is also read along with, another section that is section 106,of the Act. This establishes the procedure of inquiry when an official is declared to be absent without leave. According to the section 106, if a person is absent from his or her duty without the grant of any official leave for more than 30 days. There has to be an enquiry committee set up to look into that particular case. And, if the person does not report, it is at the complete discretion of the respective fields’ or units’ commanding officer, that the person can be deemed as a ‘Deserter’. [11]
Therefore, section 38, 39, and 105 provides the meanings of the two provisions that is, ‘Desertion’ and ‘Absent without leave’. Whereas, section 106 gives, the conditions and procedures under when being absent without leave be deemed or termed as desertion.
DIFFERENCE BETWEEN DESERTION AND ABSENCE WITHOUT LEAVE.
Under the Army Act, there is no such provision that lays down a clear distinction between ‘Desertion’ and ‘Absence without leave’. Moreover desertion is not even described in the following act. But looking at the Artillery Records Instrument of 1981, Paragraph 418, make some distinction. According to this, Absence without duty is voluntarily being absent from duty without official leave or grant. While desertion is being absent with an intention to restrain from serving the duty again, that is, to quit permanently.[12] Clearly the difference exists in the presence of intention or Animus.
Similarly, one more source distinguished between them can be the Notes of section 38, in the Manual Of Army Forces. It is under AA section 38 which , again states Desertion is different from being absent without leave only if there is the presence of mal-intention of either leaving the service, permanently and not coming back or restraining/running away from any hazardous duty.[13] Moreover the Manual also says the ways to examine intention, through various gestures of the concerned officer, for instance distance from duty station, or long absence. However these are not at all conclusive in nature, therefore may vary.
CASE ANALOGY.
On examining the case of Captain Virendra Kumar, there were many instances that highlighted the fact that the Defence Authorities treated him as a deserted officer while he wasn’t deemed to be one. Even though the court did not address these issues, some instances can be,
- The issue of ‘Apprehension Roll’ that as per section 105 is issued when an officer is declared to be deserted.[14]
- The charges imposed on him, read as ” Deserting The Service”, as its title.
- On October 15, 1980, the order was issued by the Army Headquarters mentioning the next posting of the Captain. It addressed the Captain as ‘ex-Captain’ instead of the courts’ judgment that was directed towards the admission of the Captain, back in the service.[15]
In the judgment of the case, the court has re-interpreted the meaning of these already existing provisions by adding a new term to this concept, Animus Deserendi. The court said that, “the absence without knowledge can be desertion only with the presence of Animus Deserendi.” And at their own discretion, the court of enquiry established under 106 (a) can, abiding the procedure laid down, declares the person to be deserted if he doesn’t surrender.
V : CONCLUSION.
Imagine a day off from your work and you land up in jail. This is what it takes to be a part of The Indian Army. The existence of its own codified law, itself states that military holds an authoritative position in this democracy. It is surreal to see how under the ‘Army Culture’ some real big issues (as per layman’s perspective) are treated with leniency, while small issues (again, as per layman’s perspective) are addressed so strictly.
Chapter IV of the Army act stated the conditions under which an official can be subjected to a death sentence, to mention some of them, desertion, surrendering, sleeping or getting drunk on duty. Section 45 of the Act talks about “Unbecoming Conduct” according to this, if any official behaves contrary to the characters that is expected out of him and hence undermines his position, shall be liable for serving a 5 year imprisonment. Section 64, punishes the commanding officer for not addressing or acting in accordance to the complaints received from civilians for being ill-treated by his men. Another type of punishment is ‘Cashiering’[16]. The main purpose of which is to dishonor an official, who has acted contrary to Army’s code of Honor, and disgraced it by his actions. Under this, that officer is publicly paraded, his shirt untucked, his epaulettes are removed, his decorations are stripped and is said to frog March to his cell. He is also deprived of the retirement benefits. This punishment is very much stated in books, but it is unclear if it is still persists.
Army is sensitive to the issue of ‘Adultery’, especially in the case of brother officer’s wife. An instance can be, in 2017 a GCM held a brigadier liable for having Adulterous relations with the wife a colonel, he was cashiered and a 3 year imprisonment was sentenced. But now, keeping in mind the changing social milieu, the armed forces tribunals are arguing for the adoption of more lenient view in the context of Extramarital affairs.[17]
After looking at all of this, it is appropriate to say, The Army, is in itself a different world with different set of obligation to follow and different set of sanctions to be imposed. Even if one thinks, one got what it takes to be there, still it has the capacity to take whatever, one has got.
[1] Capt. Virendra Kumar v. Chief of Army Staff, (1986) 2 SCC 217 (India).
[2] https://pib.gov.in/newsite/PrintRelease.aspx?relid=155189. (Press Information Bureau, Ministry of Defence : India)
[3] https://mha.gov.in/sites/default/files/Awardingpolice_29092017_2.PDF (Ministry of Home Affairs Guidelines : India)
[4] As per the Army Rules of 1954, clause 15A talks about termination on the basis of medical condition. According to this any officer found or deemed to be unfit for the service, on medical grounds can be released from duty. This is exactly what happened with the Captain. He was released from the duty on the grounds of “Permanent Low Category Medical”.
[5] Capt. Virendra Kumar v. Chief of Army Staff, (1986) 2 SCC 217 (India).
[6] Id.
[7] The Army Act, No. 46 of 1950, INDIA CODE (1993). S. 38.
[8] The Army Act, No. 46 of 1950, INDIA CODE (1993). S. 105.
[9] HENRY CAMPBELL BLACK, Black’s Law Dictionary (2nd ed). https://thelawdictionary.org/
[10] The Army Act, No. 46 of 1950, INDIA CODE (1993). S. 39.
[11] The Army Act, No. 46 of 1950, INDIA CODE (1993). S. 106(a), 106(b).
[12] Artillery Records Instrument, p. 418 (1981).
[13] Manual of Armed Forces, The Army Act 1950, S.39(AA).
[14] The Army Act, No. 46 of 1950, INDIA CODE (1993). S. 105(1).
[15] Capt. Virendra Kumar v. Chief of Army Staff, (1986) 2 SCC 217 (India).
[16] The Army Act, No. 46 of 1950, INDIA CODE (1993). S. 71(d).
[17] Interview of Major Leetul Gogoi (may 30th, 2018). https://www-orfonline-org.cdn.ampproject.org/v/s/www.orfonline.org/research/the-armys-law-can-be-harsh-but-going-soft-can-make-things-worse/?amp_js_v=a2&_gsa=1&usqp=mq331AQCKAE%3D#aoh=15697478519565&referrer=https%3A%2F%2Fwww.google.com&_tf=From%20%251%24s&share=https%3A%2F%2Fwww.orfonline.org%2Fresearch%2Fthe-armys-law-can-be-harsh-but-going-soft-can-make-things-worse%2F
