When a soldier leaves for his home station but does not reach his destination, what action is taken by most of us ?
When a soldier leaves his leave station but does not reach his unit, what do you do ?
When a soldier suddenly disappears and is nowhere to be found, what action does his unit initiate ?
Most of the times, the above events result in issuance of apprehension rolls, declaration of desertion followed by notional dismissal from service after waiting for the prescribed number of years.
But in such circumstances, declaration of desertion followed by dismissal from service when a person is neither apprehended nor located is not just illegal but also unethical and unwarranted. To substantiate ‘desertion’, a wilful absence of duty and a ‘guilty mind’ is to be established and unless there is any proof to substantiate wilful absence of an individual, such cases should be declared as ‘missing’ or ‘missing presumed dead’ after due diligence and not as ‘deserters’. The stamp of desertion not only results in incorrect forfeiture of service but also denial of family pension to the family of the missing person.
Govt of India came out with very clear guidelines on the subject in the year 1988 (which can be downloaded and viewed by clicking here) in which it was provided that if an individual suddenly disappears from the place of duty or cannot be found or located, a police report should be filed and papers for family pension and other retiral benefits for the family should be processed after the lapse of one year from the date of his disappearance. Very fairly, according to the ibid govt policy, the family of the missing person is to provide indemnity bonds to the govt that in case the person reappears, the entire family pension and other retiral benefits shall be reimbursed to the Govt. Hon’ble Courts have also time and again held that the families of missing personnel (even if declared deserters and dismissed from service) are entitled to pension and other benefits in case the person remains untraced. Further the Pension Regulations for the Army provide that the past services of deserters cannot be forfeited for the purposes of pension till the time such deserters are brought before a Court Martial and convicted for the offence of desertion. Hon’ble Courts have rationally also opined that the requirement of filing a Police Report by the family is also not mandatory if an apprehension roll has already been issued by his unit since that amounts to information to the police. Needless to say, if a person remains missing, then even logically we should not declare him a ‘deserter’ unless his whereabouts are confirmed by the police or other evidence.
In fact, Para 58 of Section 3 of Army Order 1 of 2003 (AO 1/2003) clearly states that such persons can be declared deserters only after conclusive evidence to the effect is obtained.
Hence I would request all serving officers to take care of this very important and rampant issue while dealing with missing personnel in units. It is only when such personnel are declared ‘missing’ (and not ‘deserters’) that the office of PCDA(P) processes claims for pensions. Care should be taken while determining this aspect since it directly affects families who are already facing emotional plight due to the loss of the bread winner and then are deprived of their dues and pension due to this very common oversight on our part. The relevant part of AO 1/2003 and Govt letter on pension for missing personnel must be made known to all especially the clerical staff and there should be a review of all Part II Orders wherein ‘desertion’ has been published but the person concerned has neither been apprehended nor located and the police has also presented an ‘untraceable report’. In the interest of justice, such cases should be converted to ‘missing presumed dead’ even if it involves some extra efforts by way of a fresh CoI. In fact such issues should be handled by officers themselves and not left to the Head Clerk of the military establishment who would just open the Record Office Instructions and go about it in a mechanical manner without applying proper mind.
When a soldier leaves his leave station but does not reach his unit, what do you do ?
When a soldier suddenly disappears and is nowhere to be found, what action does his unit initiate ?
Most of the times, the above events result in issuance of apprehension rolls, declaration of desertion followed by notional dismissal from service after waiting for the prescribed number of years.
But in such circumstances, declaration of desertion followed by dismissal from service when a person is neither apprehended nor located is not just illegal but also unethical and unwarranted. To substantiate ‘desertion’, a wilful absence of duty and a ‘guilty mind’ is to be established and unless there is any proof to substantiate wilful absence of an individual, such cases should be declared as ‘missing’ or ‘missing presumed dead’ after due diligence and not as ‘deserters’. The stamp of desertion not only results in incorrect forfeiture of service but also denial of family pension to the family of the missing person.
Govt of India came out with very clear guidelines on the subject in the year 1988 (which can be downloaded and viewed by clicking here) in which it was provided that if an individual suddenly disappears from the place of duty or cannot be found or located, a police report should be filed and papers for family pension and other retiral benefits for the family should be processed after the lapse of one year from the date of his disappearance. Very fairly, according to the ibid govt policy, the family of the missing person is to provide indemnity bonds to the govt that in case the person reappears, the entire family pension and other retiral benefits shall be reimbursed to the Govt. Hon’ble Courts have also time and again held that the families of missing personnel (even if declared deserters and dismissed from service) are entitled to pension and other benefits in case the person remains untraced. Further the Pension Regulations for the Army provide that the past services of deserters cannot be forfeited for the purposes of pension till the time such deserters are brought before a Court Martial and convicted for the offence of desertion. Hon’ble Courts have rationally also opined that the requirement of filing a Police Report by the family is also not mandatory if an apprehension roll has already been issued by his unit since that amounts to information to the police. Needless to say, if a person remains missing, then even logically we should not declare him a ‘deserter’ unless his whereabouts are confirmed by the police or other evidence.
In fact, Para 58 of Section 3 of Army Order 1 of 2003 (AO 1/2003) clearly states that such persons can be declared deserters only after conclusive evidence to the effect is obtained.
Hence I would request all serving officers to take care of this very important and rampant issue while dealing with missing personnel in units. It is only when such personnel are declared ‘missing’ (and not ‘deserters’) that the office of PCDA(P) processes claims for pensions. Care should be taken while determining this aspect since it directly affects families who are already facing emotional plight due to the loss of the bread winner and then are deprived of their dues and pension due to this very common oversight on our part. The relevant part of AO 1/2003 and Govt letter on pension for missing personnel must be made known to all especially the clerical staff and there should be a review of all Part II Orders wherein ‘desertion’ has been published but the person concerned has neither been apprehended nor located and the police has also presented an ‘untraceable report’. In the interest of justice, such cases should be converted to ‘missing presumed dead’ even if it involves some extra efforts by way of a fresh CoI. In fact such issues should be handled by officers themselves and not left to the Head Clerk of the military establishment who would just open the Record Office Instructions and go about it in a mechanical manner without applying proper mind.
16 comments:
Dear Maj Navdeep,
Thanks for enlightening with a subject very important to human being employed under any organization for that matter. It is more so for personnel working under government.It is an eye opener.Its application with due diligence is pre-requisite but in no way one should be declared deserter which is common in practice. The onus should be on the authority to conclusively prove desertion rather than declaring missing/other presumption at the initial stage.
Definitely food for thought. To my mind, problem lies between identifying a "troublemaker" and a genuine missing person. In close knit units, it is easy to identify troublemakers and in such cases, desertion is assumed to be the natural corollary if that person goes missing, notwithstanding the circumstances. However, in case of a person with no past record assuming desertion straight away can bring harm to such person and his/her family.
I feel the genesis of desertion lies in the very nature of profession of arms where any body turning the back for whatever reason is deemed to be a "bhagoda". It would be wrong to say that onus must lie on the organization to presume innocence, however, after ascertaining the antecedents of concerned person, efforts must be made to find why a normal person has gone missing. In modern times, fast communication methods can solve this problem in a jiffy and correct action can be initiated.
In my unit a a young smart educated Brahmin from Bihar, who had got enrolled as a safaiwala and whom we had got remustered as a cook to help him had brought his wife to station without permission. He explained that she is a MBA student and they had married against the wishes of her parents so again like a good unit we tried to help him in every possible way. Later he told us that got a job as a management trainee with a good intl coy in Bombay and wanted him to leave fauj and join him. The decision was left to him to make but when he was sent to ASC centre for cook trg he deserted without any cause. His wife confirmed that he is with her in Bombay. But later his parents came up with a claim that he is married to another girl and they dont know his whereabouts. The police after 18 months returned the apprehension roll as address untraceable. What can the unit do in this case.
Dear Maj Navdeep Singh,
Thank you for educating the environment. As one reads your posts, one can't help admiring an intellect at work. Most of us wouldn't have known the spirit of the Govt letter but for you. I am sure, that by reading your blogs many of us will rise above the recriminations, that one reads almost every day about the VI CPC,and learn to act as offrs.
Thank for informing all. I have been a Chief Record Officer. I tried my best to educate every one the only meaning of 'CONCLUSIVE EVIDENCE' before a person is declared deserter/missing. But no one has time to check all these accept sending it to Record office to accept or reject. I got orders rebocked for sufficient numbers of cases and noticed that most of the Court Of Inquiries are not correct.
But the financial help which should have been given well before in all those cases were delayed due to late lodging FIR by the NOK.
lt col sks chambial
@Mike at 2.06PM
When there is conclusive evidence of desertion or the evidence of a 'wilful' act of disappearance, then desertion can be notified.
good one sir...will take care
the write up is enlightening and certainly a habit breaker,of almost instinctive declarations of desertions so rampant in the organisation,wherein presiding officers of COIs normally go almost mechanically in declaring the missing person,even in the total absence of direct or indirect evidence.It is treated to be like any other mundane activity in the unit,wherin no deviation from the singilarly predictable outcome is normally countenanced. but in your write up THE WORD RETIRAL IS SPELLED AS RETRIAL, perhaps a spill over effect of uor lingua fraca in such cases
Dear Navdeep
In a recent case in AP, an IAS officer rejoined duty after an absence of nearly 5 years.since he was a senior person no peer of his would take up a disciplinay case.ultimately i do not know what happened, but obviously nothing.
whereas in the fouj, one days unauthorised absence is treatd so seriously and severely.it is at times like this, that we feel tht there is no justice.
recently a convict in a prison passed the civil service exam and because of his good conduct also got a remission.
I read somewhere that once a person is convicted of moral turpitude)and udegoes a sentence in jail , he cannot be taken into govt govt sevice.can you enlighten me.??
Dear Navdeep,
I agree that there is a need to differentiate between a Deserter and a person gone Missing. But don't you think that chances of a person going missing, if his intentions are not maligned, is a rare possibility.
Forces have specific requirements and I feel that Military law rather helps in early settlement of cases. It MUST remain like that.
Onus of proving "missing" should rather be with the benificiaries/ relatives.
Please keep Military out of mal practices.
Very thoughtful of you ...thank you
@Gunner.
Read the relevant part of AO 1/03, all doubts on the subject shall cease to exist :-)
If there is an intention to desert, it most definitely comes to light by a thoughtfully and correctly conducted CoI. All I'm saying is that a mechanical non-application of mind leads to miscarriage of justice. It is not the responsibility of relatives to prove, it is our duty to deal with such cases judiciously, these are our men and under our care and responsibility.
Navdeep,
Your Blog deserves to be in compulsory reading for youngsters and oldsters alike. As you can see the Law and rule position is quite level headed. It is those ignorant (but unlikely to face up to it) amongst us who actually misinterpret rules and hide behind "fauj hai" attitude. Thanks for putting a correct perspective to AWOL / Desertion. I was quite uneasy concerning one-two cases. Now I know. We were wrong. We (who accepted it and did not fight for those missing) were wrong all along.
There was a jawan who was extremely sick and feeble in Nepal and was declared deserter. He came back after almost a year. Could not send a message thru anyone as he was a real remote village. Shouldn't he have been searched for instead ?
Dear Navdeep,
Sorry to digress from the subject at hand,but since this affects all, I thought I will air my views on the subject.
The sixth pay commission had recommended something akin to almost equivalent to OROP.They had recommended that the pension shall be either the consolidated one OR 50% of the minimun of the pay plus grade pay "CORRESPONDING TO THE PRE REVISED SCALE".This was also accepted by the govt.
Howevever some mandarin in the ministy realised the implication and very conveniently, with the stroke of a pen changed "CORRESPONDING" TO "IRRESPECTIVE".
This has changed the whole equation.
correct me if I am wrong.
I am surprised that none of the central govt pensioners' associations caught on to this.
Sir If a Soldiers family is living far away in a city. And their father/husband is guarding and doing its duty .. If any peroson creates problems for the soldiers family.. Is their any help they can get from military side.
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