The soldier, Om Prakash Pradeshi from Himachal Pradesh, was enrolled in the Corps of Military Police (CMP) in September 1969. When he went missing in November 1980, and in December 1983, after the stipulated three-year period, the Army declared him a deserter and dismissed him from service. Consequently, he or his next of kin were not granted pension.
The Tribunal’s Chandigarh Bench comprising Justice Umesh Chandra Sharma and Lt Gen Ranbir Singh held that there is no evidence that the Army or, on their directions, the civil authorities ever tried to search the individual as to whether he is alive or not and whether he was seen by anyone just before his disappearance. There is also no evidence that the individual is alive and is living or working somewhere else or he voluntarily abandoned his service
Observing that after seven years from the date of missing, the presumption of death would arise under Section 108 of the Indian Evidence Act and there is not an iota of evidence that the individual was ever seen alive within 30 years, the prescribed period under the Act, the Bench said that it can be inferred that he was no more.
The Bench also rejected the claim of the respondents that Pradeshi is alive and he had voluntarily deserted the service. “In such a condition, the burden of proving that he is alive is shifted to the respondents who affirm his aliveness,” the Bench said.
Ruling that the court is of the considered view that it is not proved that the individual had the intent to desert or he was alive and even then he did not join the service, the Bench inferred that due to unavoidable circumstances and circumstances which were beyond his control, he could not join the service. Hence, he cannot be said to be deserter.
Holding that accordingly, the order of the Court of Inquiry declaring him deserter and on its basis, the order of dismissal from the service is liable to be held illegal and void, the Bench said that it is a direct example of the negligence of the authorities who never tried to search out the individual or take any pain for knowing his whereabouts.
“The order dated 03.12.1980 and 22.12.1983 regarding declaration of desertion and dismissal of the applicant’s husband Om Prakash Pradeshi along with the letter dated 23.09.2020 are hereby quashed. The applicant’s husband Om Prakash Pradeshi is presumed to be dead since 03.11.1987, after completion of seven years from the date of his missing,” the Bench ruled.
“As a result, the applicant is held entitled to all the service benefits obtained in colours and reserve and also the family pension in accordance with law. Since the applicant first sent the letter to CMP Records on 03.03.1993 and started claiming family pension and other monetary benefits hence, the applicant is entitled for the pension and other benefits as an NOK of a missing Army Personnel since then,” the Bench said.