WP(C) 10351/2003 - Gauhati High Court

IN THE GAUHATI HIGH COURT(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,TRIPURA AND ARUNACHAL PRADESH)W.P(C) 10,351/2003Sri Kulagam Pegu,S/o Late Mirikai Pegu,R/o Vill-Bukuragaon, P.O. Rowmara,P.S. Dergaon, Dist.-Golaghat, Assam.- Versus –1. The Union of India, through theSecretary, Ministry of Home Affairs,New Delhi-110001.2. The Director General, CRPF,CGO Complex, Block No. 1, LodhiRoad, New Delhi.3. The Inspector General of Police,CRPF, Group Centre, Jallandar,Punjab.4. The Deputy Inspector Generalof Police Group Centre, Jalandar,Punjab.5. The Commandant, 128 BN,CRPF, C/o 56 APO.…Petitioner…RespondentsBEFORETHE HON’BLE MR. JUSTICE B.K. SHARMAFor the Petitioner:For the Respondents:Mr. A. Maleque, AdvocateMr. C. Baruah, CGCDate of hearing & Judgment & Order: 19.06.2012

2JUDGEMENT AND ORDER (ORAL)Heard Mr. A. Maleque, learned counsel for the petitioner as well asMr. C. Baruah, learned CGC.2. The petitioner is aggrieved by Annexure-7 order dated 30.9.2003,by which, he was dismissed from service pursuant to a departmentalproceeding.3. The petitioner was appointed in the CRPF as constable (GD) underNo. 903075844. According to the petitioner, while he was posed atJammu, he applied for earned leave of 60 days with effect from 6.2.2003to 7.4.2003 due to serious illness of his father-in-law. He was to report forduty on expiry of leave and for the purpose he had boarded a Night SuperBus on 5.4.2003, but on the way a dacoity was committed on the said busby some extremists. As a result of which, the petitioner lost all hisbelongings including his uniform. According to him, he was also physicallyassaulted and sustained grievous injuries. The incident was registered asJakhalabandha P.S. Case No. 17/2003 Under Section 395/397 IPC.4. According to the petitioner in view of the incident, he had to bereferred to Jakhalabandha PHC and he was admitted in GovernmentHospital. According to him, when he was undergoing treatment, he hadsent an application on 9.4.2003 seeking extension of leave, in which he

3had stated the aforesaid facts. It has been stated in the writ petition thathe did not keep the copy of the said application annexing therewith themedical certificate.5. The petitioner was declared deserter pursuant to Court of enquirythat was conducted for prolonged absence from duty. An order waspassed to that effect on 9.6.2003. Thereafter he was issued with thememorandum of chargesheet dated 4.7.2003 leveling the charge ofcommission of misconduct as a member of the force under Section 10(m)of the CRPF Act, 1949. The charge leveled against him was overstay ofleave with effect from 1.4.2003 without prior permission of the competentauthority. In due course, the enquiry was conducted, in which the chargeagainst the petitioner was found to have been established. Consequently,by Annexure-7 impugned order dated 30.9.2003, he was dismissed fromservice.6. According to the petitioner in view of the aforesaid incident, inwhich, he had sustained injuries resulted in failure to report for duty andas such the disciplinary authority ought not to have been dismissed fromservice on the basis of the exparte enquiry. Mr. A. Maleque, learnedcounsel for the petitioner has strenuously argued that there being nohand of the petitioner in overstaying leave because of the aforesaidincident, the disciplinary authority ought to have been exonerated thepetitioner from the charge. According to him, injustice was meted out tothe petitioner.

47. Countering the above, Mr. C. Baruah, learned CGC submits thatthere being suppression of material facts on the part of the petitioner asdisclosed in the counter affidavit, on that count alone, the writ petition isliable to be dismissed. Referring to the stand taken in the counteraffidavit, to which the petitioner has not filed any reply affidavit, he hassubmitted that the petitioner having submitted false documents toestablish the particular incident, the stand taken in the writ petition is notsustainable.8. I have considered the submissions made by the learned counsel forthe parties and have also perused the entire materials on record.9. After availing the leave referred to above, the petitioner was toreport for duty on 7.4.2003 at Transit Camp. CRPF, Jammu, but he failedto do so and overstayed leave without prior permission of the competentauthority. As disclosed in the counter affidavit, he was directed to reportduty forthwith vide letter dated 17.4.2003, but he did not do so.Thereafter vide letter dated 8.5.2003 warrant of arrest was issued againsthim. In the meantime, the petitioner had forwarded an applicationalongwith photocopy of OPD slip and connected documents for extensionof 20 days leave due to better treatment. In the said application, therewas overwriting in respect of columns like date etc. The age of thepetitioner was also indicated as 34/F years meaning thereby that the saiddocument pertained to some female patient.

510. Due to long absence of the petitioner after availing initial leave, hewas declared deserter from the Force vide order dated 15.6.2003.Thereafter the memorandum of chargesheet was sent on him, but heneither report he reported duty nor furnished any reply to the chargeleveled against him. An Assistant Commandant was appointed as EnquiryOfficer vide order dated 21.7.2003. Inspite of sending repeatedreminders, the petitioner did not report for duty. He also did not respondto the proceeding. Situated thus, exparte departmental proceeding wasconducted and concluded. A copy of the enquiry report was furnished tohim. He was also asked to submit representation, if any against theenquiry report. Thereafter the impugned order of dismissal was passed.11. Referring to earlier conduct of the petitioner, the respondents havestated in their counter affidavit that earlier conduct of the petitioner whilein service was also not good. It appears that on earlier occasions also, thepetitioner had overstayed leave. He was imposed with 7 days confinementfor misbehaving with seniors. He was also imposed with 30 daysconfinement for overstaying of leave.12. In paragraph 6 of the counter affidavit, the respondents havestated that the petitioner in his representation dated 23.9.2003 hadmentioned that he was under treatment at Civil Hospital, Jakhalabandhawith effect from 5.4.2003 to 8.4.2003 and 9.4.2003 to 15.9.2003 atMismoda PHC Hospital, Golaghat. According to his representation, he was

6declared medically fit to resume duty on 15.9.2003, but on the other handhe started journey on 12.9.2003.13. Above apart, contrary to his stand that the bus in which he wastraveling was attacked by extremists, the petitioner in his representationstated that on 11.4.2003, terrorists had come to his house and threatenedto kill him. With such contradictory statement, the petitioner wanted tocover up the period of absence.14. If the petitioner remained absent from duty unauthorisedly, as hasbeen held by this Court in Union of India Vs. Mithilesh Singh,reported in 2000 (3) GLT 62 unauthorized absence by a member of thedisciplined force may entail dismissal from service. That decision of theDivisional Bench of this Court has been affirmed by the Apex Court inMithilesh Singh Vs. Union of India reported in (2003) 3 SCC 309.The Apex Court has observed that unauthorized absence from duty bymembers of disciplined force is a serious misconduct and no fault can beattributed to the employer in respect of imposition of penalty ofremoval/dismissal from service. In the instant case, the petitioner, amember of disciplined force not only overstayed leave unauthorisedly butalso took recourse to suppression of facts to the extent of submission offalse documents. He also made contradictory statement in hisrepresentation with two stories.

715. As noted above in the first story he had stated that the bus, inwhich he was traveling, had been attacked by the terrorists, but in thesecond story, he stated that terrorists came to his house and he wasattacked by militants and he was also threatened with dire consequences.16. If the above was the conduct of the petitioner, I see no reason asto why the disciplinary authority could not have taken the decision ascontained in the impugned order.17. For all the aforesaid reasons, I do not find any merit in the writpetition and accordingly it is dismissed. However, if the petitioner isentitled any dues irrespective of the impugned order, the respondentsshall pay the same as expeditiously as possible.18. Writ petition is dismissed, without, however, any order as to costs.JUDGEMkk