Judgment · High Court · 2012

Heard Mr. R.P. Sarma, learned Sr. counsel for the petitioner as well as Mr. S. Chokraborty, learned counsel appearing for Mr. D. Baruah, learned CGC app earing for the respondents. By means of this writ petition, the petitioner has challenged Annexure-I II order dated 14.08.2003 by which he has been dismissed from service pursuant t o a departmental proceeding. The charge against him was that the petitioner rema ined unauthorisedly absent from duty for the period from 03.10.2001 to 14.08.200 3. The petitioner while was serving as Constable in the CRPF, was issued wi th the charge sheet dated 11.03.2003 levelling the charge of unauthorised absenc e from duty. The fact of the matter is that the petitioner was transferred from 31 Battalion CRPF to Group Centre, CRPF at Khakhati by order dated 05.09.2002. H e was also released from 31 Battalion CRPF on 30.09.2002 with a direction to re port at GC, CRPF, Khatkhati. However, availing the usual journey time, the petit ioner did not return to duty. He was to report on 03.10.2003, but without report ing for duty he remained absent unauthorisedly without furnishing any intimation to the competent authority. The petitioner was asked to resume duty by order dated 09.12.2002. It wa s also intimated that upon failure to resume duty departmental action would foll ow. The petitioner did not respond to the same and remained absent from duty una uthorisedly. Situated thus, an FIR was lodged with the police at Khatkhati. A co mplain was also lodged with the Chief Judicial Magistrate-cum-Addl. DIGP, Group Centre, CEPF, Khatkhati for issuance of warrant of arrest against the petitioner . A warrant of arrest was also issued on 17.01.2003 and the same was sent to th e Superintendent of Police, Kamrup requesting him to apprehend the petitioner. H owever, the whereabouts of the petitioner were not known and he could not be app rehended. In the aforesaid situation, a departmental proceeding was initiated agai nst the petitioner under Section 11 of the CRPF Act, 1949 on the charge that the petitioner instead of reporting for duty at Khatkhati, remained absent unauthor isedly. The memo of charges alongwith requisite annexures was sent to the petiti oner in his home address, but the petitioner did not respond to the same. Notic e of the enquiry was also issued to his home address to which also he did not re spond which naturally resulted in ex parte proceeding. Thereafter, he was dismi ssed from service by the impugned order dated 14.08.2003. In the order, the disc iplinary authority has recorded in details the relevant facts and also discussed the evidence on record. It was found that the enquiry was conducted following d ue procedure and in accordance with law. Due opportunity was also given to the p etitioner at every stage of the enquiry, but he did not respond to the same. The charge of unauthorised absence from duty having been established, the disciplin ary authority dismissed the petitioner from service. According to the petitioner, he could not join his duty as he was suffer ing from mental disorder. The story narrated in the writ petition is that after he was relieved from his original place of posting to join at Khatkhati, he fell sick (mental disorder) and he could not join at the new place of posting. It is stated that during the period of mental disorder the petitioner was roaming ar ound at Jallandhar in Punjab and eventually one of his relatives rescued him an d sent him to Mental Hospital, Tezpur. The medical certificate annexed to the wr it petition gives the testimony that such stand of the petitioner is founded on falsehood. Annexure-I medical certificate dated 04.02.2004 speaks of reporting o f the petitioner to mental hospital on 25.03.2003. Although he was advised for h ospitalisation, but he avoided the same and did not return thereafter. After nin e months, he reported to the hospital again not for any mental disorder, but for alcoholic related problem. This being the position, there is no truth that the petitioner did not resume his duty nor respond to the departmental proceeding b ecause of his illness. from service. As has been held by the Division Bench of this Court in Union of India vs. Mithilesh Singh reported in 2000 (3) GLT 62 and affirmed by the Apex Court in Mithiles Singh Vs. Union of India reported in (2003) 3 SCC 309, unauthorised absence from duty by a member of disciplined force may entail penalty of removal In that case learned Single Judge while setting aside the order of removal, directed the disciplinary authority to impose any other penalty othe r than dismissal, removal and compulsory retirement from service. Interfering wi th the said direction, the Division Bench held that a member of the disciplined force if remains unauthorisedly absent from duty, is liable to be removed from s ervice. The said decision of the Division Bench has been affirmed by the Apex Co urt. Above apart, as disclosed in the counter affidavit, the petitioner was e arlier imposed with the following punishment and the periods of earlier unauthor ised absence from duty were regularised in the following manner. DETAILS OF PUNISHMENTS i) 06 days pack drill for two hours during 1988 for an indiscipline act. After conducting a DE on the charge of 56 days unauthorised absence awar ii) ded punishment for stoppage of increment for two years with cumulative effect vi de order dtd. 18-2-1995 and 56 days unauthorised absence from 2.2.94 to 29.3.94 regularised as DIES NON. After conducting DE on the charge of 115 days unauthorised absence award iii) ed confinement to Q.G. for 28 days w.e.f. 23.2.96 vide order dated 24.2.96 and u nauthorised absence period w.e.f. 4.5.96 to 26.8.95 regularised as DIES NON. iv) After conducting a DE, on the charge of 72 days unauthorised absence awa rded confirnement to Q.G. w.e.f. 11.3.2000 to 7.4.2000 vide order dated 29.4.20 00 and absence period w.e.f. 6.5.99 to 16.7.99 regularised as EOL. v) PE for unauthorised absence from duties. 15 days confinement to line w.e.f. 5.2.99 to 19.2.99 after conducting a DETAILS OF REGULARISATION OF UNAUTHORISED ABSENCE PERIODS. i) ii) iii) iv) v) vi) vii) viii) ix) 7 days LWP w.e.f. 20.10.88 to 26.10.88. 40 days LHP with noleave salary w.e.f. 7.10.92 to 1511.92. 40 day LHP with no leave salary w.e.f. 24.9.93 to 2.11.98 5 days LHP with no leave salary w.e.f. 10.11.96 to 14.11.96 42 days LHP with no leave salary w.e.f. 07.08.98 to 17.9.98 06 days LHP with no leave salary w.e.f. 21.11.98 to 26.11.98 04 days LHP with no leave salary w.e.f. 12.03.99 to 15.3.99 34 days EOL w.e.f. 16.3.99 to 18.4.99. 34 days EOL w.e.f. 16.3.99. to 18.4.99. For all the aforesaid reasons, I do not find any merit in the writ petit ion. Accordingly it is dismissed. There shall be no order as to costs.