JUDGMENT K.C. Sood, J. (Oral): This petition under Articles 226 and 227 of the Constitution of India was filed by the general duty Constable Raj Kumar who was employed in Indo-Tibetan Border Police ("ITBP" for short). He was removed from the service w.e.f. 8th May, 1998 by impugned order of the even date (Annexure-PX). The period of his absence w.e.f. 25.6.1997 to 8.5.1998 was treated dies non for all purposes. 2. Raj Kumar expired on 5th October, 2000 during the pendency of this petition. He was substituted by his legal heirs, the present petitioners, Smt. Parwati Devi and Sohan Singh, mother and father. The petitioner pray for the following reliefs - 1. "Order dated 8th May, 1998, (Annexure PX) and Show Cause Notice (Annexure PT) dated 6th December, 1997, and Order dated 24th January, 1998 (Annexure PU) be quashed. 2. The respondents be directed to pay to the petitioner his pay and allowances wrongly with held by them. 3. The respondents be directed to accept the joining report of the petitioner dated 12th July, 1998, along with the Medical Certificate (Annexure PY and PZ) with effect from 12th July, 1998 and treat him on duty throughout, from 23d April, 1997. 4. The respondents be directed to immediately pay to the petitioner is (?) medical claim. 5. The respondents be directed to produce the whole record relating to this case for the perusal of this Honble Court. 6. Any other writ, order and direction which is Honble Court may deem fit in the facts and circumstances of this case, may also be granted." 3. In order to appreciate the controversy relevant facts may be noticed; 4. Raj Kumar was recruited as Constable "General Duty" in ITBP on 23rd December, 1994. In the year 1995, when he was undergoing Commando Training with 9th Battalion, ITBP at Ramgarh, he suffered from breathlessness and was referred to Command Hospital (Western Command). Chandimandir and diagnosed as a case of "Post Tubercular Encysted Empyema (LT) Lung. On 8th June, 1996, after completion of his training, he was posted in 7th Battalion, ITBP, Reckong Peo. It appears, in view of the findings of the Command Hospital at Chandimandir he was referred to Base Hospital for review and his re-categorisation. In February, 1997 he was placed in Medical Category "EEE" and was recommended to be boarded out from the service by the Medical Specialist. It appears, in view of the findings of the Command Hospital at Chandimandir he was referred to Base Hospital for review and his re-categorisation. In February, 1997 he was placed in Medical Category "EEE" and was recommended to be boarded out from the service by the Medical Specialist. A Medical Board was convened on 8th February, 1997 which recommended the boarding out of Raj Kumar from service. The petitioner appeared before the Invalidation Board at Sarahan on 12th April, 1997. The Invalidation Medical Board agreed with the opinion of the Medical Specialist. 5. Raj Kumar, under Rule 26(3) of the ITBP Rules, 1994, hereinafter referred to as the "Rules", was to be informed about the findings of the Invalidation Board, Raj Kumar, however, was not informed about the findings of the Medical Board held on 12th April, 1997. On 13th April, 1997, Raj Kumar was brought to the Unit Hospital at Reckong Peo in "semi-unconscious condition". The Doctor of the Unit Hospital was on leave. Sub Inspector (Pharmacist) referred him to District Hospital, Reckong Peo. Raj Kumar was discharged from District Hospital, Reckong Peo on 17th April, 1997 with an advice for reference to Indira Gandhi Medical College Hospital at Shimla (Anmexure-PB). Inspite of the clear advice of the District Hospital, Reckong Peo, Raj Kumar was not referred either to Indira Gandhi Medical College or Army Hospital. The Unit Medical Officer (respondent No. 3) made provisional diagnosis of Conversion Disorder1 and admitted Raj Kumar in Unit Hospital for observation. The condition of Raj Kumar deteriorated. 6. Looking to the deteriorating condition of Raj Kumar, a fellow Constable telephoned to his maternal uncle Inder Singh at Shimla about the deteriorating condition of Raj Kumar. Inder Singh came to Reckong Peo and found Raj Kumar in a serious condition. The Unit Doctor, however, insisted that there was nothing wrong with Raj Kumar and he was only malingering. Inder Singh telephoned the father of Raj Kumar, who immediately rushed to Reckong Peo. Father of Raj Kumar once again requested the Unit Doctor (respondent No. 3) to send Raj Kumar to Indira Gandhi Medical College, Shimla as his condition was precarious. Respondent No. 3 did not oblige. Inder Singh telephoned the father of Raj Kumar, who immediately rushed to Reckong Peo. Father of Raj Kumar once again requested the Unit Doctor (respondent No. 3) to send Raj Kumar to Indira Gandhi Medical College, Shimla as his condition was precarious. Respondent No. 3 did not oblige. Even though District Hospital at Reckong Peo had advised immediate reference of Raj Kumar to Indira Gandhi Medical College The Unit Doctor was in-different and informed the father of Raj Kumar that Raj Kumar was due for invalidation and he can take him to Indira Gandhi Medical College, Shimla and would not refer him to Indira Gandhi Medical College, Shimla, but his father was free to take him to Indira Gandhi Medical College, Shimla, after applying for leave for his son at his own responsibility. The father had no choice but to comply. He, accordingly applied for the grant of 30 days leave to his son (Annexure-PC). He also appended a note that he was taking his son against his advice. 7. Raj Kumar was sanctioned 30 days leave w.e.f. 23rd April, 1997 to 27th May, 1997, including two days of journey. On the very next day Raj Kumar was admitted as emergency case in Indira Gandhi Medical College, Shimla by OPD slip (Annexure-PF). An emergency operation was performed on the same evening to take out the; from his brain. He remained under treatment with the Indira Gandhi Medical College Hospital till 11th July, 1998. 8. When Raj Kumar was under treatment, respondent No. 2 directed Raj Kumar to report for duty by a letter dated 1st September, 1997 (Annexure-PL). On 27th October, 1997 a Memorandum was addressed to Raj Kumar at his home address saying that he was absent without leave or intimation w.e.f. 26th June. 1997 and that inspite of his letter dated 10th September, 1997. he failed to submit documents relating to his medical treatment and therefore, he should report to the Battalion Headquarters within fifteen days of the receipt of the letter Raj Kumar wrote back to the Commandant informing him that he had sent four letters after 26th June, 1997 and in these letters he had requested for medial leave on account of his inability to join the Uni due to his illness. He also informed the Commandant that his maternal and paternal uncle had both called in the Unit and had also given his application for leave. His letter (Ex.PN) reads: "Sir, I am not well so far and medical treatment is in progress. I am continuously taking medicines. I have already informed you that I am under treatment of Indira Gandhi Medical College. I shall report in the Unit as soon as I am declared fit. As of now I am unable to walk. I had submitted my medical bills for sanction. I shall be soon sending the medical certificate also and would report for duty in the Unit when I am declared fit by the doctor." 9. It is noticed that Raj Kumar in a letter had referred to the photostat copies of the documents relating to his treatment which he had been undergoing and which he had sent to respondent No. 2 in June, 1997. He also enclosed Medical Certificate from 24th April, 1997 to 30th May, 1997 with the request that his leave may be sanctioned (Annexure-PO). Neither leave was sanctioned nor the medical bills were passed. By letter (Annexure-PN) Raj Kumar clearly informed that he shall report to the Unit as soon as he is declared fit by the Medical Officer. He also stated that he was not able to walk and would report to the Unit when he is declared fit by the concerned Doctor along with the Medical Certificate. 10. By another registered letter (Annexure-PP) Raj Kumar submitted his bills requesting that these bills may be passed at an early date and that he has not been reimbursed the amount of the earlier bills. He implored respondent No. 2 that all his bills may be cleared. Respondent No. 2 by his letter dated 1st December, 1997, (Annexure PQ), in reference to the letter dated 3rd November, 1997, once again insisted that Raj Kumar should report for duties along with documents relating to his medical treatment. 11. It is difficult to understand how Raj Kumar could have reported for duty when he was unable to walk, getting treatment from the Indira Gandhi Medical College. This fact was well known to respondent No. 2. 12. In appears, Inder Singh, maternal uncle of Raj Kumar came to Reckong Peo contacted the office of respondent No. 2. 11. It is difficult to understand how Raj Kumar could have reported for duty when he was unable to walk, getting treatment from the Indira Gandhi Medical College. This fact was well known to respondent No. 2. 12. In appears, Inder Singh, maternal uncle of Raj Kumar came to Reckong Peo contacted the office of respondent No. 2. He was informed that the letters sent by Raj Kumar were not received in the office of respondent No. 2. In the circumstances, Raj Kumar, once again applied for the grant of leave. He then applied to the Post Master to know what had happened to his registered letter. Post Master, Head office, Shimla, informed Raj Kumar (Annexure-PS), the aforesaid letter of 7th June, 1997 in fact was delivered to the addressee at Reckong Peo on 9th June, 1997. 13. Respondent No. 2 instead of taking a view, in the light of the correspondence exchanged, informed Raj Kumar that he has been declared medically unfit for further service and therefore, he should report for duty within fifteen days from the date of Memorandum dated 6th December 1997 (Annexure-PT). 14. On 24th January, 1998 Raj Kumar was declared deserter on the ground that he was granted leave from 26th April, 1997 to 25th May, 1997 and extension of leave from 26th May, 1997 to 24th June, 1997 on medical grounds with a direction to report in the Battalion Headquarters with the relevant record after the expiry of the leave. Raj Kumar did not comply inspite of repeated directions to do so and over stayed the leave. 15. Order also noticed that Court of Enquiry was held under Section 74(1) of the ITBP Force Act, 1992 and on the basis of the enquiry Raj Kumar is declared "deserter" w.e.f. 25th June, 1997 under Section 74(2) of the Act. It was ordered that his pay and allowances would also stop with effect from that date. 16. Respondent No. 2 issued a show cause notice to Raj Kumar on 1st April, 1998 (Annexure-PW) alleging that it has been decided finally to terminate his services for misconduct on his part and he should make a representation against the proposed action on or before 2nd May, 1998. Raj Kumar was removed from the services w.e.f. 8th May, 1998 (Annexure-PX) on his failure to show cause. Raj Kumar was removed from the services w.e.f. 8th May, 1998 (Annexure-PX) on his failure to show cause. The period of absence from 25th June, 1997 to 8th May, 1998 was declared "dies non" for all purposes. 17. It appears, Raj Kumar after having been declared fit by the concerned Doctor of the Indira Gandhi Medical College Hospital, Shimla, on 11th July, 1998, submitted his joining report in the Battalion Headquarters on 12th July, 1998 along with the Medical Certificate certifying: (a) medically fit to join his duties; (b) that period from 24th April, 1997 to 11th July, 1998 was absolutely necessary for the restoration of the petitioners health. (Annexure-PZ). 18. The Authorities did not accept the joining report on the ground that he had already been declared "deserter" and removed from the services on that account. 19. Raj Kumar challenges the orders declaring him deserter and his consequent removal from the service on the grounds that the impugned orders are illegal, arbitrary, mala fide and offensive of Article 14 of the Constitution of India. 20. In the return filed by the Union of India, the factual position is not disputed. It is not in dispute that Raj Kumar was referred to Indira Gandhi Medical College by the District Hospital, Reckong Peo. But, inspite of that he was not referred to either Indira Gandhi Medical College at Shimla or the Military Hospital at Shimla. The reason given by the respondent is that the Unit Doctor C Raj Kumar was of the view that Raj Kumar was suffering only from "Conversion Disorder". 21. The petition is opposed on the ground that Raj Kumar had ( abstained after leave period without authority which was misconduct on his part as the Member of the Force and therefore was rightly declared deserter which ultimately culminated into termination his service. 22. I have heard Mr. M.L. Sharma, learned Counsel for the petitioner. Mr. Janesh. Mahajan, learned Additional Central Government Standing Counsel for respondents no. 1 and 2 and Mr Rajiv Jeevan, learned Counsel for respondent No. 3. 23. A combined reading of Sections 20, 21. 22. I have heard Mr. M.L. Sharma, learned Counsel for the petitioner. Mr. Janesh. Mahajan, learned Additional Central Government Standing Counsel for respondents no. 1 and 2 and Mr Rajiv Jeevan, learned Counsel for respondent No. 3. 23. A combined reading of Sections 20, 21. 73 and 74 shows that when member of the ITBP force abstains from his duties without any due authority for a period exceeding 30 days with an intention of not returning back to his Unit or does an act which shows that he had no intention of reporting back to his Unit or place of duty can be declared as deserter. 24. In the present case, respondent No. 2 was fully aware that Raj Kumar was undergoing treatment in Indira Gandhi Medical College for a serious ailment- He had submitted his bids, repeated applications for the grant of leave, undertaking to produce the Medical Certificate by the concerned Doctor after he was declared fit and therefore, by no stretch it could be concluded that Raj Kumar abstained from duties with an intention not to join back. The circumstances were compelling. He was operated in emergency on the very day of admission for draining out abscess from his brain. The Unit Doctor to say least was causal in his approach. He failed to diagnose the disease with which Raj Kumar was inflicted. He even, in his deteriorating condition, insisted to keep him at Reckong Peo. The respondents have not produced any record of enquiry that how Enquiry Officer concluded that Raj Kumar abstained from duties without any intention to return back to his Unit 25. There is nothing in the reply of the respondents which may give an inkling that Raj Kumar had abstained from his duties or Unit with the intention of not reporting back. The Medical Certificate (Annexure-PZ) annexed by Raj Kumar with his petition is clear and loud that Raj Kumar was under treatment with the Indira Gandhi Medical College and his period of absence from 24th April. 1997 to 11th July, 1998 was "absolutely necessary for the restoration of his health". In interregnum, as noticed earlier, the correspondence exchanged between Raj Kumar and respondent No. 2 clearly indicates that respondent No. 2 was well aware that Raj Kumar was admitted in the Indira Gandhi Medical College Hospital and thereafter was under treatment of the experts in the Medical College. 26. In interregnum, as noticed earlier, the correspondence exchanged between Raj Kumar and respondent No. 2 clearly indicates that respondent No. 2 was well aware that Raj Kumar was admitted in the Indira Gandhi Medical College Hospital and thereafter was under treatment of the experts in the Medical College. 26. It is noticed that when a person subject to the Act deserts, Commanding Officer of the Unit is supposed to give information of desertion to the civil authorities, which may, in his opinion, be able to afford the capture of the deserter as stipulated under Section 73 of the Act No such action under Section 73 of the Act was taken which in itself indicates that the authority knew that Raj Kumar was admitted or was undergoing treatment in the Indira Gandhi Medical College. 27. The action of the respondent No. 2 in declaring Raj Kumar as deserter was mala fide, arbitrary illegal, and dehors the provisions of the ITBP Force Act The action is liable to be quashed. 28. No other point is urged. 29. In result, the petition is allowed. Order dated 24th January, 1998 (Annexure-PU) and consequent order dated 8th May, 1998 (Annexure-PX), terminating the services of Raj Kumar constable, being mala fide, arbitrary, illegal and dehors the provisions of the ITBP Force Act, are quashed. 30. As during the pendency of this petition. Raj Kumar expired and is substituted by his LRs. (petitioners No. 1 and 2) all the benefits which flow from the quashing of orders dated 24th January, 1998 (Annexure PU) and dated 8th May, 1998 (Annexure PX) shall be payable to the substituted petitioners, including the pay and allowances which Raj Kumar was entitled to till the date of his death. The petitioners shall also be paid medical claim payable to Raj Kumar. 31. Costs are quantified at Rs. 3000/-.