Amitava Roy, J.— The subject matter of challenge in the instant appeal is the judgment and order dated 11.06.2010, passed in WP (C) No. 5942/2006, sustaining the assailment of the orders dated 29.09.1998 and 21.03.2006 passed by the Commandant, 96 Bn. CRPF, Auran-gabad, Bihar and DIGP, CRPF, respectively. Whereas, by the first order, penalty of dismissal from service had been awarded to the respondent as a disciplinary measure, the second recorded the rejection of his statutory appeal against the same. The learned Single Judge by way of consequential relief directed his reinstatement in service with all conseq uential benefits under the law. 2. We have heard Mr. N. Zaman, learned Central Government Counsel for the appellants and Mr. S.K. Barkatakey and Ms. S. Sarma, Advocates for the respondent. 3. A brief outline of the contextual facts needs narration. The respondent had joined as a Constable (General Duty) in the Central Reserve Police Force (for short hereafter referred to as the CRPF/Force) on 1.12.1990. After the initial period of training, he was detailed to serve under the 96 Battalion CRPF at Ajmer, Rajasthan. He got married in the year 1997 to a lady in the State of Assam, whereafter, he left her at his paternal home hereat and resumed his duties under the aforementioned Battalion at Ajmer. While posted there, he having received the information that his wife was in her family way and that in connection therewith, there were some severe complications, he applied for casual leave for 15 days in the month of February, 1998, which was refused. As advised by the Commandant of the Battalion, he reiterated his request after a fortnight, which stood declined as well. Thereafter, the respondent had to move to the State of Bihar along with the Batallion, and on the way he having received the information that his wife was critically ill and "sinking" he in a hurry, rushed back home by leaving an application for casual leave. According to the respondent, after attending on his wife, he fell ill for which he was rendered unable to report back to his Unit immediately. However, when he ultimately returned for duty, he was kept in a camp and thereafter produced before the Commandant of the Batallion.
According to the respondent, after attending on his wife, he fell ill for which he was rendered unable to report back to his Unit immediately. However, when he ultimately returned for duty, he was kept in a camp and thereafter produced before the Commandant of the Batallion. On being queried for his absence, he, though, having explained reasons therefor and also had tendered apology, following an enquiry by the Chief Judicial Magistrate-cum-Commandant, 96 Battalion, CRPF, he was convicted under Section 10 (p) read with Section 9 (f) of the Central Reserve Police Force Act, 1949 (for short hereafter referred to as the Act), having held to be guilty of deserting the Force and absenting from service without permission for a period of 96 days. By the order dated 05.11.1998 he was dismissed from service. His statutory appeal also failed, the same having been rejected by the Appellate Authority on 21.03.2006. Being aggrieved, he approached this Court for redress. 4. The appellants in their affidavit-in-opposition asserted that the respondent had deserted the Force en-route while it was on transit from Jahanabad, Bihar on 12.06.1998. According to them, no information regarding the illness of his wife had ever been conveyed to the Commandant of the Battalion and no application for grant of casual leave also had been submitted. They asserted that as he was absent from duty on 12.07.1998, he was issued registered letters and telegrams for his return, but to no avail, for which, eventually, on a complaint lodged by the Officer Commanding D/96 Battalion, CRPF in the Court of the Chief Judicial Magistrate-cum-96 Battalion, a warrant of arrest was issued on 20.07.1998 to secure his presence, warrant, however, could not be executed, but on the return of the respondent to the Unit on 25.09.1998, he was tried by the Court of the Chief Judicial Magistrate-cum-Commandant, 96 Battalion, CRPF and was convicted under Section 10 (p) read with Section 9 (f) and sentenced to undergo imprisonment till rising of the Court on 29.09.1998, where after, in exercise of power 12 (1) he was dismissed from service w.e.f. 29.09.1998. The appell ants have stated that as the respondent had been tried in a judicial proceeding, no further enquiry into the episode was made.
The appell ants have stated that as the respondent had been tried in a judicial proceeding, no further enquiry into the episode was made. The learned Single Judge, as referred to hereinabove, on a scrutiny of the pleadings of the parties and the arguments based thereon, interfered with the orders impugned and directed the reinstatement of the respondent herein in service with all consequential benefits. It was concluded on an assessment of the attending facts and circumstances that the respondent could not have been said to have deserted the Unit and that his conduct, at best, amounted to an offence contemplated under Section 10 (m) of the Act. It was further held that the confinement of the respondent till the rising of the Court did not amount to imprisonment under Section 12 of the Act and that therefore, the order of dismissal was also unwarranted and impermissible. 5. Mr. Zaman, has persuasively argued that as the respondent had remained absent from duties without seeking leave as required under the law and that too for a period of 76 days at a stretch, considering the fact that at all relevant time he was a member of a disciplined force, he was guilty of the offence of deserting the Unit as envisaged in Section 9 (f) of the Act, and thus was rightly dismissed from service. The learned Central Government Counsel argued that as no point of time, the respondent had either prayed for leave or had communicated with the Unit during his absence explaining the reason therefor, the disciplinary measure of dismissal was appropriate, having regard to the norms of discipline in the Force and, therefore, the learned Single Judge had erred in interfering with the impugned order. The learned counsel for the respondent/ writ petitioner has submitted with reference to Sections 9, 10 & 11 of the Act, in particular that in the present factual premise the respondent could by no means be reproached as a deserter as conceived of in Section 9 (f) and, therefore, the imposition of the penalties of imprisonment on him and eventual dismissal from service are apparently unsustainable in law and on facts and had, therefore, been rightly annulled by the impugned judgment and order.
Contending that having regard to the emergent circumstances under which the respondent had to rush back to be by the side of his ailing wife following by his illness, he could not as well be condemned for absenting from service without leave and thus, no interference with the impugned judgment and order is warranted. The learned counsel for the respondent, however, has argued as well that in the face of Rule 31 of the Central Reserve Police Force Rules, 1955 (for short hereafter referred to as the Rules), as admitt edly, no enquiry, as contemplated therein had been held, the inference that the respondent had been, during the relevant time, absent without leave or sufficient cause is not available to the petitioners and, thus, no imposition of penalty is allowable under the law. The learned counsel for the respondent argued as well that as in the facts of the present case, he had not been imprisoned within the meaning of Section 12(1) of the Act, the order of dismissal had been rightly interfered with. 6. The pleadings available and the arguments had been duly noted. That the respondent, while on active duty had to leave the Unit on 12.07.1998, where after, he returned for duty on 25.09.1998 i.e. after 76 days is a matter of record. Whereas, accord ing to him, he left the Unit as above, after submitting an application for leave not waiting, however, for the same to be granted being driven by emergent circumstances the petitioner's version is that neither such a step had been taken by him nor thereafter did he keep any contact with the Unit or any other superior officer. On being queried by us, the learned counsel for the respondent, however, candidly admitted that during 12.07.1998 and 25.09.1998, he did not either communicate with his Unit or the Commandant of the Battalion or submit any application explaining the reason therefor. We are, therefore, constrained to hold that this conduct of his howsoever he might have been inextricably engaged, does not merit condonation as he at all relevant times was a member of a disciplined force and was, thus, supposed to be exemplarily conscious of his responsibilities vis-a-vis his service. 7.
We are, therefore, constrained to hold that this conduct of his howsoever he might have been inextricably engaged, does not merit condonation as he at all relevant times was a member of a disciplined force and was, thus, supposed to be exemplarily conscious of his responsibilities vis-a-vis his service. 7. Be that as it may, having regard to the pleaded facts and the documents available with us, we find no cogent and convincing reason to differ from the conclusion of the learned Single Judge that in the attendant facts and circumstances, he could not be held to be guilty of deserting his Unit. The very fact that he had returned for duty, even though, after a time lag of 76 days, in our estimate demonstrates the absence of his intention to desert the service. The animus desidendi, which is the quintessence of desertion, is vis ibly absent in the present case. 8. On a perusal of the decision rendered by the Allahabad High Court in Md. Zakir Vs. Union of India & Ors., 1996 (5) SLR 788, we are inclined as well to sustain the finding of the learned Single Judge that following the conviction of the respondent in the trial before the Chief Judicial Magistrate-cum-Commandant 96 Battalion, CRPF, he had not been imprisoned so as to permit his dismissal from service in exercise of powers under Section 12(1) of the Act. 9. The above notwithstanding, we are unable to persuade ourselves to sustain the operative direction contained in the impugned judgment and order. In the face of our determination that the respondent had failed to display a conduct expected of a member of a disciplined force during his absence from 12.07.1998 to 25.09.1998, we are not inclined to give a clean cheat to him in all respects. In this view of the matter and on an evaluation of the entire fact situation, we are of the unhesitant opinion that his lapse comes within the purview of Section 10 (n) of the Act for which as well, a penalty has been provided. We have noticed as well the power provided to the Commandant under Section 11 of the Act to award minor punishment on the eventualities as referred to therein. 10. On a cumulative consideration of all above, we consider it appropriate to remit the matter to the Commandant, 96 Battalion.
We have noticed as well the power provided to the Commandant under Section 11 of the Act to award minor punishment on the eventualities as referred to therein. 10. On a cumulative consideration of all above, we consider it appropriate to remit the matter to the Commandant, 96 Battalion. CRPF to take an appropriate decision vis-a -vis the respondent on the aspect of penalty/punishment contemplated by the Act. In doing so, we make it clear that the said authority would proceed on the basis that as held by us the respondent is guilty of a conduct as envisaged under Section 10 (n) of the Act. The interference with the penalty of dismissal is sustained. The operative direction for reinstatement and consequential reliefs is, however, interfered with. Appropriate orders in this regard would be passed by the Commandant, 96 Battalion along with the decision to be taken qua his penalty for the .lapse under Section 10 (n) of the Act. The impugned judgment and order is modified to the extent indicated hereinabove. The appeal is partly allowed. No costs. _____________