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2012 DIGILAW 760 (GAU)

Kulagam Pegu v. Union of India

2012-06-19

BIPLAB KUMAR SHARMA

body2012
JUDGMENT Hon'ble Mr. Justice B.K. Sharma 1. Heard Mr. A. Maleque, learned counsel for the petitioner as well as Mr. C. Baruah, learned CGC. The petitioner is aggrieved by Annexure-7 order dated 30.9.2003, by which, he was dismissed from service pursuant to a departmental proceeding. 2. The petitioner was appointed in the CRPF as constable (GD) under No. 903075844. According to the petitioner, while he was posed at Jammu, he applied for earned leave of 60 days with effect from 6.2.2003 to 7.4.2003 due to serious illness of his father-in-law. He was to report for duty on expiry of leave and for the purpose he had boarded a Night Super Bus on 5.4.2003, but on the way a dacoity was committed on the said bus by some extremists. As a result of which, the petitioner lost all his belongings including his uniform. According to him, he was also physically assaulted and sustained grievous injuries. The incident was registered as Jakhalabandha P.S. Case No. 17/2003 Under Section 395/397 IPC. 3. According to the petitioner in view of the incident, he had to be referred to Jakhalabandha PHC and he was admitted in Government Hospital. According to him, when he was undergoing treatment, he had sent an application on 9.4.2003 seeking extension of leave, in which he had stated the aforesaid facts. It has been stated in the writ petition that he did not keep the copy of the said application annexing therewith the medical certificate. 4. The petitioner was declared deserter pursuant to Court of enquiry that was conducted for prolonged absence from duty. An order was passed to that effect on 9.6.2003. Thereafter he was issued with the memorandum of chargesheet dated 4.7.2003 leveling the charge of commission of misconduct as a member of the force under Section 10(m) of the CRPF Act, 1949. The charge leveled against him was overstay of leave with effect from 1.4.2003 without prior permission of the competent authority. In due course, the enquiry was conducted, in which the charge against the petitioner was found to have been established. Consequently, by Annexure-7 impugned order dated 30.9.2003, he was dismissed from service. 5. The charge leveled against him was overstay of leave with effect from 1.4.2003 without prior permission of the competent authority. In due course, the enquiry was conducted, in which the charge against the petitioner was found to have been established. Consequently, by Annexure-7 impugned order dated 30.9.2003, he was dismissed from service. 5. According to the petitioner in view of the aforesaid incident, in which, he had sustained injuries resulted in failure to report for duty and as such the disciplinary authority ought not to have been dismissed from service on the basis of the ex parte enquiry. Mr. A. Maleque, learned counsel for the petitioner has strenuously argued that there being no hand of the petitioner in overstaying leave because of the aforesaid incident, the disciplinary authority ought to have been exonerated the petitioner from the charge. According to him, injustice was meted out to the petitioner. 6. Countering the above, Mr. C. Baruah, learned CGC submits that there being suppression of material facts on the part of the petitioner as disclosed in the counter affidavit, on that count alone, the writ petition is liable to be dismissed. Referring to the stand taken in the counter affidavit, to which the petitioner has not filed any reply affidavit, he has submitted that the petitioner having submitted false documents to establish the particular incident, the stand taken in the writ petition is not sustainable. 7. I have considered the submissions made by the learned counsel for the parties and have also perused the entire materials on record. 8. After availing the leave referred to above, the petitioner was to report for duty on 7.4.2003 at Transit Camp. CRPF, Jammu, but he failed to do so and overstayed leave without prior permission of the competent authority. As disclosed in the counter affidavit, he was directed to report duty 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 against him. In the meantime, the petitioner had forwarded an application alongwith photocopy of OPD slip and connected documents for extension of 20 days leave due to better treatment. In the said application, there was overwriting in respect of columns like date etc. The age of the petitioner was also indicated as 34/F years meaning thereby that the said document pertained to some female patient. 9. In the said application, there was overwriting in respect of columns like date etc. The age of the petitioner was also indicated as 34/F years meaning thereby that the said document pertained to some female patient. 9. Due to long absence of the petitioner after availing initial leave, he was declared deserter from the Force vide order dated 15.6.2003. Thereafter the memorandum of chargesheet was sent on him, but he neither report he reported duty nor furnished any reply to the charge leveled against him. An Assistant Commandant was appointed as Enquiry Officer vide order dated 21.7.2003. Inspite of sending repeated reminders, the petitioner did not report for duty. He also did not respond to the proceeding. Situated thus, ex parte departmental proceeding was conducted and concluded. A copy of the enquiry report was furnished to him. He was also asked to submit representation, if any against the enquiry report. Thereafter the impugned order of dismissal was passed. 10. Referring to earlier conduct of the petitioner, the respondents have stated in their counter affidavit that earlier conduct of the petitioner while in service was also not good. It appears that on earlier occasions also, the petitioner had overstayed leave. He was imposed with 7 days confinement for misbehaving with seniors. He was also imposed with 30 days confinement for overstaying of leave. 11. In paragraph 6 of the counter affidavit, the respondents have stated that the petitioner in his representation dated 23.9.2003 had mentioned that he was under treatment at Civil Hospital, Jakhalabandha with effect from 5.4.2003 to 8.4.2003 and 9.4.2003 to 15.9.2003 at Mismoda PHC Hospital, Golaghat. According to his representation, he was declared medically fit to resume duty on 15.9.2003, but on the other hand he started journey on 12.9.2003. 12. Above apart, contrary to his stand that the bus in which he was traveling was attacked by extremists, the petitioner in his representation stated that on 11.4.2003, terrorists had come to his house and threatened to kill him. With such contradictory statement, the petitioner wanted to cover up the period of absence. 13. If the petitioner remained absent from duty unauthorisedly, as has been held by this Court in Union of India Vs. Mithilesh Singh, reported in 2000 (3) GLT 62 unauthorized absence by a member of the disciplined force may entail dismissal from service. With such contradictory statement, the petitioner wanted to cover up the period of absence. 13. If the petitioner remained absent from duty unauthorisedly, as has been held by this Court in Union of India Vs. Mithilesh Singh, reported in 2000 (3) GLT 62 unauthorized absence by a member of the disciplined force may entail dismissal from service. That decision of the Divisional Bench of this Court has been affirmed by the Apex Court in Mithilesh Singh Vs. Union of India reported in (2003) 3 SCC 309 . The Apex Court has observed that unauthorized absence from duty by members of disciplined force is a serious misconduct and no fault can be attributed to the employer in respect of imposition of penalty of removal/dismissal from service. In the instant case, the petitioner, a member of disciplined force not only overstayed leave unauthorisedly but also took recourse to suppression of facts to the extent of submission of false documents. He also made contradictory statement in his representation with two stories. 14. As noted above in the first story he had stated that the bus, in which he was traveling, had been attacked by the terrorists, but in the second story, he stated that terrorists came to his house and he was attacked by militants and he was also threatened with dire consequences. 15. If the above was the conduct of the petitioner, I see no reason as to why the disciplinary authority could not have taken the decision as contained in the impugned order. 16. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed. However, if the petitioner is entitled any dues irrespective of the impugned order, the respondents shall pay the same as expeditiously as possible. Writ petition is dismissed, without, however, any order as to costs. Petition dismissed.