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2015 DIGILAW 111 (GAU)

Dharani Dhar Kalita v. Union of India And Ors.

2015-02-03

UJJAL BHUYAN

body2015
1. Heard Mr. P.K. Deka, learned counsel appearing for the petitioner and Ms. R. Bora, learned CGC, appearing on behalf of the respondents. 2. This is an application under article 226 of the Constitution of India, whereby, petitioner has challenged the legality and validity of the order dated 5.5.2005, dismissing him from service in the Central Reserve Police Force (CRPF). The petitioner also seeks quashing of the order dated 25.4.2004, declaring him to be a deserter. 3. A brief recital of the facts is considered necessary. 4. Petitioner was appointed as a Lower Division Clerk (LDC) in the CRPF in the year 1971. In the course of his service, he was promoted to the post of Sub-Inspector (M). At the relevant point of time, petitioner was posted in the Office of the Inspector General of Police (OPS) CRPF, Agartala. In the month of June 2003, petitioner was transferred to and posted at Ranch. 5. Because of frequent transfer and posting of the petitioner to various operational areas, where family accommodation was not possible, his family had to face various problems including health related ones. A transfer policy was in place in the CRPF, vide Standing Order No. 55/4/1 circulated by the Office of the Director General of CRPF dated 24.2.1999, whereby transfer cases of compassionate nature could be considered, particularly of those, whose retirement is due within 2 years. 6. On the basis of the said transfer policy, the DIGP (OPS), CRPF, Agartala, recommended the case of the petitioner for his posting at Guwahati on 2.1.2003. However, disregarding such recommendation and the transfer policy in vogue, petitioner was transferred to and posted at Ranchi vide signal dated 9.6.2003. Petitioner was granted 45 days earned leave and 15 days joining time to join his new place of posting at Ranchi. Petitioner was struck off from the rolls of the Agartala Office w.e.f. 14.7.2003. 7. Petitioner was required to join at Ranchi by 13.9.2003, but because of health reasons, he could not join. He had to undergo treatment in the Gauhati Medical College Hospital (GMCH) and also in the Mahendra Mohan Choudhury Hospital (MMCH), Guwahati. He also attended the CRPF Base Hospital at Guwahali. He was diagnosed with several ailments including Tuberculosis and was accordingly referred to the Lokopriyo Gopinath Bordoloi Chest Hospital at Guwahati. His wife was a severe heart patient and also required regular medical attention. 8. He also attended the CRPF Base Hospital at Guwahali. He was diagnosed with several ailments including Tuberculosis and was accordingly referred to the Lokopriyo Gopinath Bordoloi Chest Hospital at Guwahati. His wife was a severe heart patient and also required regular medical attention. 8. Petitioner's wife preferred an application dated 30.11.2003 before the Director General, CRPF, New Delhi, requesting modification of the transfer order so that he could be posted at Guwahati, which would be his home posting, because of the multiple health problems at home. Petitioner also submitted applications before the higher authorities on 13.9.2003, H.11.2003, 29.12.2003, 27.1.2004, 27.2.2004 and 24.3.2004. Petitioner was directed to avail treatment either at the CRPF Base Hospital at Guwahati or to report at Ranchi to undergo treatment there. Petitioner availed treatment at the Base Hospital at Guwahati but there was no improvement. 9. However, petitioner was declared a deserter on 25.4.2004. Additionally, a departmental proceeding was initiated against the petitioner under rule 27 of the CRPF Rules, 1955, for overstaying of leave and thereby remaining absent from duty. Petitioner was charged with committing an act of misconduct and disobedience to orders passed by the superior authorities. On receipt of the charge memo dated 22.7.2004, which was accompanied by a statement of imputation of misconduct/disobedience, list of documents and list of witnesses, petitioner submitted his written statements on 30.8.2004. Petitioner explained the circumstances because of which he could not join duty at Ranchi. He stated that he was in a totally bed ridden condition at that point of time and requested the disciplinary authority to drop the proceeding and to regularize his period of absence. 10. According to the petitioner, because of his ailment, he was totally bed-ridden and, therefore, he could not attend the enquiry proceeding. On top of it, his wife was a heart patient and suffered from frequent indisposition leaving the petitioner in a helpless situation. As a result, the enquiry proceeded ex parte. Vide letter dated 14.2.2005, issued by the Deputy Inspector General, a copy of the enquiry report submitted by the Enquiry Officer dated 14.2.2005, was furnished to the petitioner. Petitioner was given opportunity to make a representation or make submission on the report of enquiry. 11. Thereafter, the Deputy Inspector General as the Disciplinary Authority passed the impugned order dated 19.5.2005, imposing the penalty of dismissal from service on the petitioner. 12. Petitioner was given opportunity to make a representation or make submission on the report of enquiry. 11. Thereafter, the Deputy Inspector General as the Disciplinary Authority passed the impugned order dated 19.5.2005, imposing the penalty of dismissal from service on the petitioner. 12. At that stage, petitioner approached this court by filing WP(C) No. 4430 of 2005 challenging the dismissal order dated 19.5.2005 and this court vide order dated 19.7.2007, disposed of the said writ petition by directing the petitioner to avail the appellate remedy provided under the CRPF Rules, 1955. It was provided that if an appeal was filed by the petitioner the appellate authority would decide the appeal on merit. 13. It appears that following the above order of this court, petitioner submitted an appeal dated 31.7.2007, which was rejected by the appellate authority, vide order dated 14.9.2007. 14. Aggrieved, petitioner has filed the present writ petition. 15. Petitioner has contended that overstay of leave is a less heinous offence under section 10(m) of the CRPF Act, 1949. Therefore, the penalty of dismissal from service imposed on the petitioner is totally disproportionate to the gravity of the misconduct. Further contention is that no Presenting Officer was appointed in the enquiry conducted against the petitioner. The enquiry was conducted entirely by the Enquiry Officer, who played the dual role of an Enquiry Officer as well as that of a Presenting Officer. Thus, he acted as a Prosecutor as well as a Judge in the same case, which is in violation of the principles of fair play and natural justice. This has vitiated the enquiry and the consequential penalty. It is also contended that the appellate authority had rejected the appeal of the petitioner in a most mechanical manner ignoring the directions of this court. 16. Respondents have filed a common affidavit. Stand taken in the affidavit is that petitioner was transferred from Agartala to Ranchi vide signal dated 9.6.2003. Request of the petitioner for 45 days earned leave for surgery of his son was accepted and he was given 15 days of joining time. He was released from Agartala on 14.7.2003. As such, he ought to have joined his duty at Ranchi, on 13.9.2003, but he did not do so. Instead, he sent a telegram on 16.9.2003, stating that he was ill and was advised one month rest. He was released from Agartala on 14.7.2003. As such, he ought to have joined his duty at Ranchi, on 13.9.2003, but he did not do so. Instead, he sent a telegram on 16.9.2003, stating that he was ill and was advised one month rest. Though he had sent medical certificate issued by the Mahendra Mohan Choudhury Hospital (MMCH), Guwahati, petitioner was asked to report to the CRPF Hospital at Guwahati or at Ranchi as the medical certificate issued by the MMCH, was not acceptable. Details of correspondences with the petitioner regarding his illness and treatment have been referred to in the affidavit. Ultimately, the request of the petitioner for extension of leave was not considered and he was directed to report for duty at Ranchi, on 22.1.2004. Instead of joining, petitioner again submitted application for extension of leave, which was rejected. A Court of Enquiry was constituted on 23.3.2004 and petitioner was declared a deserter vide order dated 25.4.2004. Decision was also taken to conduct departmental enquiry against the petitioner. Accordingly, charge memo dated 22.7.2004, was issued to the petitioner, which was handed over to him on 11.8.2004. Petitioner submitted his reply on 30.8.2004. It is stated that Sri Anurag Rana, Deputy Commandant was appointed as Enquiry Officer to enquire into the charges framed against the petitioner vide order dated 22.9.2004. Since he was named as a prosecution witness in the enquiry, Sri A.K. Singh, another Deputy Commandant was-appointed as Enquiry Officer in place of Sri Anurag Rana. Petitioner did not participate in the enquiry though summons were issued to him. The Enquiry Officer recorded the statements of various witnesses during the enquiry, where-after, he submitted his report. A copy of the enquiry report was forwarded to the petitioner on 14.2.2005. Petitioner submitted his representation on the enquiry report on 17.3.2004. After considering the record of enquiry proceeding and the representation of the petitioner, the Disciplinary Authority awarded the penalty of dismissal from service on the petitioner w.e.f. 19.5.2005 vide the order dated 19.5.2005. It is further stated that petitioner had filed a writ petition against the dismissal order which was disposed of by this court by directing the petitioner to file appeal. Thereafter, petitioner filed appeal. Appeal filed by the petitioner was rejected by the appellate authority. It is further stated that petitioner had filed a writ petition against the dismissal order which was disposed of by this court by directing the petitioner to file appeal. Thereafter, petitioner filed appeal. Appeal filed by the petitioner was rejected by the appellate authority. It is stated that petitioner belongs to Guwahati and for a major part of his service career he was posted in and around Assam only. A statement has been made that petitioner belongs to the North East and he had already enjoyed posting in that region for more than 20 years out of his 33 years of service. During his service career, he had overstayed leave/remained absent from duty on a number of occasions for which he was awarded punishments. It is stated that there was no infirmity in the departmental proceeding drawn up against the petitioner to warrant any interference. Penalty imposed is not disproportionate to the gravity of the misconduct. Petitioner remained absent unauthorisedly despite directions by the higher authority. Enquiry was conducted in a fair and impartial manner. Since the enquiry was conducted ex parte, there was no need for appointing a Presenting Officer. Doubts have also been raised about the medical condition of the petitioner as projected by him. 17. Petitioner has filed an additional affidavit stating that he developed serious ailments including Tuberculosis, for which he could not report for his duty at Ranchi. He had availed treatment in the Gauhati Medical College Hospital (GMCH), Guwahati, Mahendra Mohan Choudhury Hospital (MMCH), Guwahati, Lokopriyo Gopinath Bordoloi Chest I Hospital, Guwahati, and the CRPF Base Hospital, Guwahati, which was informed to the authorities. His wife was suffering from severe heart disease. Her health condition deteriorated, where-after, she ultimately succumbed to her illness on 30.3.2007. Order of this court dated 19.7.2007 passed in WP(C) No. 4430 of 2005, was not considered in the proper perspective by the appellate authority, who mechanically dismissed the appeal. Declaring the petitioner as a deserter was not justified. Petitioner had rendered long years of service in the CRPF. Declaring him a deserter and thereafter, dismissing him from service is most unfair and unjust, which requires interference of this court. 18. Mr. Declaring the petitioner as a deserter was not justified. Petitioner had rendered long years of service in the CRPF. Declaring him a deserter and thereafter, dismissing him from service is most unfair and unjust, which requires interference of this court. 18. Mr. Deka, learned counsel for the petitioner submits that firstly, the action of the respondents in declaring the petitioner as a deserter is not at all justified as it is clearly evident that there was no desertion by the petitioner. Secondly, he submits that the appellate authority did not consider the appeal with an open mind and in terms of the direction of this court. There is no deliberation in the appellate order on the issues highlighted by this court and which were required to be considered by the appellate authority. Lastly, he submits that the foundation of the penalty cannot be sustained as because the enquiry proceeding against the petitioner was not conducted in accordance with law. Respondents did not appoint any Presenting Officer in the enquiry to present the case of the Disciplinary Authority and in the absence of the Presenting Officer, the Enquiry Officer himself performed the role of the Presenting Officer as well as that of a Judge. This is in violation of fair procedure and has vitiated the entire enquiry proceeding. Since the penalty order is based on the report of the Enquiry Officer, the same would also stand vitiated. In support of his submissions, learned counsel for the petitioner has referred to the following decisions: (1) Mutum Shanti Kumar Singh v. Union of India, 2005 (3) GLR 243. (2) W. Birbal Singh v. State of Manipur, 2010(5) GLT 371 (2011) 4 GLR 112. (3) Union of India and Others v. Ram Lakhan Sarma, 2011 (3) GLT 281. (4) Sundeswar Choudhury v. Union of India and Others, 2024 (1) GLR 141. (5) Anil Baishya v. State of Assam and Others, 2014 (4) GLR 111. 19. Ms Bora, learned CGC, on the other hand, submits that the charges framed against the petitioner were quite seriovis which were duly proved in the departmental enquiry. Punishment imposed is commensurate with the gravity of the misconduct. Petitioner did not participate in the departmental enquiry and, therefore, he cannot complain of any infirmity in the departmental enquiry. She submits that when the departmental enquiry proceeds ex parte, presence of the Presenting Officer will not vitiate the enquiry. Punishment imposed is commensurate with the gravity of the misconduct. Petitioner did not participate in the departmental enquiry and, therefore, he cannot complain of any infirmity in the departmental enquiry. She submits that when the departmental enquiry proceeds ex parte, presence of the Presenting Officer will not vitiate the enquiry. In any case, scope of judicial interference in such cases is limited, she submits. In support of her submissions she has placed reliance on the following decisions: (1) State Bank of India v. Narendra Kumar Pandey, (2013) 2 SCC 740 . (2) Ajay Kumar Paswan v. Union of India and Others, 2013 (4) GLT 802. 20. Submissions made have been considered. 21. The substance of the imputation of misconduct has already been noticed in the earlier part of the judgment. Basic allegation is that petitioner did not report for duty in his transferred place of posting after expiry of leave period and joining time. 22. Upon due consideration, court is of the view that the following issues arise for consideration in this case: (1) Whether the appellate authority had properly considered the order of this court while disposing of the appeal of the petitioner? (2) Whether the respondents were justified in declaring the petitioner as a deserter? (3) Whether non-appointment of Presenting Officer in the departmental enquiry vitiated the enquiry though the petitioner did not participate in the same? (4) Whether the respondents were justified in imposing the penalty of dismissal from service on the petitioner? 23. Court may now proceed to deal with the rival submissions issue-wise. 24. Issue No. 1: When the petitioner had earlier approached this court in WP(C) No. 4430 of 2005 challenging his dismissal from service, this court vide order dated 19.7.2007 gave opportunity to the petitioner to avail the appellate remedy provided under the CRPF Rules. This court observed that the appellate authority would examine the appeal in the light of the explanation offered by the petitioner for his failure to report for duty at Ranch due to medical circumstances. The appellate authority was further directed to examine the conduct of the petitioner while deciding the appeal as to whether it would come within the ambit of section 10(m) of the CRPF Act, 1949, and would also examine as to whether petitioner should be treated as a 'deserter' from the CRPF. The appellate authority was further directed to examine the conduct of the petitioner while deciding the appeal as to whether it would come within the ambit of section 10(m) of the CRPF Act, 1949, and would also examine as to whether petitioner should be treated as a 'deserter' from the CRPF. Relevant portion of the order of this court dated 19.7.2007, reads as under: "9. In the instant case, it can be seen from the submission made that the writ petitioner who was to report to his transferred posting at Ranchi on 13.9.2003 after availing of earned leave and joining time failed to report at Ranchi. The said failure is attributed to physical ailment suffered by the writ petitioner and in support of the claim a large number of medical certificates have been annexed to the writ petition. It also appears that in view of the adverse circumstances, the petitioner could not participate in the enquiry proceeding conducted on the charges of overstaying of leave and failure to report to his duties. 10. Having regard to the facts as noticed, I am of the view that it would be appropriate to dispose of this writ petition by directing the writ petitioner to avail of the remedies provided under the CRPF Rules. On appeal being filed by the petitioner, the competent authority would examine the merit of such appeal in the light of explanation offered by the petitioner for his failure to report for his duty at Ranchi, which has been attributed to medical circumstances. The appellate authority while taking a decision on the appeal to be filed, would also examine as to whether the conduct of the petitioner could be one, which is covered under the provisions of section 10(m) of the Act and would also examine as to whether the petitioner should be treated as 'deserter' from the force." 25. Following the aforesaid order of this court, petitioner submitted appeal, which was disposed of by the appellate authority, i.e., Inspector General (P&C) on 14.9.2007. The relevant portion of the order of the appellate authority reads as under: "On the basis of the Honourable High Court of Gauhati order dated 19.7.2007 in the WP(C) No. 4430 of 2005 filed by the petitioner Ex. The relevant portion of the order of the appellate authority reads as under: "On the basis of the Honourable High Court of Gauhati order dated 19.7.2007 in the WP(C) No. 4430 of 2005 filed by the petitioner Ex. SI/M D.D. Kalita, I have carefully gone through his appeal dated 31.7.2007 along with supporting documents as submitted by the petitioner as well as entire enquiry proceeding and comments of DIG (Comn) and views of law branch of this headquarter. Having considered all aspects of the case and applying my mind judiciously, I come to conclusion that the punishment awarded to No. 711505838 SI (M) D.D. Kalita of SGC, CRPF, Ranchi by the DIG (Comm.) is just and fair and commensurates with the gravity of offence committed by him. Therefore, I find no reason to interfere with the orders passed by the DIG (Comn) and the appeal preferred by Ex. SI/M D.D. Kalita is rejected being devoid of merit.” 26. From a perusal of the appellate order it is quite evident that the appellate authority did not consider the appeal of the petitioner in the light of the observations and directions of this court as noticed above. There is no deliberation regarding failure of the petitioner to report for duty at Ranchi because of medical circumstances, as was directed by this court. In fact, this court had clearly observed that it appeared to the court that in view of the adverse circumstances, petitioner could not participate in the enquiry proceeding conducted on the charges of overstaying of leave and failure to report to his duties. The appellate authority was required to deal with this aspect but failed to do so. The appellate authority also did not examine as to whether the conduct of the petitioner would be covered under section 10(m) of the CRPF Act and whether he should be treated as a deserter as was directed by this court. Therefore, it is evident that the appellate authority mechanically disposed of the appeal filed by the petitioner without examining the issues as was directed by this court. Mere saying that the appellate authority had considered all aspects of the case and had applied his mind judiciously is not adequate. The appellate order must indicate how the appeal of the appellant was dealt with, particularly the two issues indicated in the previous order of this court. Mere saying that the appellate authority had considered all aspects of the case and had applied his mind judiciously is not adequate. The appellate order must indicate how the appeal of the appellant was dealt with, particularly the two issues indicated in the previous order of this court. It is not discernible from the appellate order how the two issues were examined by the appellate authority. The hon'ble Supreme Court has time and again reiterated in a catena of judgments the necessity and importance of giving reasons by the authority in support of its decision, which is applicable to appellate authorities with equal force if not more. It has been held that the face of an order passed by a quasi-judicial authority like the appellate authority in a departmental proceeding or even by an administrative authority affecting the rights of parties must speak. The affected party must know how his case or defence was considered before passing the prejudicial order. In this case, there was a specific direction of this court to examine the merit of the appeal in the light of the explanation offered by the petitioner for his failure to report for his duty at Ranchi due to medical circumstances and also whether the petitioner should have been treated as a deserter. The appellate order is totally silent as to how these aspects were considered. In such circumstances, the appellate order dated 14.9.2007, cannot be sustained and is accordingly, set aside. 27. Issue No. 2: As noticed above, one of the issues, which arises for consideration in this case is whether the respondents were justified in declaring the petitioner as a deserter. 28. By order dated 25.4.2004, issued by the Office of the Additional Deputy Inspector General of Police, Signal Group Centre, CRPF, Ranchi, petitioner was declared as a deserter from the CRPF w.e.f. 13.9.2003, i.e., the last date within which he was to report for duty at Ranchi. A perusal of the said order would show that a court of enquiry was held pursuant to which, petitioner was declared as a deserter. It is further staled that despite such desertion, petitioner would not cease to be a member of the Force (CRPF) and he would be liable to prosecution under section 10(m) of the CRPF Act, 1955 as and when he was apprehended by the Police or he surrendered. 29. It is further staled that despite such desertion, petitioner would not cease to be a member of the Force (CRPF) and he would be liable to prosecution under section 10(m) of the CRPF Act, 1955 as and when he was apprehended by the Police or he surrendered. 29. Declaration of a member of the Force (CRPF in this case) as a deserter is an extremely serious step, which entails serious consequences on the person declared as a deserter. Rule 31 of the CRPF Rules, 1955, lays down the procedure for declaration of a member of the Force as a deserter. It requires assembling of a court of enquiry and giving of its findings. Once a finding of desertion is given, the same will be published by the Commandant and the effect of desertion shall be given from the date of illegal absence. However, a declaration of deserter would not mean that the absentee shall thereby cease to belong to the Force. 30. Under section 9(f), desertion from the Force by a member is considered as a more heinous offence with severe penal consequences. A member of the Force who deserts the Force shall be punishable with transportation for life for a term of not less than 7 years or with imprisonment for a term, which may extend to 14 years or with fine, which may extend to 3 months' pay or with fine to that extent in addition to such sentence of transportation or imprisonment. On the other hand, under section 10(m) of the CRPF Act, absence without leave or overstay of leave without sufficient cause is considered to be a less heinous offence entailing penal consequences of imprisonment for a term which may extend to 1 year or with fine, which may extend to 3 months' pay or with both. 31. On a comparison between the two, it is fairly evident that while desertion is a more heinous offence, absence without leave or over-stay of leave without sufficient cause is a less heinous offence. Penal consequences for both the offences are different with former being extremely severe. Therefore, offence of absence without leave or overstay of leave without sufficient cause cannot be equated with the offence of desertion. Penal consequences for both the offences are different with former being extremely severe. Therefore, offence of absence without leave or overstay of leave without sufficient cause cannot be equated with the offence of desertion. For conversion of the offence of absence without leave or over-stay of leave without sufficient cause to the offence of desertion would require something more as the two offences do not stand on the same footing and cannot be equated. For an offence of absence without leave or over-stay of leave without sufficient cause to become an offence of desertion, the authority must come to a definite conclusion that there was intentional or willful absenteeism by the offender disobeying lawful command of the superior authorities. Just because a member of the Force is absent without leave or over-stays leave without sufficient cause would not automatically lead to the conclusion that he has deserted the Force. As noticed above, something more is required. 32. Coming back to the facts of the present case, the question is whether the petitioner was a deserter. Petitioner was transferred from Agartala to Ranch on 9.6.2003. Petitioner was granted 45 days earned leave. He was also given 15 days joining time. Petitioner was relieved from his duly at Agartala on 14.7.2003. According to the respondents, he ought to have been joined his duty at Ranchi by 13.9.2003. Instead of joining within the permissible period, petitioner had sent a telegram dated 16.9.2003, informing about his sickness and medical advice for rest. Petitioner had stated that he was suffering from various ailments including Tuberculosis. He had undergone treatment in the Gauhati Medical College Hospital (GMCH) and in the Mohendra Mohan Choudhury Hospital (MMCH) at Guwahati. As per direction of his superior authorities, he had also reported to the CKPF Base Hospital at Guwahati. As he was suffering from Tuberculosis petitioner had to take treatment in the Lokopriya Gopinath Bordoloi Chest Hospital at Guwahati. He had stated that his wife was a severe heart patient and she had also represented before the higher authorities for modification of the transfer order as per the policy of CRPF. A number of representations and telegrams were sent by the petitioner stating that he was undergoing treatment and would rejoin duty on recovery along with fitness certificate. Till the court of enquiry was constituted petitioner had submitted several applications for extension of leave, but those were not considered. 33. A number of representations and telegrams were sent by the petitioner stating that he was undergoing treatment and would rejoin duty on recovery along with fitness certificate. Till the court of enquiry was constituted petitioner had submitted several applications for extension of leave, but those were not considered. 33. From the above, it is evident that though the petitioner had overstayed leave granted to him, it cannot be said that such over-stay was without sufficient cause. It is quite evident that petitioner was having medical problems of himself, his wife and his son. As already noticed above, this court in the previous order had taken the view that because of adverse circumstances, petitioner could not participate in the enquiry proceeding. In fact, his wife, who was a heart patient, had subsequently expired on 30.3.2007, the death certificate of which has been annexed with the additional affidavit of the petitioner. From the documents and applications placed on record, it cannot be said that the petitioner did not want to rejoin the service. The hon'ble Supreme Court in the case of Captain Virendra Kumar v. Chief of the Army Staff, (1986) 2 SCC 217 , examined the expression desertion vis-a-vis absence without leave in the context of the Army Act, 1950, and held that since every desertion necessarily implies absence without leave, the distinction between desertion and absence without leave must necessarily depend on the animus. If there is animus dcsercndi, absence would straightway be desertion. 34. While every desertion would necessarily imply absence without leave or over-stay of leave without sufficient cause, the converse may not be true. Any or each and every absence without leave or over-stay of leave without sufficient cause may not ipso facto be desertion. For the latter to be desertion, there must be willful abandonment of duty with intention of never returning. The intention to quit duty permanently is essential to constitute desertion. Thus, animus deserendi, i.e., intention of deserting must be present to hold a member of the Force a deserter. Therefore, the fine but clear distinction between desertion and unauthorized absence must be understood contextually where intention to quit service or to avoid duty is of paramount consideration. 35. From the materials on record and in the context of the CRPF Act, it is clear that petitioner's case is of over-stay of leave. Therefore, the fine but clear distinction between desertion and unauthorized absence must be understood contextually where intention to quit service or to avoid duty is of paramount consideration. 35. From the materials on record and in the context of the CRPF Act, it is clear that petitioner's case is of over-stay of leave. In fact, the basic charge against the petitioner was of overstaying of leave w.e.f. 13.9.2003 without any permission/sanction of the competent authority. But from the number of applications and numerous medical certificates which have been placed on record, it cannot be said that he had over-stayed leave without sufficient cause. Petitioner had attributed his overstay of leave because of adverse medical circumstances at home. As if, in a perverse way, to buttress the petitioner's plea of adverse medical circumstances at home which prevented him from leaving home, petitioner's wife died due to her heart ailment on 30.3.2007. In his applications, petitioner had all along stated that he would rejoin duty after he recovered from his illness or when things became manageable at home. There was thus no animus deserendi on the part of the petitioner in not rejoining the Force, w.e.f. 13.9.2003 to 25.4.2004. Petitioner had rendered service in the CRPF for long 33 years and was due for superannuation on 31.3.2008. For his earlier instances of leave overstay, he was either punished pr leave was regularized. That could not have been brought and relied upon in the present case to condemn the petitioner as a deserter. Rather those instances only point out to the petitioner's intention of rejoining duty. Therefore, declaration of the petitioner as a deserter in the contextual facts of the case is not at all justified. Accordingly, the order dated 25.4.2004, declaring the petitioner to be a deserter cannot be sustained and is hereby set aside and quashed. 36. Issue No. 3: The third issue relates to non-appointment of Presenting Officer in the departmental enquiry. To answer this issue it would be apposite to refer to the relevant provisions of the CRPF Act and the CRPF Rules. Section 11 of the CRPF Act deals with imposition of punishment on any member of the CRPF. Though the heading of the said section is minor punishments actually it deals with all the punishments starting from dismissal from service to censure. Section 11 of the CRPF Act deals with imposition of punishment on any member of the CRPF. Though the heading of the said section is minor punishments actually it deals with all the punishments starting from dismissal from service to censure. Section 18 of the CRPF Act enables the Central Government to make Rules for carrying out the purpose of the Act. Accordingly, the CRPF Rules have been framed. Chapter VI comprising of rules 27 to 36-A, deals with discipline. Rule 27 lays down the procedure for awarding of punishments. As per clause (a), in case of dismissal or removal of a Sub-Inspector from service, the authority competent to impose the penalty is the DIGP. However, the punishment has to be imposed after holding formal departmental enquiry, the procedure of which is laid down in clause (c). At this stage, it may not be necessary to have an elaborate examination of the procedure laid down in clause (c) save and except that the charged member of the Force shall be allowed to cross-examine the witnesses and shall also be allowed to inspect the exhibits. From a close scrutiny of the provisions contained in rule 27(c), it is seen that the departmental enquiry visualizes appointment of an Enquiry Officer to hold the enquiry. However, rule 27 of the CRPF Rules does not expressly provide for appointment of a Presenting Officer. 37. In Mutum Shantikumar Singh v. Union of India, (2005) 3 GLR 243, this court has held that rule 27 does not bar the competent authority from appointing a Presenting Officer in a disciplinary proceeding for conducting the same in a fair manner in accordance with the principles of natural justice. This court held that in a departmental proceeding where no Presenting Officer is appointed, the Enquiry Officer assumes the role of the Judge as well as of prosecution, inasmuch, as in the absence of the Presenting Officer, the Enquiry Officer shall have to examine the witnesses and the exhibited documents, which will be in total violation of the principles of natural justice. By reading the requirement of fair procedure and rules of natural justice in rule 27, it was finally held that appointment of a Presenting Officer is a must in a disciplinary proceeding against a CRPF Constable. That was a case of dismissal of a CRPF Constable following a disciplinary proceeding. By reading the requirement of fair procedure and rules of natural justice in rule 27, it was finally held that appointment of a Presenting Officer is a must in a disciplinary proceeding against a CRPF Constable. That was a case of dismissal of a CRPF Constable following a disciplinary proceeding. Because of non- appointment of a Presenting Officer, the disciplinary proceeding was declared illegal and was accordingly, quashed. 38. Again in a case of removal from service of a CRPF Constable following a disciplinary proceeding, a Division Bench of this court in Union of India v. Ram Lakhnn Sarma, 2011 (3) GLT 281, held that even when the statute does not prescribe for appointment of a Presenting Officer in a disciplinary proceeding, then also same is required to be made to comply with the principles of natural justice. In the facts of that case, it was held that the Enquiry Officer in the absence of the Presenting Officer had put all the questions to the delinquent. Thus, the Enquiry Officer acted beyond his jurisdiction. If an authority acts beyond his jurisdiction and submits his report, the disciplinary authority should not act on such report. The court held as under: "(18) We are of the further opinion that in various disciplinary proceedings the statutory authority is working like an administrative authority when they have to act independently and discharge their duty as the statute prescribed applying their judicial mind. It is a settled position of law that the disciplinary proceeding is a quasi-judicial proceeding and the Inquiry Officer while acting in a disciplinary proceeding is to act like a judicial authority. We are of the further opinion that the Inquiry Officer should not act either for the Disciplinary Authority or for the delinquent officer. lie is to act-independently to take the inference of facts which is placed before him by the parties. He should not put questions like a Presenting Officer to the delinquent officer to prove the charges levelled against the delinquent officer. From such action of the Inquiring Officer it can be easily said that the Inquiring Officer is to the extent biased to the delinquent officer, which is unwarranted in law. He should not put questions like a Presenting Officer to the delinquent officer to prove the charges levelled against the delinquent officer. From such action of the Inquiring Officer it can be easily said that the Inquiring Officer is to the extent biased to the delinquent officer, which is unwarranted in law. If the statutory authority acted beyond the power vested on him then where the delinquent officer will go except to the court of law, which course really has been taken by the respondent-writ petitioner to prove the biasness of the inquiring officer in the writ petition and ultimately succeeded." 39. In W. Birbal Singh v. State of Manipur, 2010 (5) GLJ 371, which was also a case of dismissal of a police Constable following a disciplinary proceeding where no Presenting Officer was appointed, a Division Bench of this court held as under: "(15). This court in the above cases held that the enquiry officer has assumed the role of the Judge as well as the prosecutor, inasmuch as, in absence of the presenting officer, the Enquiry Officer himself examined the witnesses and exhibited documents and it would be violative of the rules and the fundamental principles of natural justice. Admittedly, in the disciplinary proceeding against the appellant-writ petitioner for the said 2 articles of charges no presenting officer was appointed and the Enquiry Officer himself assumed the role of Judge as well as prosecution. Accordingly, we are of the considered view, that the disciplinary proceeding against the appellant-writ petitioner is liable lo be quashed only on this score." 40. Following the above decisions, a Single Bench of this court in Sundeshwar Choudhury v. Union of India, (2014) 1 CLR 141, took the view that failure to appoint a Presenting Officer had fundamentally affected the disciplinary proceeding drawn up against the petitioner. That was a case of dismissal from service of a Lance Naik in the CRPR It was held that such omission caused prejudice to the petitioner and had vitiated the enquiry and the consequential punishment imposed. 41. A Single Bench of this court in the case of Anil Baishya v. State of Assam and Others, (2014) 4 GLR 111, held as under: "(24) A departmental enquiry is a quasi-judicial proceeding. Principles of natural justice, which includes a fair procedure, is inbuilt in such a proceeding. The Enquiry Officer has to discharge his functions in a quasi-judicial manner. A Single Bench of this court in the case of Anil Baishya v. State of Assam and Others, (2014) 4 GLR 111, held as under: "(24) A departmental enquiry is a quasi-judicial proceeding. Principles of natural justice, which includes a fair procedure, is inbuilt in such a proceeding. The Enquiry Officer has to discharge his functions in a quasi-judicial manner. He has to act fairly and impartially. The role of the Presenting Officer is to present the case of the disciplinary authority before the Enquiry-Officer. He is the representative of the disciplinary authority. He has to assist the Enquiry Officer by presenting before him the case of the disciplinary authority. He has to marshal the facts and to examine and cross-examine the witnesses produced during the enquiry. It is he who has to produce and prove the listed documents during the enquiry and lead the oral evidence in support of the charge. Therefore, in the absence of the Presenting Officer, it is the Enquiry Officer who will have to produce the documents and present the witnesses. In such a case, he will assume the role of the judge as well as that of the prosecutor, which will be a total negation of the avowed principles of natural justice and fair procedure. Absence of the Presenting Officer will certainly not be a fair procedure." 42. Coming to the present case, it is seen that though the departmental enquiry was conducted ex parte, the Enquiry Officer recorded the statements of several witnesses. In the midst of the enquiry, prosecution witness Nos. 3 and 4 were changed. Initially, PW3, Tejpal Singh and PW4, A Bhattacharjee were listed as witnesses. They were changed allegedly because of their transfer and in their place, N.K. Kutty and Kamal Bhattacharya were admitted as PW3 and PW4. Enquiry Officer informed the petitioner regarding change of the prosecution witnesses vide letter dated 13.12.2004. The Enquiry Report indicates that the same was also intimated to the Disciplinary Authority by the Enquiry Officer. It is, however, not clear as to who changed PW Nos. 3 and 4 -whether by the Disciplinary Authority or by the Enquiry Officer. But one thing is clear that the Enquiry Officer took the initiative and acted like the Presenting Officer. The Enquiry Report further discloses that as many as 30 (thirty) documents were exhibited in the disciplinary enquiry. It is, however, not clear as to who changed PW Nos. 3 and 4 -whether by the Disciplinary Authority or by the Enquiry Officer. But one thing is clear that the Enquiry Officer took the initiative and acted like the Presenting Officer. The Enquiry Report further discloses that as many as 30 (thirty) documents were exhibited in the disciplinary enquiry. In the absence of the Presenting Officer, it was the Enquiry Officer who had to exhibit the documents on behalf of the Disciplinary Authority. 43. Learned counsel for the respondents has placed reliance on a Single Bench decision of this court rendered in Ajay Kumar Paswan v. Union of India, 2013 (4) GLT 802, to contend that absence of the Presenting Officer will not vitiate a disciplinary proceeding. A reading of the judgment in Ajay Kumar Paswan (supra) would show that the question before the learned Single Judge was whether failure of the disciplinary authority to appoint Presenting Officer irrespective of any prejudice to the delinquent employee, who did not deny the charges and had rather pleaded guilty, can vitiate the whole proceeding. Learned Single Judge referred to the 2 cases of Salam Kesho Singh v. State of Manipur, 2077 (1) GLT 287 and Ram Lakhan Sharma (supra), which were relied upon by the petitioner arid came to the conclusion that the facts in Ajay Kumar Paswan (supra) were not identical with the above two cases, since in Ajay Kumar Paswan, the delinquent had pleaded guilty, which was not the case in the 2 cited cases. Therefore, learned Single Judge held that there is fundamental factual difference between the earlier two cases and the case of Ajay Kumar Paswan (supra). Thus, on facts, the learned Single judge had taken the view that Ajay Kumar Paswan (supra) was fundamentally different from Salam Kesho Singh (supra) and Ram Lakhan Sharma (supra). Therefore, reliance placed by learned counsel for the respondents on Ajay Kumar Paswan (supra) is clearly misplaced. 44. This Bench being a Single Bench is bound by the law laid down by the Division Bench of this court which has been consistently followed by subsequent Division Bench and Single Benches. In this connection, a reference may be made to the case of Official Liquidator v. Dayanand and Others, (2008) 10 SCC 1 , where the Apex Court made the following useful observations which are self explanatory and which need no elaboration. In this connection, a reference may be made to the case of Official Liquidator v. Dayanand and Others, (2008) 10 SCC 1 , where the Apex Court made the following useful observations which are self explanatory and which need no elaboration. It was held as under: "78. There have been several instances of different Benches of the High Courts not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this court without any tangible reason. Likewise, there have been instances in which smaller Benches of this court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system.......... 90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed. 91. We may add that in our constitutional set-up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law. 92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judge Bench in U.P. SEB v. Pooran Chandra Pandey should be read as obiter and the same should neither be treated as binding by the High Courts, tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench." 45. Reliance placed by learned counsel for the respondents on Narendra Kumar Pandey (supra) does not help the case of the respondents in as much that was a case of a bank officer where in the disciplinary proceeding both Enquiry Officer and Presenting Officer were appointed. The charged officer die not nominate his defence representative despite opportunities granted. He did not attend the enquiry which was held ex parte. The Apex Court interfered with the finding of the High Court that it was a case of no evidence. It has been held that when the charged officer does not attend the enquiry, he cannot later on contend that the Enquiry Officer ought not to have relied upon certain documents. Moreover, that was a case where the charged officer did not avail the alternative remedy of appeal which was taken note of by the Apex Court. Therefore, it is quite evident that the present case is clearly distinguishable on facts. 46. Moreover, that was a case where the charged officer did not avail the alternative remedy of appeal which was taken note of by the Apex Court. Therefore, it is quite evident that the present case is clearly distinguishable on facts. 46. While it is true that petitioner was a member of a disciplined force and as such he was required to maintain a high standard of discipline notwithstanding personal problems and tragedies faced by him. But at the same time, it also does not mean that a member of a disciplined force like the CRPF is denuded of the right to a fair procedure in a departmental proceeding even if it is held ex parte. In the context of the Army Act, 1950, the Apex Court in the case of Lt. Col. Prithi Pal Singh Bedi v. Union of India, AIR 1982 SC 1413 held that a person subject to the Army Act does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution. 47. Therefore, having regard to the above and in the facts of the present case, this court is of the considered opinion that non-appointment of a Presenting Officer in the disciplinary proceeding held against the petitioner despite being an ex parte one had vitiated the disciplinary proceeding and the consequential penalty imposed. Accordingly, issue No. 3 is answered in favour of the petitioner. 48. Issue No. 4: Therefore, from the discussions made above, court is of the unhesitant view that imposition of the penalty of dismissal from service on the petitioner is wholly unwarranted and clearly untenable. This issue is answered accordingly. 49. For all the aforesaid reasons, writ petition deserves to be allowed and is accordingly allowed. The impugned orders declaring the petitioner to be a deserter and imposing the penalty of dismissal from service are hereby set aside and quashed. Since petitioner did not render service for the period from 19.5.2005, he would not be entitled to back-wages for the period from 19.5.2005 till his superannuation on 31.3.2008. However, petitioner would be deemed to be in service till the date of his superannuation on 31.3.2008 for all other purposes including for the purpose of pension and other retirement benefits. 50. No costs. ...