Unauthorized Absence In Uniformed Force Beyond 60 Days Constitutes Desertion & Justifies Dismissal From Service: Jammu &Kashmir High Court

Background Facts

The appellant was appointed as constable in the 84 Bn of CRPF in 1994. He continued to serve until 2005 when he faced some medical issues. The appellant applied for earned leave from 27.10.2005 to 05.12.2005, which was duly sanctioned. However, the appellant did not report back for duty from 06.12.2005, after the expiry on account of his deteriorating health condition. The CRPF authorities issued several notices dated 14.12.2005, 22.12.2005, and 31.12.2005 to the appellant to resume duty. Despite this, the appellant neither reported back nor responded. A Court of Inquiry was convened on 20.06.2006. The appellant was declared a deserter on 30.07.2006. Later, it was found that he was running a garment shop near his residence, which cast doubt on his illness claim.

The respondents initiated a Departmental Enquiry. Articles of charge were served, and the appellant was repeatedly informed through registered posts and notices. He was asked to appear or submit his reply within the stipulated time. Despite this, he failed to participate, leading to an ex-parte enquiry. The authority passed an order of dismissal on 26.02.2007 on the basis of the enquiry report. The appellant later filed SWP No. 1093/2013, which was disposed of with a direction to consider his case. The respondents considered and rejected his claim vide order dated 03.08.2013. Aggrieved, the appellant filed SWP No. 1822/2013 challenging the dismissal order, but the Single Judge dismissed the writ petition on 15.10.2019.

Aggrieved by the same, the appellant filed an intra-court appeal against the judgment of the Single judge.

It was submitted by the petitioner that his absence from duty was not intentional but due to a serious medical condition, which made it impossible for him to report back after the expiry of his sanctioned leave. The petitioner contended that he had duly informed the authorities regarding his illness through representations, but the same was not considered in the right perspective. It was argued that the respondents never informed him about the initiation of the Departmental Enquiry or given a proper opportunity to defend himself. Further the appellant placed reliance on the Judgment in case titled State of West Bengal etc. v. M. R. Mondal and Anr that if any order is passed but not communicated to the affected party, same has no valid existence in the eye of law. It was further submitted that his case fell under the category of “less heinous offences” under Section 10(m) of the CRPF Act, 1949, and not a case of desertion.

On the other hand, it was submitted by the respondents that a Departmental Enquiry was initiated strictly in accordance with the CRPF Act, 1949 and Rules of 1955, wherein the appellant was given repeated opportunities to defend himself. It was also argued that the appellant's plea of illness was false and misleading as during verification, it was found that he was running a garment shop near his residence during the period of unauthorized absence.

Findings of the Court

It was observed by the Court that the appellant, after availing earned leave failed to report back for duty and continued to remain absent without sufficient cause. It was noted by the Court that repeated notices and communications were sent, and even a warrant was issued through the SSP Baramulla. It was also found that during this period, the appellant was running a garment shop near his residence, which falsified his claim of prolonged illness.

It was further observed that the medical prescriptions produced by the appellant only indicated outdoor treatment, and there was no evidence that his health condition was so serious that it prevented him from joining duty. It was also noted by the court that the attempt of the appellant and his family was to mislead the authorities by giving false information about his treatment in a private hospital at Jammu. Further the Rule 31 of the Rules of 1955 was observed by the court which deals with desertion and absence without leave. It states that if a force member, liable for trial under Section 10(m) of the 1949 Act, does not return voluntarily or is not apprehended within 60 days of absence, a Court of Inquiry must be convened. The findings are published after inquiry and the absentee is declared a “deserter” from the date of illegal absence.

The judgments of the Supreme Court in Union of India v. Datta Linga Toshatwad and Union of India v. Ghulam Mohd. Bhat were relied upon wherein it was held that when a force member remains absent without reporting back for a long period, it amounts to desertion. Hence, dismissal from service cannot be said to be disproportionate. It was emphasized that indiscipline in uniformed forces cannot be tolerated, and such misconduct warrants strict action.

It was held by the Court that the punishment of dismissal imposed on the appellant was fully justified and proportionate to the misconduct proved against him. It was held by the court that there was no error of fact or law committed by the Writ Court.

With the aforesaid observations, the appeal was dismissed.

Case Name : Nasir Ahmad Parray vs Union of India & Ors

Case No. : LPA No. 300/2019

Counsel for the Appellant : Nisar Ahmad Bhat, Advocate

Counsel for the Respondents : Tahir Majid Shamsi, DSGI with Rehana Qayoom, Advocate