J&K and Ladakh High Court | Unauthorized Absence Exceeding 60 Days Amounts to Desertion Under CRPF Act | Dismissal From Service Held Justified
Sanchayita Lahkar
The High Court of Jammu & Kashmir and Ladakh Division Bench of Justice Sindhu Sharma and Justice Shahzad Azeem dismissed an intra-court appeal and upheld the dismissal of a constable from service in the Central Reserve Police Force. The Bench held that no error of fact or law was committed by the writ court while dismissing the petition challenging the disciplinary action. The Division Bench directed that the instant appeal, being devoid of any merit, stood dismissed, and interim directions, if any, subsisting as on the date of judgment, stood vacated. The record produced by the respondents was ordered to be returned to them through their counsel.
The appellant had been appointed as a constable in 1994 in the 84th Battalion of the Central Reserve Police Force and continued until 2001 when he reportedly suffered medical issues. In 2005, he applied for earned leave from October 27 to December 5, which was sanctioned. However, he did not return to duty on December 6, 2005, and was categorized as "Over Staying Leave". Notices were issued to him on December 14, December 22, and December 31 of 2005, directing him to report for duty. Despite these, he neither reported back nor responded.
Subsequently, the Officer Commanding lodged a complaint before the CJM-cum-Commandant-84 Battalion. On January 28, 2006, the Senior Superintendent of Police, Baramulla, was directed to apprehend the appellant. The SSP reported that the appellant was undergoing treatment in Srinagar, producing medical certificates from the Government Psychiatric Hospital, not from any hospital in Jammu as claimed by the family. On June 20, 2006, a Court of Inquiry was convened, and on July 30, 2006, the appellant was declared a "deserter".
A Special Messenger, HC/GD Mushtaq Ahmad, visited the appellant’s residence on August 2, 2006, and reported that the appellant was running a garment shop near his residence. On September 24, 2006, Articles of Charges were dispatched through registered post, followed by the appointment of an Enquiry Officer on October 24, 2006. The Commanding Officer also notified the appellant on October 21, 2006, about the departmental enquiry, directing him to respond within 15 days, failing which proceedings would be ex parte. The appellant did not respond. Further notices on December 19, 2006, and communications on December 20, 2006, with witness statements, also went unanswered. On January 23, 2007, the Enquiry Report was dispatched to the appellant for response, but again no reply was received.
Finally, based on the enquiry report, the Commandant dismissed the appellant from service on February 26, 2007. The appellant filed a writ petition in 2013, which was dismissed by the Single Judge on October 15, 2019, leading to the present appeal.
The appellant argued that his absence was due to health conditions and that he had informed the respondents. He further contended that he was never informed of the departmental enquiry and that natural justice was violated. The respondents countered that repeated notices and communications had been issued, including via special messenger and registered post, and that the appellant was found running a garment shop during the period of unauthorized absence.
The Division Bench recorded: “The perusal of record further makes it abundantly clear that the Respondents have, at every stage of the proceedings, duly informed the Appellant, either through registered post or tried to reach out to him through Special Messenger, so much so, a warrant was also issued through SSP, Baramulla.” It noted that there was no documentary proof of treatment in Jammu, and the medical records produced showed only outpatient treatment in Srinagar.
The Bench further observed: “Therefore, the plea of the Appellant that the departmental proceedings have been conducted against him in violation of the principles of natural justice is not only misconceived, but also self-defeating, rather, it appears that the Appellant never intended to resume his duties, as he was found to have been running a Garment shop, which itself substantiates the act of grave misconduct on the part of the Appellant.”
On the issue of punishment, the court stated: “From the above noted authoritative pronouncement of the Apex Court, there remains no iota of doubt that a member of uniformed force, who overstays his leave and never reports for duties, must be treated as a ‘deserter’, therefore, the penalty of dismissal from service of such member of uniformed force cannot be described as disproportionate to the alleged misconduct.”
It added: “Even otherwise, it is settled proposition of law that the scope of judicial review under Article 226 of the Constitution of India is very limited to the extent as to whether there is any mala fide or perversity in arriving at any decision and, as such, the power of judicial review cannot be stretched to replace the findings of fact arrived at in the Departmental Enquiry.”
The Division Bench recorded: “It goes without saying that the Appellant, being a member of a disciplined Force, is expected to observe a high standard of discipline and, if he is found lacking in any manner, then, undoubtedly, he is required to be dealt with sternly.”
The Division Bench concluded: “For the foregoing reasons, we do not find any error of fact or law committed by the Writ Court, while dismissing the Writ Petition vide impugned Judgment under challenge, therefore, same does not call for any interference. Accordingly, the instant appeal, being devoid of any merit, is dismissed. Interim direction(s), if any, subsisting as on date, shall stand vacated.” It also ordered: “The record produced by the Respondents be returned to them through their Counsel, with due dispatch.”
Advocates Representing the Parties:
For the Appellant: Mr Nisar Ahmad Bhat, Advocate
For the Respondents: Mr Tahir Majid Shamsi, Deputy Solicitor General of India with Ms Rehana Qayoom, Advocate
Case Title: Nasir Ahmad Parray v. Union of India & Others
Case Number: LPA No. 300/2019 in SWP No. 1822/2013
Bench: Justice Sindhu Sharma, Justice Shahzad Azeem
