THE HON'BLE SRI JUSTICE PULLA KARTHIK
WRIT PETITION No.41297 of 2014
ORDER:
Seeking to call for the records pertaining to Order No.R.XIII- 26/2012-Adm-III, dated 08.01.2013, passed by respondent No.2 and No.R.XIII-01/2013-EC-III, dated 08.08.2012 passed by respondent No.4 and Office Order No.P-8.5/2007/90-Adm, dt.04.04.2008 passed by the respondent No.5 and quash the same as illegal, arbitrary and against the principles of natural justice, the present Writ Petition is filed.
2) The case of the petitioner is that he joined in the Central Reserve Police Force in the year 2001 and since then discharging his duties without any complaint, whatsoever, till the order of dismissal. It is the further case of the petitioner that he was granted leave from 12.03.2007 to 10.05.2007 by considering his illness. Thereafter, he was supposed to report for duties on 11.05.2007, but he could not report due to sickness. Initially, he took treatment at his native place. As he was advised to take further treatment at Hyderabad, he went to Hyderabad for further treatment. Immediately, he sent a letter for extension of leave for further 20 days along with a medical certificate to the respondents. Thereafter, the doctors on certain tests came to the conclusion that the petitioner was suffering with typhoid, for which, he undergone PK, J 2 WP_41297_2014 treatment. Further, due to stress also, his condition was not good. Thereafter, when he went to his native place, his father suffered chest pain. Thus, due to stress, ill-health and family problems, he could not report to duty immediately after the expiry of the leave period. It is the further case of the petitioner that immediately, on recovery, he has reported at the office of the fourth respondent along with medical certificate and requested for reinstatement along with representation. The fourth respondent, on receipt of the same, informed the petitioner that he was dismissed from service, against which, the petitioner filed appeal, review and revision, which went in vain. Hence, the petitioner is before this Court by way of this writ petition.
3) Heard Sri K. Jagadishwar Reddy, learned counsel for the petitioner, and Sri Krupa Sagar, learned counsel representing Sri Gadi Praveen Kumar, learned Deputy Solicitor General of India, for the respondents.
4) Learned counsel for the petitioner has contended that respondent No.5 has failed to follow the procedure before declaring the petitioner as 'Over Stay Leave' as contemplated under CRPF Act, 1949, and Rules thereunder and no order of dismissal was communicated to the petitioner till he filed an appeal before the fourth respondent. It is further contended that the respondents PK, J 3 WP_41297_2014 ought to have seen that the petitioner has reported before respondent No.5 stating that he was suffering from typhoid fever, as such, sought for extension of leave for about 20 days and thereafter he undergone treatment under Civil Assistant Surgeon, Area Hospital, for his illness due to stress and copies of the said medical records were also furnished to the appellate as well as revisional authority. Without considering the same, the authorities have rejected the appeal as well as the revision filed by the petitioner. It is further contended that the respondent authorities conducted enquiry without serving a copy of charge sheet and without affording an opportunity to the petitioner to explain the reasons. Further, an ex parte enquiry was conducted by giving a go-by to the Rules. Therefore, he prayed to allow the writ petition.
5) Per contra, learned Standing Counsel for the respondents has contended that the petitioner was enlisted in CRPF on 05.09.2001 and posted at fifth respondent Battalion. Subsequently, Earned Leave for sixty days w.e.f.12.03.2007 to 10.05.2007 was granted to him and after availing the said leave, he was supposed to report to duty on 11.05.2007, but he failed to do so and over-stayed the leave w.e.f.11.05.2007 without any permission or sanction from competent authority. It is further contended that he was directed to report to the duty vide letters dated 14.05.2007, 30.05.2007, 09.07.2007 by the 5th respondent PK, J 4 WP_41297_2014 and as the petitioner did not turn up duty, based on the complaint of Office of the 5th respondent, a warrant of arrest was issued to the Superintendent of Police, Medak District, vide CJM order No.W- II-03/07-EC-2 dated 11.07.2007 to apprehend the petitioner and produce before the Chief Judicial Magistrate, but he was neither apprehended nor he reported for duty. Hence, under Rule 31 (c) of CRPF Rules 1955, the petitioner was declared as 'deserter' from Force w.e.f.11.05.2007. Subsequently, a departmental enquiry was ordered vide Memorandum No.P-VIII-5/2007-90-EC-II dated 12.10.2007 against the petitioner. It is further contended that an enquiry was called upon through Office Memorandum dated 08.11.2007, but the petitioner has neither appeared before the Enquiry Officer nor submitted any reply in the departmental enquiry and therefore the Enquiry Officer submitted an ex parte enquiry report on 14.01.2008 stating that the charges were held to be proved. Based on the said enquiry report, the petitioner was dismissed from service w.e.f.04.04.2008 vide order passed by 5th respondent on 04.04.2008. Learned counsel has contended that the petitioner was given ample opportunity at every stage of enquiry to defend his case. But, the petitioner failed to appear before the authorities and all the correspondence letters sent to the petitioner were returned by the postal authorities, undelivered. The petitioner neither joined the duties nor replied to the letters sent to PK, J 5 WP_41297_2014 him. Hence, the respondents are justified in passing the dismissal order. Therefore, the learned counsel prayed to dismiss the writ petition. Learned counsel has relied on the judgment of the Hon'ble Supreme Court in Ex Sepoy Madan Prasad v. Union of India 1 in support of his contentions.
6) This Court has taken note of the submissions made by both the counsel.
7) A perusal of the record discloses that the petitioner was granted leave from 12.03.2007 to 10.05.2007 but even after expiry of the said period, he did not report to duty. Thus, he has over stayed beyond the leave period w.e.f.11.05.2007 without any permission/sanction of leave by the competent authority. Further, the petitioner was directed to report to duty forthwith vide letters dated 14.05.2007, 30.05.2007, 09.07.2007. As he did not turn up for duty, a warrant of arrest was also issued to the Superintendent of Police, Medak District, vide CJM order No.W-II-03/07-EC-2 dated 11.07.2007 for his apprehension. Consequently, he was declared as 'deserter' from the date of his unauthorized absence from the duty vide order of the 5th respondent dated 29.09.2007. Subsequently, the Memorandum of Charge was sent to his address through Registered Post vide letter No.P.VIII.05/2007-90-EC-I, dated 12.10.2007 by giving him ten days time for reply, if any. As 1 2023 INSC 656 PK, J 6 WP_41297_2014 the petitioner did not respond to the charge memo, an enquiry officer was appointed to conduct an enquiry vide order dated 08.11.2007. Due to non-receipt of any communication from the petitioner, the Enquiry Officer conducted the departmental enquiry ex parte, as per Rule 14 (2) of CCS (CCA) Rules, 1965. The record further discloses that the enquiry was conducted in accordance with the Rules and following the principles of natural justice. At every stage of enquiry, the petitioner was given ample opportunity to defend his case, but he failed to avail the same. Thus, it was established that the charges levelled against the petitioner were proved. Accordingly, the petitioner was awarded the punishment of dismissal from service vide order dated 04.04.2008. Further, the departmental enquiry proceedings reveal that the petitioner was remained dormant approximately for one year from the date of his over stayal till finalization of the departmental enquiry proceedings i.e. from 11.05.2007 to 04.04.2008. It is further revealed that the petitioner never made any correspondence or reported back in his Unit on his own during nearly four years of his absence period before filing the appeal dated 02.03.2012.
8) In this context, it is appropriate to refer to the observations made by the Hon'ble Supreme Court in Ex Sepoy Madan Prasad's case (referred supra) wherein at para 10, it has been held as under:
PK, J 7 WP_41297_2014 "Such gross indiscipline on the part of the appellant who was a member of the Armed Forces could not be countenanced. He remained out of line far too often for seeking condonation of his absence of leave, this time, for a prolonged period of 108 days which if accepted, would have sent a wrong signal to others in service. One must be mindful of the fact that discipline is the implicit hallmark of the Armed Forces and a non-negotiable condition of service."
9) In the case on hand, the over stayal of leave period is for more than four years. Therefore, in view of the ratio laid down by the Hon'ble Supreme Court, the prolonged period of over stayal by the petitioner cannot be countenanced.
10) In view of the laches on the part of the petitioner, detailed above, and the ratio laid down by the Hon'ble Supreme Court in Ex Sepoy Madan Prasad's case (referred supra), this Court does not find any error in the impugned orders warranting interference of this Court.
11) Accordingly, the Writ Petition is dismissed.
12) Miscellaneous petitions pending, if any, shall stand closed. No costs.
____________________ PULLA KARTHIK, J Date : 08-09-2023.
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