Gauhati High Court
Anuradha Kaluwar vs The Union Of India And 3 Ors on 14 November, 2025
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/17
GAHC010120442023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3245/2023
ANURADHA KALUWAR
W/O- LATE SANJIB KALUWAR,
R/O- VILLAGE- SOCIETY,
P.O- SILAPATHAR, DIST- DHEMAJI, ASSAM, PIN-787059
VERSUS
THE UNION OF INDIA AND 3 ORS
REPRESENTED BY THE SECY. GOVT. OF INDIA, HOME DEPTT., NEW DELHI
110001
2:THE DIRECTOR GENERAL OF ITBP
CGO COMPLEX
LODHI ROAD
NEW DELHI 110003
3:THE INSPECTOR GENERAL
ITBP
NORTH EAST FRONTIER
ITANAGAR 791111
DIST. PAPUMPARE
ARUNACHAL PRADESH.
4:THE COMMANDANT
49 BN. ITBP
BASAR
DIST LEPA RADA
ARUNACHAL PRDESH
PIN 79110
Advocate for the Petitioner : MR. B CHETRI, MR VINOD BASFOR,MRS H M PHUKAN
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Advocate for the Respondent : DY.S.G.I., MR H GUPTA (r-1)
Linked Case : WP(C)/2043/2021
ON THE DEATH OF SANJIB KUMAR KALUWAR
HIS LEGAL HEIRS MRS. ANU KALUWAR AND ORS. REP.
S/O DILIP KUMAR KALUWAR
R/O VILL. SOCIETY
P.O. SILAPATHAR
DIST. DHEMAJI
ASSAM
PIN 787059
1.1: ANU KALUWAR
W/O. LATE SANJIB KUMAR KALUWAR
VILL. SOCIETY
P.O. SILAPATHAR
DIST. DHEMAJI
ASSAM
PIN-787059.
1.2: HIMANGU KALUWAR
S/O. LATE SANJIB KUMAR KALUWAR
VILL. SOCIETY
P.O. SILAPATHAR
DIST. DHEMAJI
ASSAM
PIN-787059.
1.3: SIDDARTHA KALUWAR
S/O. LATE SANJIB KUMAR KALUWAR
VILL. SOCIETY
P.O. SILAPATHAR
DIST. DHEMAJI
ASSAM
PIN-787059.
APPLICANT NOS. 2 AND 3 ARE THE MINOR AS SUCH THEY ARE
REPRESENTED BY THEIR MOTHER MRS. ANU KALUWAR (APPLICANT NO.
1)
VERSUS
THE UNION OF INDIA AND 3 ORS
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REPRESENTED BY THE SECY. GOVT. OF INDIA
HOME DEPTT.
NEW DELHI 110001
2:THE DIRECTOR GENERAL OF ITBP
CGO COMPLEX
LODHI ROAD
NEW DELHI 110003
3:THE INSPECTOR GENERAL
ITBP
NORTH EAST FRONTIER
ITANAGAR 791111
DIST. PAPUMPARE
ARUNACHAL PRADESH.
4:THE COMMANDANT
49 BN. ITBP
BASAR
DIST LEPA RADA
ARUNACHAL PRDESH
PIN 791101
------------
Advocate for : MR. B CHETRI
Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
Date of hearing : 07.08.2025
Date of Judgment : 14.11.2025
Judgment and Order (CAV)
Heard Mr. B. Chetri, learned counsel for the petitioner and Mr. H Gupta,
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learned CGC for the respondents.
2] WP(C) No.2043 of 2021 was filed by the petitioner, namely, Sanjib
Kumar Kaluwar to set aside the order dated 07.09.2019 by which he was
declared as a Deserter and the order dated 14.11.2019 by which he was
removed from service. Subsequently, he expired on 26.11.2021 during the
pendency of the writ petition and thereafter, the widow of late Sanjib Kaluwar,
namely, Anu Kaluwar was substituted as a petitioner in WP(C) No.2043 of 2021
in place of the deceased petitioner. WP(C) No. 3245/2023 has been filed by the
widow of late Sanjib Kaluwar praying for family pension, arrear salary with effect
from 03.07.2019 and death-cum-retirement benefits and other allowances as
admissible under law, if required, by setting aside the impugned illegal deserter
order dated 07.09.2019 and removal from service dated 14.11.2019 which
orders are impugned in WP(C) No. 2043 of 2021. Further prayer in this petition
is for a direction to the respondents to provide prospective financial the benefits
to the widow petitioner for her husband's promotion to the post of Havildar
which was due on 24.12.2020. On these prayers, these two petitions have been
filed seeking directions from this Court.
3] The petitioner's late husband, namely, Sanjib Kumar Kaluwar initially
appointed in the rank of CT/GD vide Force No.070281603 on 09.07.2007 in the
Indo-Tibetan Border Police Force as Constable and was posted in Patiala,
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Punjab. Subsequently, he was posted at 49 Battalion at Basar in Arunachal
Pradesh. In the year 2019 the petitioner was entrusted with the duty of Liaison
Officer at ITBP Transit Camp, Likabali, Arunachal Pradesh. On 29.06.2019 the
petitioner's late husband suffered from abdominal pain and on 03.07.2019
because of his discomfort and pain suffered he returned home informing his
authority. He was treated by a doctor on 05.07.2019 at Dhemaji Civil Hospital
and was found to be suffering from acute jaundice. The concerned doctor by
medical advice dated 03.10.2019 and 24.12.2019 advised the late husband of
the petitioner to take complete rest and with continuation of medicines. This
fact was intimated to the authorities by the husband of the petitioner.
Subsequently, he started suffering from Insomnia, Amnesia etc, and he was
referred to and treated in the Neuro Psychiatry Department of the Assam
Medical College & Hospital at Dibrugarh on 02.01.2020, who prescribed
medicines and the petitioner's husband was advised to take bed rest. He was
continuously under treatment and advice of the doctor till 13.12.2020.
4] After his recovery from his ailments, the petitioner's husband
approached the authority but he was not given any response. Subsequently, he
was declared as a deserter by the respondent authorities by order dated
07.09.2019 and thereafter, he was removed from service by order dated
14.11.2019 on the ground of being absent without permission from any
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competent authorities as well as for non-payment of electricity bill etc. These
orders have been impugned in WP(c) No 2043 of 2021 by the petitioner's late
husband. Subsequently, he expired on 26.11.2021 during the pendency of the
writ petition.
5] The respondents have disputed the claims of the petitioner by filing their
affidavit-in-opposition and also by raising a preliminary objection. The petitioner
has also reiterated her contentions by filing rejoinder affidavit in both the writ
petitions. An Interlocutory Application, being IA (Civil) No. 557 of 2022, was
filed in WP(C) No. 2043 of 2021, whereby the widow and two minor children of
late Sanjib Kumar Kaluwar were substituted as writ petitioners in WP(C) No.
2043/2021. In that case, the widow substituted in place of late Sanjib Kumar
Kaluwar was one Anu Kaluwar, aged about 29 years. However, in WP(C) No.
3245 of 2023, the petitioner, who also claims to be the widow of late Sanjib
Kumar Kaluwar, is one Anuradha Kaluwar, also aged about 29 years. Learned
counsel for the petitioner submits that both Anu Kaluwar and Anuradha Kaluwar
are one and the same person and by oversight the name of Anuradha Kaluwar
was mentioned as Anu Kaluwar in IA (Civil) No.557 of 2022 of WP(C) 2043 of
2021 and accordingly, she was substituted.
6] Heard learned counsel for the parties. The pleadings available have
been perused. The records which are produced before the Court have also been
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perused.
7] The core issue before this Court is that the challenge has been made to
the order passed by the Respondent authority declaring the husband of the
petitioner's to be a Deserter order dated 07.09.2019 and the order of removal
from service dated 14.11.2019 due to unauthorized live. Section 20 of the Indo-
Tibetan Border Police (ITBP) Force Act, 1992 defines that any person who
deserts or attempts to desert the service shall, on conviction by a Force Court,
be punished to suffer imprisonment for a term which may extend to seven years
or less and in cases of desertion on active duty or under orders of active duty be
liable to suffer death or such less punishment as is in this Act mentioned.
Section 21 of the Act provides for Absence without leave or overstay or leave
without sufficient cause and on conviction by Force Court shall suffer
imprisonment for a term which may extend to three years or less punishment
under the Act.
8] There are three kinds of Force Courts which are described under Section
76 of Chapter-VII of the ITBP Act, 1992, namely, (a) General Force Courts, (b)
Petty Force Courts and (c) Summary Force Courts. As per Section 77 of the ITBP
Act, a General Force Court may be convened by the Central Government or the
Director-General or by any officer empowered in this behalf by warrant of the
Director-General. As per Section 78 of the ITBP Force Act, a Petty Force Court
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can be convened by an officer having power to convene a General Force Court
or by an officer empowered in this behalf by warrant of such any officer. The
composition of a General Force Court shall not be less than five officers and that
of a Petty Force Court shall not be less than three officers. A Summary Force
Court can be held by the commanding officer. The ITBP Force Act, 1992 has a
detailed procedure as to how to convene the Courts and how to proceed in
respect of Court proceedings including enquiries. Although desertion is not
defined in the Act, it has to be understood that desertion will amount to
deserting the force without intimating to the superior authorities.
9] It is one of the offences defined under Chapter III Section 20 of the Act.
The punishments which are awardable by the Force Courts are defined under
Section 51 of the Act. Under the said punishments, dismissal or removal from
service is mentioned at Section 51 (1) (c) of the Act. The Act also prescribes for
detention of members of the force during trial or enquiries conducted, if there is
a need for such detention of such employee in view of the offenses alleged.
Unlike other forces, the Act does not provide for arrest or detention because of
desertion by an employee. Desertion like other offenses defined as under
Chapter III Section 20 of the Act is required to be tried by the appropriate Force
Court.
10] Coming to the facts of the case, the petitioner's husband, upon
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suffering from health issues and after duly informing the higher authorities,
proceeded to his home and thereafter underwent medical treatment. After an
extended period of treatment in the hospital and upon being declared fit to
resume his duties, the petitioner reported to the higher authorities but was not
permitted to join. Subsequently, by the impugned order dated 07.09.2019, the
petitioner was declared as a deserter and thereafter, by the impugned order
dated 14.11.2019, the petitioner was dismissed and removed from service.
11] From the pleadings before this Court and the records presented,
although the respondents claim that notices were issued to the correct address
of the petitioner's husband, there is no order on record to show that these steps
were actually undertaken by the authorities before he was declared a Deserter.
There is a procedure prescribed under the rules to intimate the local police and
secure his arrest and detention, if required. Whether such process was followed
is not evident from the records. The respondents have also failed to explain
why, if the address of the petitioner's husband was known to the authorities, no
steps were taken to secure his presence before the Force Court prior to
proceeding with the enquiry that resulted in the issuance of the desertion order.
12] From the records it is seen that by order dated 05.08.2019 the
Commandant of 49th Battalion of ITB Police Force had issued a communication
to the various authorities including the SHO of the Silapathar Police Station and
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DIG, ITB Police, Delhi, the Superintendent of Police, Dhemaji, the Commissioner
of Police, Dhemaji, the District Collector, Dhemaji but no subsequent
communication is there to show that the petitioner's husband was apprehended
or an attempt was made to apprehend him from his last known address but his
presence could not be secured. No such orders are placed before the Court. The
proceedings against the petitioner appear to have been initiated initially on
account of non deposit of an amount of Rs.1,33,205/- relating to electricity bill
of the Transit Camp Likabali, ITBP, Arunachal Pradesh. In order to make
necessary enquiries, he was given movement order with a direction to report at
BHQ on 03.07.2019 by the In-Charge, Transit Camp, Likabali, ITBP. Although the
petitioner did not report in the BHQ, 49 th Battalion of ITB Police Force, he had
deposited an amount of Rs.1,20,000/- but the remaining amount of Rs.13,205/-
was not deposited. A Court of enquiry was constituted to enquire into the
allegations of the petitioner being a Deserter. The Court of enquiry returned a
finding and he was declared a Deserter from the Force with effect from
03.07.2019 by the office order dated 07.09.2019, which is assailed in the
present proceedings. Since the petitioner was found to be absent from duty
without prior permission of the competent authority, which is a punishable
offense under Section 21 (D) of the ITBP Act, 1992, the petitioner's husband
was served a notice to appear before the authorities and file necessary
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response, failing which it will be presumed that he is not interested to serve in
the organization and his retention in service will not be in the interest of the
Force.
13] This was also shown to be communicated to the Directorate of
Advertising and Visual Publicity, Ministry of Information Broadcasting or due
publication in English local newspapers in the district of Dhemaji. However,
there is no subsequent communication to show whether such publication was
ultimately made. There is also no communication to show as to why the Force
did not take adequate steps to apprehend the petitioner's late husband from his
last known address for securing his presence before the Force Court or the
authority which was conducting the enquiry.
14] Consequently, since the petitioner's husband did not appear, the
respondent authorities by order dated 07.09.2019 declared the petitioner's
husband as a Deserter and thereafter, he was removed from service by order
dated 14.11.2019 on the ground of being absent without permission from any
competent authorities.
15] The records placed before the Court do not contain any record of the
proceedings undertaken by the Force Court or by the Authority which conducted
the disciplinary proceedings.
16] Prima facie, there is no finding returned by the authority that the
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petitioner's husband had deserted the Force and because he refused to respond
to the show-cause notice issued and/or to participate in the proceedings. In this
context, it is necessary to refer to the judgment of the Apex Court rendered in
Krushnakant B. Parmar vs. Union of India and Another reported in (2012) 3 SCC
178. The Apex Court in the said judgment clearly distinguished between
unauthorized absence which is willful and unauthorized absence because of
reasons beyond his control. The Apex Court held that if the absence
(unauthorized absence) is the result of compelling circumstances under which it
was not possible to report or perform duty, such absence cannot be held to be
willful. The Apex Court held that unauthorized absence does not always mean
willful and deliberate absence from duty. It may be for different eventualities like
accident, illness, hospitalization, etc. which circumstances are beyond the
control of the employee. The Apex Court returned the finding on the materials
before it that the enquiry officer did not return a finding as to whether the
absence was willful and deliberate or because of reasons beyond his control. In
the absence of such specific findings, the Apex Court interfered with the findings
against the employee therein. Relevant paragraphs of Krushnakant B. Parmar
(supra) are extracted below:
"14. The Inquiry Officer noticed the aforesaid facts and held the appellant was unauthorisedly
absent between 3rd October, 1995 and 7-11-1995; 9-11-1995, 10.121995 and 2-8-1995.
However, while coming to such contention, the authority failed to decide whether such
absence amounted to misconduct. The evidence led by the appellant in support of his claim
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that he was prevented to sign the attendance register and to perform duty though noticed the
Inquiry Officer on presumption and surmises, held the charge proved.
15. Rule 3(1)(ii) and Rule 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964, relates to all
time maintaining integrity, devotion to duty and to do nothing which is unbecoming of a
Government servant and reads as follows:
"Rule 3 - General.
(1) Every Government servant shall at all times--
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a Government servant."
16. In the case of appellant referring to unauthorised absence the disciplinary authority
alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a
Government servant. The question whether `unauthorised absence from duty' amounts to
failure of devotion to duty or behaviour unbecoming of a Government servant cannot be
decided without deciding the question whether absence is wilful or because of compelling
circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible
to report or perform duty, such absence can not be held to be wilful. Absence from duty
without any application or prior permission may amount to unauthorised absence, but it does
not always mean wilful. There may be different eventualities due to which an employee may
abstain from duty, including compelling circumstances beyond his control like illness,
accident, hospitalisation, etc., but in such case the employee cannot b be held guilty of failure
of devotion to duty or behaviour unbecoming of a government servant.
18. In a departmental proceeding, if allegation of unauthorised absence from duty is made,
the disciplinary authority is required to prove that the absence is wilful, in the absence of
such finding, the absence will not amount to misconduct.
19. In the present case the inquiry officer on appreciation of evidence though held that the
appellant was unauthorisedly absent from duty but failed to hold that the absence was wilful;
the disciplinary authority as also the appellate authority, failed to appreciate the same and
wrongly held the appellant guilty.
20. The question relating to jurisdiction of the court in judicial review in d a departmental
proceeding fell for consideration before this Court in M.V. Bijlani v. Union of India wherein this
Court held: (SCC p. 95, para 25)
"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary
proceedings, however, being quasi-criminal in nature, there should be some evidence to
prove the charge. Although the charges in a departmental proceeding are not required to be
proved like a e criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact
that the enquiry officer performs a quasi-judicial function, who upon analysing the documents
must arrive at a conclusion that there had been a preponderance of probability to prove the
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charges on the basis of materials on record. While doing so, he cannot take into
consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He/cannot
shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the
basis of surmises and conjectures. He cannot enquire into the allegations with which the
delinquent officer had not been charged with."
21. In the present case, the disciplinary authority failed to prove that the absence from duty
was wilful, no such finding has been given by the inquiry g officer of the appellate authority.
Though the appellant had taken a specific defence that he was prevented from attending duty
by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register
and also brought on record 11 defence exhibits in support of his defence that he was
prevented to sign the attendance register, and also brought on record 11 defence exhibits in
support of his defence that he was prevented to sign the attendance register, this includes his
letter dated 3-10-1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad,
receipts fromSTD/PCO Office of telephone calls dated 29.09.1995 etc. but such defence and
evidence were ignored and on the basis of irrelevant fact and surmises the inequiry officer
held the appellant guilty."
The Apex Court, therefore, interfered with the findings of the authority.
17] Coming to the facts of the case, it is seen that there is neither an
enquiry report available in the records nor any report placed before the Court.
Even otherwise, since the petitioner's husband claims to have not been served
with a copy of the notice, nor have the respondents being able to place
materials to show that the notice had been duly served on the petitioner and/or
that he was conscious of the proceedings initiated against him, the entire
proceedings of the Force Court proceeded ex parte the petitioner.
18] This cannot be considered to be an enquiry or a proceeding by any
yardstick in the eye of law. It is as if the authorities were determined to pass an
order against the petitioner and conclude the proceedings by imposing the
punishment. The findings of such proceedings, if are allowed to sustain, it will
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be violative of the fundamental principles of natural justice as well as the
elaborate provisions regarding the procedure prescribed under the ITBP Act,
1992 read with the rules.
19] As have been discussed above, there is no explanation as to why the
authorities could not secure the presence of the petitioner's husband if the
version of the respondents is to be accepted that notice was duly served in the
address Available in the records/Service Book of the petitioner's husband. A
feeble attempt has been made by the respondents to submit that the notice was
served on the petitioner's husband as it was received by his father. There is no
material placed before the Court that the authorities have or the enquiring
authorities/ the Force Court had returned any finding that notice was duly
served as it was received by the father of the petitioner's husband and also that
the petitioner's husband at that point in time was residing together with his
father.
20] Under such circumstances, it cannot be concluded that the findings
arrived at by the authorities declaring the petitioner's husband as a Deserter by
the order dated 07.09.2019 or his removal from service by the impugned
dismissal order dated 14.11.2019 can withstand the scrutiny in the eye of law
and the same are therefore, required to be interfered with. It is ordered
accordingly. Ordinarily, this Court would have interfered with such orders and
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remanded the same back to the authorities for proceeding afresh by issuance of
appropriate orders. However, the fact remains that the petitioner's husband
expired during the pendency of the writ petition filed by him being WP(C) no.
2043 of 2021 and the late petitioner/ petitioner's husband was subsequently
substituted by his legal heirs comprising of his widow and two minor children.
Under such circumstances, it will be futile to remand the matter back for afresh
proceedings.
21] Since this Court has already come to a conclusion that the enquiry
proceeded ex parte without following the rigours prescribed under the act and
the rules in declaring the late petitioner as a deserter and thereafter, his
dismissal and removal from service and the same having been interfered with,
this Court is of the view that the impugned orders dated 07.09.2019 and
14.11.2019 having been interfered with by this Court as per the discussion
above, the widow of the petitioner will now be entitled to all the financial and
pensionary benefits. The period for which the petitioner's husband did not serve
after overstaying his leave, he will not be entitled to his salary for that period,
namely, 03.07.2019 to 13.12.2020. However, that period should also be counted
for his pensionary and other service benefits which his widow now will be
entitled too.
22] In view of the discussions above, it is not necessary to refer to the
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judgments pressed into service by the petitioner or the respondents. The
petitions accordingly stand allowed and disposed of in terms of the above. The
respondent authorities will work out the pensionary and other service benefits
payable to the widow of the late husband of the petitioner within a period of 60
(sixty) days from the date of receipt of a certified copy of this order.
23] These writ petitions are accordingly allowed and disposed of. No order
as to cost. The records placed before the Court are returned to learned CGC
through the Court Master.
JUDGE
Comparing Assistant
