Gauhati High Court
Constable No. 9087100 Robin Chandra ... vs The Union Of India And Ors on 13 October, 2025
Page No.# 1/18
GAHC010194612011
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5831/2011
CONSTABLE NO. 9087100 ROBIN CHANDRA BHUYAN
SON OF SRI DHIREN CHANDRA BHUYAN R/O VILL- NOPUBOTHORIA P.O.
BORGHULI P.S. KALIABOR DIST. NAGAON, ASSAM
VERSUS
THE UNION OF INDIA and ORS
REP. BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI, 104,
NORTH BLOCK, NEW DELHI-110001.
2:THE DIRECTOR GENERAL
SASHASTRA SEEMA BAL
EAST BLOCK- V
R.K. PURAM
NEW DELHI-110066.
3:THE DIVISIONAL ORGANISER
SASHASTRA SEEMA BAL
A.P. DIVISION
ITANAGAR
ARUNACHAL PRADESH.
4:THE DIRECTOR GENERAL OF SECURITY
OFFICE OF THE COMMANDANT GROUP CENTRE
SSB
TEZU
DIST. LOHIT
ARUNACHAL PRADESH
PIN-792001
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5:THE DEPUTY INSPECTOR GENERAL
SECTOR HEAD QUARTER
SASHASTRA SEEMA BAL MUZAFARPUR
BIHAR
PIN-842001.
6:THE COMMANDANT
GROUP CENTRE
SSB
TEZU
DIST. LOHIT
ARUNACHAL PRADESH
PIN-792001.
7:THE COMMANDANT
SASHASTRA SEEMA BAL 13TH BATTALION
PIPRAKOTHI P.O. PIPRAFACTORY DIST. EAST CHAMPARAN
BIHAR
PIN- 845429
Advocate for the Petitioner : MR.P K BARUAH, MR.N K KALITA,MR.D BORAH,MS.R
RAHMAN,MSR RAJBONGSHI
Advocate for the Respondent : MS.B SARMA, MR.M BHAGABATI,ASSTT.S.G.I.,C.G.C.,
BEFORE
THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
For the Petitioner : Mr. D. Borah, Advocate.
For the Respondents : Ms. B. Sarma, CGC.
Date of Hearing : 25.07.2025
Date of Judgment & Order : 13.10.2025
JUDGMENT & ORDER (CAV)
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1. Heard Mr. D. Borah, learned counsel for the petitioner. Also heard Ms. B.
Sarma, learned CGC representing the respondent/Union of India.
2. The present application, filed under Article 226 of the Constitution of
India, assails an order dated 31.12.2004, by which the petitioner was
removed from service.
3. The fact in a nutshell is that while the petitioner was employed as a
constable driver under the CRPF was on earned leave for a period of 60
days w.e.f. 20.11.1995 to 18.01.1996. As he had not resumed his duty
thereafter, a charge-sheet dated 06.04.1996 was issued to the petitioner
proposing an enquiry in respect of two charges.
4. The essence of the first charge brought against the petitioner is that on
expiry of earned leave on 18.01.1996, the petitioner overstayed without
any leave or permission from the competent authority and till the date of
the charge-sheet, i.e. 06.04.1996, he had not resumed duty. The second
charge against the petitioner is that, upon the expiry of his leave, he had
not resumed his duties and had retained the Government kits allotted to
him, as well as his Identity Card, which constitutes misconduct.
5. Along with the charge memo, a list of documents on the basis of which
the charges were sought to be proved, as well as a list of the witnesses
proposed to be examined, were enclosed.
6. The petitioner filed a reply, stating that he could not resume duty upon
the expiry of his leave due to pressing domestic problems. As his domestic
problems persisted, the petitioner offered to resign from service. The
petitioner in the aforementioned letter also agreed to deposit the
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Government kits allotted to him, as well as his identity card, in due course.
7. The matter could have rested there, given the resignation proposal. Be
that as it may, the disciplinary authority appointed an enquiry officer to
enquire into the charges levelled against the petitioner.
8. Though it was the stand of the employer that the enquiry officer issued
several notices informing the petitioner of the dates of the proposed
enquiry and requiring his presence in the enquiry, the petitioner contended
that none of the aforesaid notices were served on him. He did not know the
dates of the enquiry.
9. The enquiry proceedings were thereafter held ex parte, and at the
conclusion thereof, the enquiry officer, by reports dated 21.06.1996 and
23.09.1996, held that both charges against the petitioner had been
established. A copy of the report of enquiry along with the show cause
notice proposing the penalty of removal from service was stated to be
issued to the petitioner on 21.11.1996, and though the petitioner received
the said documents, he did not respond, whereafter by final order dated
10.12.1996, the penalty of removal from service was imposed on the
petitioner.
10. After several attempts to have the order of removal from service recalled
and rectified, the petitioner approached this court by filing WP(C)
3511/1999, assailing the final order dated 10.12.1996, which imposed a
penalty of removal from service. In the meantime, in a court of enquiry
instituted under Rule 31 of the CRPF Rules by order dated 26.03.1996, the
petitioner has been declared a deserter with effect from 19.01.1996.
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11. This court, under its judgment and order (oral) dated 13.11.2003, passed
in WP(C) 3511/1999, held:
(i) The essence of the charges levelled against the petitioner is one
relating to his unauthorised absence.
(ii) The contention of the writ petitioner that he was prevented from
joining the service by good and sufficient reasons, which were
beyond control and evidence that the petitioner could have brought
in his defence, and therefore, the validity of the ex parte enquiry
held against the petitioner is the crucial aspect of the case.
(iii) Though notices were sent by registered post to the writ
petitioner and claimed to be duly served, there is no material to
show that notices of enquiry were served on the petitioner and that,
despite such service, the petitioner did not participate in the enquiry.
(iv) The argument of the Union of India that, as notices have been
sent by registered post, a presumption should be drawn regarding
proper service is not tenable in the absence of any enabling
provision in the Rules similar to those contained in Order V Rule XIX
of the Code of Civil Procedure. Such a conclusion was drawn based
on the decision of the Hon'ble Apex Court in the case of Union of
India & Ors. vs Dinanath Shantaram Karikar and Ors.
reported in AIR 1998 SC 2722 in which it was held that in a
disciplinary proceeding, the documents sent by registered post can
be treated to have been served only when it is established that it
was served to the addressee.
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(v) The ex parte enquiry held against the petitioner does not confirm
the principle of natural justice, and the petitioner was not given any
opportunity to contest the proceeding initiated against him.
(vi) The denial of fair opportunity to the petitioner would go to the
root of the matter and vitiate the proceeding as a whole, including
the report of enquiry and the final order dated 10.12.1996 passed
on that basis.
(vii) The court accordingly set aside the order dated 10.12.1996
directing reinstatement of the petitioner in service and deemed the
petitioner to be in service all along; the court refused to grant back
wages at that stage.
(viii) Finally, it was observed that notwithstanding the direction
passed, if the disciplinary authority is of the view that the enquiry
held against the petitioner in respect of the charges should be held
afresh, the respondent authorities will be at liberty to do so subject
to the condition that any such de novo proceeding, if initiated
against the petitioner will be brought to its logical conclusion at the
earliest and without any delay.
12. Accordingly, by an order dated 12.03.2004, the Commandant 13 th Bn.SSB,
Piprakothi decided to have a further enquiry under the provisions of CCS
(CCA) Rules 1965 against the petitioner based on the allegation that led to
the imposition of a penalty of removal from service. Under the said order,
the petitioner was treated as being under suspension, effective from
10.12.1998, and was to remain under suspension until further order. The
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period of absence from removal from service up to reinstatement w.e.f.
11.12.1996 to 29.02.2004 will be regularised separately on completion of
the proceedings.
13. Subsequently, a Memorandum dated 18.03.2004 was served upon the
petitioner proposing to hold an enquiry under Rule 27 of the CRPF Rules,
1955. The articles of the two charges remain the same as it was levelled in
the first enquiry.
14. An enquiry officer was appointed on 16.03.2004 under Rule 27 of the
CRPF Rules, 1955. Thereafter, on 30.10.2004, the petitioner was furnished
with 2nd show cause notice based on the Enquiry Report submitted by the
Enquiry Officer. Agreeing with the findings of the enquiry officer that the
articles of charges were proved, the petitioner was proposed to be removed
from service. The petitioner filed a reply on 08.11.2004. Subsequently, the
final order dated 31.12.2004 was passed. The suspension period and the
leave of stay period were directed to be regularised separately. The
petitioner pursued the matter thereafter, issued legal notice etc. and
preferred an appeal under Rule 23 of the CCS (CCA) Rule, 1965; however,
the appeal was kept pending thereafter. The petitioner issued a reminder
on 07.02.2011, and when nothing was forthcoming, the present writ
petition was filed.
15. Mr. Bora, learned counsel for the petitioner, argues that the language of
the charges levelled clearly demonstrates that it was issued under Section
11(1) of the CRPF Act, 1949, inasmuch as absenting a member of the force
without leave or over staying without sufficient cause beyond leave granted
is relatable to Section 10 (m) of the CRPF Act, 1949. Therefore, when the
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charges are under Section 11(1) of the CRPF Act, 1949, the punishment
should be one that is incorporated under it.
16. According to him, the petitioner demonstrated sufficient grounds/ cause
for his overstaying, and the order dated 23.06.1996, by which the
petitioner was declared a deserter, is illegal and without any basis.
According to him, the punishment meted out to the petitioner is highly
excessive and disproportionate to the actual offence, which is "a less
heinous offence" as per Section 10 (m) of the CRPF Act, 1949. The learned
counsel places reliance on the judgment of the Hon'ble Supreme Court in
Shri Bhagawan Lal Arya vs. Commissioner of Police, Delhi and Ors.,
reported in (2004) 4 SCC 560.
17. The learned counsel for the petitioner further contends that there is no
"animus deserendi" on the part of the petitioner to desert his unit;
therefore, the proper provision of law was never applied in his case.
According to him, since the petitioner was never in prison nor charged
under Section 9 for desertion, the penalty of removal could not have been
imposed upon him. In support, he places reliance on the decision of a
Coordinate Bench in Kukheswar Saikia vs. Union of India & Anr.,
reported in (2002) 3 GLT 336. According to him, the CRPF Rules, 1955,
are not exhaustive, and recourse must be made to the CCS (CCA) Rules,
1965, when there is ambiguity and doubt. The respondent themselves
stated that the enquiry would be conducted as per the CCS (CCA) Rules,
1965. Therefore, all meaning and purport, the proceeding was initiated
under CCS (CCA) Rules, 1965.
18. Mr. Bora also contends that the Enquiry Officer was appointed on the
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same date as the issuance of the charge memo; no opportunity was ever
granted to the petitioner to submit his defence before the appointment of
the Enquiry Officer as per Rule 27 of the CRPF Rules, 1955. Therefore,
there was a violation of the principle of natural justice. According to him, no
opportunity to file a written statement of defence under Rule 14(4) of the
CCS (CCA) Rules, 1965 was also granted. Thus, there was a violation of the
principle of natural justice.
19. It is also his contention that no presenting officer was appointed to
present the case. The enquiry officer has acted as both enquiry officer and
presenting officer, i.e. both as prosecutor as well as judge in the case,
thereby leading to violation of the principles of natural justice.
20. Per contra, Ms. B Sarma, learned CGSC, referring to the affidavit-in-
opposition filed by the Dy. Inspector General contends that the petitioner
appeared before the enquiry officer on 22.04.2004, and the articles of
charges were explained to the delinquent and asked for other formalities.
The final hearing was held on 20.09.2004. It is their further stand that
during the course of the enquiry, the petitioner was given full opportunity to
defend himself and was also asked to cross-examine the PWs, which the
petitioner refused. According to them, he was also asked to produce any
other witness or document in his favour if he wished to do so, but he did
not produce any defence witnesses or defence exhibits in his defence.
While admitting that the disciplinary authority appointed no presenting
officer, the same shall not vitiate the proceeding as the petitioner did not
raise any objection in this regard. A reasonable opportunity for filing a
defence statement during the course of the enquiry was offered to the
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petitioner.
21. I have given anxious consideration to the submission advanced by the
learned counsel for the parties.
22. From the argument of the petitioner, it is seen that the petitioner
challenges the orders primarily on the two grounds in essence, the charges
are at most amounts to an unauthorized absence, not desertion; when
charges were admitted under Section 11(1) of the CRPF Act, 1949 and
procedure followed was under Rule 27 of the Central Reserve Police
Rules, 1955. Secondly, while conducting the enquiry, the procedural
safeguard was violated as no defence assistance was provided under Rule
27.
23. Before proceeding further, let this court consider the statutory framework.
24. Section 9 of the Act encompasses "More heinous offences" within its
scope, and under Section 9(f), includes desertion.
25. Section 10, on the other hand, brings under its fold the "Less heinous
offences". Absence without leave or without sufficient cause, overstaying
leave granted, under Section 10 (m), is a "Less heinous offence".
26. Section 11 provides for minor punishment. Section 11 (1) authorises the
commandant or any other authority or officer, as may be prescribed, to
inflict punishment enumerated under Clause (a) to (e), which are minor
punishments.
27. In terms of Section 9, punishment for more heinous offences is
transportation for life for a term not less than 7 years or with imprisonment
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for a term which may extend to 14 years or with a fine which may extend
to pay 3 months pay or with a fine to the extent in addition to such
sentence of transportation or imprisonment. For less heinous offences, the
prescribed punishment is imprisonment for a term that may extend to one
year, or a fine of up to three months' pay, or both.
28. Rule 31 deals with the procedure in the event of a Court of Enquiry for
inflicting punishment for desertion, as defined under Section 9(f), and also
for absence without leave under Section 10(m). It prescribes that such a
procedure will be initiated when a member of the force does not return of
his own free will or is not apprehended within 16 days of the
commencement of the desertion, absence or overstaying of leave.
29. On the other hand, Rule 27 under Chapter VI, which deals with discipline,
prescribes the procedure for awarding punishment. The table appended in
the said Rule prescribes that punishment for dismissal or removal from the
force is to be awarded by the commandant after a formal departmental
enquiry.
30. Further, Section 27 of the Act, 1949 provides the procedure for conducting
a departmental enquiry after the issuance of a charge memo, including
appointment of an enquiry officer and recording of evidence. It further
provides the right of a delinquent member to have the assistance of a
defence nominee during an enquiry.
31. In the backdrop of the aforesaid legal framework, it is very important to
record the charges framed against the petitioner, which are quoted herein
below:
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"ARTICLE OF CHARGE-1:-
That the No.9087100 CT/DVR Robin Chandra Bhuyan "HQ" Coy 13th
Bn. SSB, Piprakothi while functioning as Constable / Driver during
the period committed misconduct/ remissness in the
discharge of his duties in his capacity as a member of the
force under Section-11(1) of CRPF Act, 1949 in that he when
granted 60 days carned leave w.e.f. 20.11.1995 to 18.01.1996, did
not resume duty after expiry of leave, overstayed at his own
without any leave or permission from the competent
authority and still so absent in spite of serving re-joining
notices to resume duty vide this office memo No.
GCT/EST/PF/RCB/96/1350-52 dated 27.01.1996, No.
GCT/Est/PF/RCB/96/2093-95 dated 12.02.1996 with copy to Goan
Bura, Napubthoria, No. GCT/EST/PP/RCB/96/3252-53 dated
07.03.1996 and No.GCT/EST/PF/RCB/96/2144 dated 13.02.1996 to
S.P Nagaon District (Assam), unbecoming of a member of the
force. He also has not responded to the Correspondence/rejoining
notice etc. served by the Commandant, Group Centre, SSB, Tezu to
resume duty.
ARTICLE OF CHARGE-II
That the No.9087100 CT/DVR Robin Chandra Bhuyan, "HQ" Coy
13th Bn SSB Piprakothi (Bihar) while functioning as Constable/Driver
during the period committed misconduct in the discharge of
his duties in his capacity as a member of the force under
section 11 (1) of CRPF Act, 1949 in that he had not
deposited Govt. kits and Identity Card bearing No. 31081 dated
16.06.1990 issued from GC, Hqr are still in his possession."
(emphasis supplied by the court)
32. From the aforesaid charge, it is clear that both the charges are under
Section 11 (1) of the CRPF Act, 1949.
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33. The Memorandum dated 18.03.2004 clearly stipulates that the enquiry
was conducted in accordance with Rule 27 of the CRPF Rules, 1955. The
relevant portion is quoted herein below:
"The undersigned proposes to hold and Inquiry against No.
9087100 Const/ Driver Rabin Ch. Bhuyan "HQR" Copy of this
Battalion under Rule 27 of the Central Reserve Police Rules,
1955. The substance of imputation of misconduct/ remissness/
disobedience in his capacity as a member of the force in respect of
which the enquiry is proposed to the held is set out in the enclosed
statement of articles of charge (Annexure-I). A Statement of
imputation of such misconduct/ remissness in his capacity as a
member of the force in respect of each articles is enclosed as
(Annexure). A list of documents by which and a list of witness by
whom the article of charges are proposed to be sustained are also
enclosed (Annexure III & IV) respectively.
This receipt of this memorandum may please be acknowledged."
34. From the petitioner's reply, it is evident that he has not denied overstaying
his leave. It is also an admitted position that he explained his overstaying
and also proposed to resign. In the considered opinion of this court, in the
aforesaid backdrop, the matter could have rested there. A similar view was
expressed in the Coordinate Bench in its order dated 13.11.2003 passed in
WP(C) 3511/1999. However, the matter proceeded as recorded
hereinabove.
35. From the show cause, two charges and the memorandum initiating the
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proceeding, leaves no doubt in the mind of the court that the authorities
considered the case of the petitioner as a "Less heinous offence" for the
petitioner over staying leave granted to him without sufficient cause as
included under Section 10 (m) of the Act, and therefore proposed minor
punishment under Section 11 (1) and they opted to proceed against him
under Rule 27, decision taken therein is subject matter here.
36. After perusal of the material, this court is of the opinion that, even if it is
assumes that the two charges are established and that the petitioner had
admitted in his reply that he over stayed leave, the same in the given fact
of the present case projected by the employer, do not constitute heinous
offence under Section 9(f)of the CRPF Act, 1949 instead it is less heinous
offence under Section 10 (m) of the Act, 1949.
37. This court would not hasten to add that when charges were framed under
Section 11(1), it must be tested on the parameter of unauthorised absence,
without importing the aggravated concept of desertion. Unauthorised
absence connotes absence without leave or permission but without an
intention to abandon the service permanently. It is essentially a disciplinary
lapse and falls within the purview of Section 11 (1). At the same time,
desertion is a graver offence under Section 9 requiring proof of not only
physical absence (factum of separation) but also the mental element of
animus deserendi, i.e. the intention to permanently sever ties with the
force.
38. The Hon'ble Apex Court in long line of decision has consistently held that
mere prolong absence does not ipso-facto amount to desertion; the
element of intention must be proved or reasonably inferred from the
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conduct, which is lacking in the present case inasmuch as recorded
hereinabove, the employer proceeded with framing charges under Section
11(1) of the Act, 1949 and conducted the enquiry based on which the
penalty of removal from service was inflicted, was under the Rule 27 and
not Rule 31. Regarding proceedings under Section 31 involving desertion,
the same was noted by the Coordinate Bench in its earlier decision
dated.13.11.2013, but preferred to remand the matter after setting aside
the punishment of removal, which has attained finality.
39. Once the Coordinate Bench under its order.13.11.2013 sets aside the
removal order for violation of principles of natural justice and directs that
the petitioner be reinstated in service; the decision taken under Rule 31
declaring the petitioner to be a deserter cannot independently survive,
inasmuch as the foundation of removal becomes invalid. It is essential to
record that Rule 31 is an administrative closer of employer employee
relation for long and unauthorised absence; however, in the case in hand,
the petitioner was reinstated, subsequent to the decision taken under Rule
31 and therefore, the decision taken under Rule 31 in the given facts of the
present case, loses its relevance, more particularly, when de-novo
proceeding was also initiated.
40. In the considered opinion of this court, when the charges were alleged to
be under Rule 11(1) of the CRPF Act, 1949, and unauthorised absence, the
major penalty of removal from service, in the given facts of the present
case, is shockingly disproportionate and impermissible under the said Rules.
This court also takes note of the finding of the coordinate bench in its order
dated 13.11.2013, passed in WP© 3511/1999, that the essence of charges
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levelled against the petitioner is one relating to his unauthorised absence.
Such determination had, in the meantime, attained finality, and the
subsequent charges levelled against the petitioner are exactly similar to
those which were levelled earlier.
41. Thus, the penalty of removal, in the given facts of the present case and
for the reason recorded herein, was not only shockingly disproportionate,
but also did not attract such a punishment in the backdrop of the facts and
provisions of law.
42. Now coming to the arguments of the learned Counsel for the petitioner on
procedural lapse, there is no doubt in the mind of this Court that, while
absence of a presenting officer as mandated under Rule 27 of the CRPF
Rules, 1955, in an enquiry proceeding, will require the enquiry officer to be
prosecutor and Judge and in such a situation, the enquiry may be vitiated
for breach of natural justice, however, in the given fact of the present case,
what cannot be over-looked is that admittedly, the delinquent did not raise
objection at the first instance and/or at the earlier point of time, which is
evident from the record. Beyond that, the records do not disclose any other
procedural lapse, as argued, inasmuch as the petitioner admits to having
overstayed the leave.
43. Having held so, this court cannot remain unmindful of the settled
proposition of law that when a court concludes that the punishment
imposed by the disciplinary authority is disproportionate to the gravity of
misconduct, it does not generally substitute its own assessment of the
appropriate penalty; instead, the established judicial approach is to remit
the matter to the disciplinary authority for reconsideration. This principle
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stems from the recognition that the authority imposing the punishment is in
the best position to evaluate the nature of misconduct and determine an
appropriate action within the framework of the service rule and regulation.
The judicial restraint in such matters ensures that courts do not usurp the
role of administrative authorities by engaging in executive decision-making.
(Ref: 2025 SCC Online SC 439).
44. Therefore, for the reason recorded hereinabove, without disturbing the
finding of the enquiry officer, the impugned penalty is quashed as
disproportionate and not being attracted in the given facts of the present
case. Accordingly, the disciplinary authority is directed to reinstate the
petitioner to service, with the liberty to impose a penalty commensurate
with Section 10(m).
45. While considering the back wages, this court has given its consideration to
the determination made in the earlier writ petition (WP(C) 3511/1999) that
such back wages was not given at that stage, however, taking note of the
fact that penalty is held to be disproportionate and not being attracted in
the given facts and the petitioner is ordered to be reinstated, it is directed
that the petitioner shall be paid 10% of back wages with effect from his
reinstatement on 01.03.2004 pursuant to this court's earlier order dated
13.11.2003 passed in WP(C) 3511/1999.
46. While parting with the record, it is made clear that the employer shall be
at liberty to have due assessment of the fitness of the petitioner to
continue him as a member of the force and also shall be at liberty to take
decision(s) in this regard, but strictly in accordance with law.
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47. The File No. 05 (D.E. Correspondence File No. 9087100 ct (Dur) RC
Bhuyan be sent back to Ms. Sarma.
JUDGE
Comparing Assistant
