Jammu & Kashmir High Court - Srinagar Bench
Mohammad Shahbaz Mir vs Union Of India & Others on 7 June, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 30.05.2024
Pronounced on: 07.06.2024
SWP No.181/2016
MOHAMMAD SHAHBAZ MIR ... PETITIONER(S)
Through: - Mr. Mir Majid Bashir, Advocate.
Vs.
UNION OF INDIA & OTHERS ...RESPONDENT(S)
Through: - Mr. Nazir Ahmad Bhat, CGSC.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner has challenged order dated 03.12.2012
issued by respondent No.4, whereby he has been dismissed
from service.
2) Briefly stated, case of the petitioner is that he was
appointed as a Constable with Central Reserve Police Force
(CRPF) in the year 1997 and was posted in 181 Bn of the
CRPF. The petitioner proceeded on leave with effect from
03.08.2011 to 30.08.2011 while his battalion was stationed
at Cherar-i-Sharief.
3) According to the petitioner, due to psychological
disturbances and chronic marital discord, he overstayed
the leave period and did not join his duties. He came to be
arrested pursuant to warrants of apprehension issued by
the authorities of the CRPF, whereafter he made a request
to the respondents to allow him to resume his duties, but
all his efforts went in vain. He served a legal notice upon
the respondents and in response thereto, he received
impugned communication dated 03.12.2012 informing him
that he has been dismissed from service.
4) The petitioner has challenged the impugned order on
the grounds that the same has been passed in violation of
the principles of natural justice and that the procedure
prescribed under Rule 27 of the CRPF Rules has not been
adhered to by the respondents. It has been further
contended that the petitioner is not well versed with Hindi
language and that all the communications including the
impugned communication have been issued by the
respondents in Hindi language which he cannot read and
understand.
5) The writ petition has been contested by the
respondents by filing a reply affidavit in which it has been
submitted that the petitioner was appointed as a Constable
with CRPF on 21.07.1997 and on 09.04.2010, he was
posted in 181 Bn. He was sanctioned twenty days earned
leave with effect from 03.08.2011 to 30.08.2011 and he was
expected to report to his duties on 31.08.2011. He is stated
to have overstayed his leave with effect from 01.09.2011
without any permission from the competent authority.
6) According to the respondents, the petitioner was
asked to report for duty by the Commanding Officer in
terms of letters dated 17.09.2011 and 31.10.2011 which
were sent to him through registered post at his residential
address, but he did not report for duty. Accordingly, vide
application dated 13.12.2011, a prayer was made to
Judicial Magistrate, 1st Class, Camp Commandant 181 Bn.
CRPF in terms of Section 10(m) of the CRPF Act, pursuant
whereto, warrant of arrest to apprehend the petitioner was
issued by the aforesaid Authority in terms of Section 16(2)
of the CRPF Act, which was sent to SSP, Bandipora, for
execution. However, the petitioner could not be
apprehended, as a result of which, vide order dated
20.04.2012, he was declared as deserter from force with
effect from 01.09.2011.
7) After following the aforesaid procedure, a
departmental enquiry was initiated against the petitioner.
The memorandum of charges is stated to have been issued
to the petitioner in terms of order dated 09.05.2012, and he
was asked to submit his reply within ten days. It has been
submitted that the petitioner did not respond to the
memorandum of charges and, accordingly, an Enquiry
Officer was appointed in terms of order dated 06.06.2012.
The Enquiry Officer is stated to have given ample
opportunities to the petitioner to appear before him, but he
failed to avail of these opportunities, as a result of which,
the Enquiry Officer proceeded to complete the enquiry in
exparte. The Enquiry Officer submitted his repot vide letter
dated 12.08.2012. In the meantime, on 29.08.2012, the
petitioner was apprehended and handed over to the 181 Bn.
on 30.08.2012, as a consequence whereof, the warrant of
arrest issued against him was cancelled.
8) The Disciplinary Authority is stated to have served a
communication dated 04.09.2012 upon the petitioner
giving him an opportunity to defend himself by producing
defence evidence/witnesses. In response to the said
communication, the petitioner is stated to have accepted all
the charges by stating that due to compelling domestic
reasons he was unable to resume him duties. In terms of
his application dated 01.09.2012, he made a prayer that he
may be discharged from service.
9) According to the respondents, before the request of the
petitioner for discharge from service could be considered by
the competent authority, the petitioner again deserted from
the camp on 09.09.2012. In this regard, a report was lodged
with Police Station, Cherar-i-Sharief. Vide communication
dated 10.10.2012, the Disciplinary Authority again gave an
opportunity to the petitioner to present himself before the
said Authority within a period of fifteen days, but he failed
to do so. In view of these circumstances, the Disciplinary
Authority proceeded to consider the enquiry proceedings
and other material and found that the petitioner is not fit
to be retained in the force which led to the passing of the
impugned order dated 03.12.2012 whereby the petitioner
has been dismissed from service. To lend support to their
contentions, the respondents have produced the record
relating to the enquiry.
10) I have heard learned counsel for the parties and
perused the pleadings and the record.
11) The admitted facts which emerge from the pleadings
of the parties are that the petitioner had proceeded on duly
sanctioned leave with effect from 03.08.2011 to 30.08.2011
and he was to resume his duties on 31.08.2011. It is not in
dispute that the petitioner did not resume his duties and
he overstayed the sanctioned leave with effect from
01.09.2011. It is also not in dispute that the petitioner did
not resume his duties at all and ultimately, he came to be
apprehended pursuant to the warrants of apprehension
issued by the competent authority of the CRPF whereafter
he was handed over to 181 Bn on 30.08.2012. The
petitioner has not disputed the contention of the
respondents that he again deserted CRPF camp on
09.09.2012, whereafter he never resumed his duties.
12) The only explanation tendered by the petitioner for his
unauthorized absence for about one year upto the date of
his apprehension and thereafter from the date of his second
desertion w.e.f 09.09.2012 is that he was facing some
domestic problems which prevented him from resuming his
duties. According to the petitioner, he had a marital discord
with his wife which had adversely impacted him
psychologically, as a result of which he was unable to
resume his duties. In this regard, the petitioner has placed
on record copy of the divorce deed.
13) A perusal of the divorce deed produced by the
petitioner reveals that the same has been executed on 1st
June, 2009. The petitioner has also placed on record a copy
of order dated 30.09.2010 passed by the learned Principal
District Judge, Bandipora, which reveals that there was a
dispute between the petitioner and his ex-wife with regard
to custody of the children. The said dispute has been set at
rest by the learned District Judge vide his order dated
30.09.2010.
14) The petitioner has deserted the Force with effect from
01.09.2011, which is about one year from the date the
custody dispute was decided by the court and about two
years after he had snapped his marital ties with his ex-wife.
The petitioner has not placed on record any material to
show that there were any emergent domestic issues being
faced by him at the time when he actually deserted the
Force. Therefore, even if it is assumed that the respondents
while holding enquiry against the petitioner have not
adhered to the principles of natural justice, still then, from
the own admissions and the documents of the petitioner,
there was no justification for him to remain absent from
duty.
15) The principles of natural justice do not operate in
vacuum. When the facts are admitted, the holding of fresh
enquiry and allowing opportunity of hearing to a delinquent
employee would be an empty formality. Thus, from the
material on record placed before this Court by the petitioner
himself, it can safely be stated that he had no justification
in remaining unauthorizedly absent from duty.
16) That apart, a perusal of the enquiry record shows that
the respondents have meticulously adhered to the
procedure prescribed under Rule 27 (c) of the CRPF Rules,
which govern the procedure for conducting a departmental
enquiry. The record shows that the Enquiry Officer has
addressed a number of communications to the petitioner
asking him to participate in the enquiry proceedings. In this
behalf postal receipts dated 23.06.2012, 04.07.2012,
13.07.2012 and 24.07.2012 are available in the enquiry
record, from a perusal whereof, it is discernible that
communications have been addressed by the Enquiry
Officer to the petitioner through registered post at his
residential address.
17) Because the petitioner had deserted the Force,
therefore, the only option available with the Enquiry Officer
in the present case was to send the communications to the
petitioner at his residential address. An employer is not
expected to launch a manhunt for an absconding employee
in the whole world. It is enough if an employer sends the
communications to an absconding employee at his
residential address. That is what has been done by the
Enquiry Officer in the present case. Therefore, it cannot be
stated that the Enquiry Officer has failed to follow the
principles of natural justice.
18) Even after having been apprehended pursuant to the
warrants issued by the competent authority, the petitioner
did not contest the proceedings before the Disciplinary
Authority. Instead he made an application before the
Disciplinary Authority on 01.09.2012 seeking his discharge
from service and admitting that he was unable to resume
his duties. While his said prayer was under consideration,
he again deserted the Force. In these circumstances, the
only option available with the respondents was to dismiss
19) Learned counsel for the petitioner has vehemently
argued that the petitioner is unable to read and understand
Hindi language and all the communications addressed to
him by the respondents are in Hindi language. He has also
contended that the application stated to have been
submitted by the petitioner before the Disciplinary
Authority admitting the charges and praying for his
discharge from service has not been written by the
petitioner and that he has been made to sign the said
application without understanding its contents.
20) In the above context, it is to be noted that the
petitioner while praying for grant of leave in his favour had
made an application which is in Hindi language. His
appointment orders are also in Hindi language. It is
amazing that the petitioner can understand Hindi language
when he applies for leave or when he is appointed to the
Force, but he is unable to understand the said language,
when he admits charges against him and when he is
dismissed from service. The contention of the petitioner in
this regard cannot be accepted at all.
21) The facts narrated hereinbefore clearly show that the
petitioner has been given ample opportunities by the
respondents before passing the impugned order. He has
been informed about the enquiry proceedings through
various communications sent to him through registered
post, but he did not respond to the same. He did not even
send a simple communication to the Enquiry Officer or the
concerned Commandant informing them about his
domestic problems. The petitioner is a resident of Kashmir
Valley and the Battalion with which he was posted was also
stationed in Kashmir Valley. The petitioner could have even
physically informed the Commandant about his domestic
problems. Instead of doing so, he chose to keep himself
away from his duties and did not even care to inform his
superiors about the reasons for his not joining the duties.
Even after his apprehension while his application for
discharge from service was under consideration, he again
chose to desert the Force. In such situation, the petitioner
cannot expect anything other than dismissal from service
from his employer.
22) For the foregoing reasons, I do not find any merit in
this petition. The same is, accordingly, dismissed. Interim
direction, if any, shall stand vacated.
23) The record be returned to learned counsel for the
respondents.
(Sanjay Dhar)
Judge
Srinagar,
07.06.2024
"Bhat Altaf-Secy"
Whether the order is reportable: Yes/No
