Roshan Mohammad vs Union Of India And Ors (Crpf)
2024 Latest Caselaw 1604 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

Roshan Mohammad vs Union Of India And Ors (Crpf) on 22 October, 2024

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                                    S. No. 12
                                                                    Regular list
      IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT SRINAGAR

                                SWP 1855/2016 CM(4628/2019)

     ROSHAN MOHAMMAD                                     ...Petitioner/Appellant(s)

     Through: Mr. H. Furrahi, Adv.
                                           Vs.
     UNION OF INDIA AND ORS (CRPF)                               ...Respondent(s)

     Through: Mr. Hakim Aman Ali, Dy. AG.
     CORAM:
          HON'BLE MR JUSTICE JAVED IQBAL WANI, JUDGE
                                       ORDER

22.10.2024

(Oral):

1. Petitioner in the instant petition filed under Article 226 of the constitution

has prayed for the following reliefs:

i. Certiorari quashing thereby impugned order dated 0-07-2016 to the effects the petitioner's removal from his services.

ii. Mandamus, commanding thereby respondents to reinstate the petitioner to his normal duties by paying him all emoluments to which he is entitled w.e.f. 05.10.2015.

iii. Mandamus, commanding thereby respondents not to give any effect to the ex-parte enquiry initiated against the petitioner by quashing the same to the effect it effects the right of the petitioner to be reinstated at the hands of competent authority by treating him as permanent employee Of the Unit.

iv. Mandamus, commanding thereby respondents to allow the petitioner to resume to his normal duty by paying him all emoluments to which he is entitled if he was on regular/normal duty of the Unit because of his ailment.

2. The facts on the strength of which the aforesaid reliefs have been sought by

the petitioner as stated therein are that the petitioner came to be appointed as a Constable General Duty by the respondent in Central Reserved Police

Force ( for short CRPF) on 03.04.2010 and came to be assigned Belt No.

105343334 and that the petitioner came to be granted 15 days casual leave

by respondent 3-herein, commencing form 14.09.2015 to 03.10.2015, and

that after availing the said leave, the petitioner could not resume his duties

on account of ailment of depression and after getting treated for the said

ailment w.e.f. 17.09.2015 till 12.07.2016, got declared fit for resuming duty

by the competent authority, and that SSP Kupwara in the meantime had

been called up by respondent 3 herein to arrest the petitioner being absent

from duty w.e.f. 05.10.2015 and that a notice in regard to said absence had

been issued in hindi script to the petitioner which the petitioner was not able

to understand and, as such, was unable to respond to, and that the said

warrant of arrest came to be followed by a notice issued by respondent 3

herein requiring the petitioner to submit his reply within ten days regarding

his unauthorized absence, which notice too, was in hindi script and the

petitioner not knowing hindi language was unable to respond to the said

notice as well and that on 28.02.2016, the respondent 3 informed the

petitioner that a Departmental Enquiry is being held against him under Rule

27-A of the CRPF Rules 1955 for being absent from duty, and that one

Shaurabh Yadav initially was appointed as enquiry officer and one Aakash

Sharma was appointed as Presiding Officer to preside the said enquiry

proceedings and that on 30.06.2016, the petitioner was apprised by the

enquiry officer that an ex-parte enquiry is being conducted against him and

that, in case he is willing to lead any defence in the said enquiry, he should

do that within 15 days time and that the enquiry proceedings as also the

statement of witnesses recorded therein the said enquiry again were furnished to petitioner in hindi script which the petitioner was not knowing

and yet again the petitioner was unable to respond to the same and that

finally the petitioner in terms of Order dated 30.07.2016 came to be

removed from service for being absent from duty unauthorizedly w.e.f.

05.10.2015, which is impugned in the instant petition as well.

3. Reply to the petition has been filed by the respondents wherein it is being,

inter alia, stated that the petitioner has suppressed and concealed material

facts while maintaining the petition and that the petitioner while working as

a Constable in the Force came to be granted 15 days casual leave w.e.f.

14.09.2015 up to 03.10.2015 and that the petitioner was supposed to report

back to his duty on 05.10.2015, which the petitioner failed to, whereupon

the competent authority sent communications dated 12.10.2015 and

26.10.2015 to the petitioner through registered post at his home address

calling upon him to report back to his duty which communications the

petitioner failed to respond to and continued to remain absent from duty

without permission of the competent authority and upon such failure, the

respondent 3 issued a warrant of arrest against the petitioner under Section

10(m) of the CRPF Act 1949, while exercising the powers of Chief Judicial

Magistrate under Section 16 of the Act of 1949, which warrant of arrest was

communicated for execution to the Senior Superintendent of Police

Kupwara, however, the petitioner neither could be arrested nor the

petitioner surrendered, and that in terms of Rule 31(a) of the Rules of 1955,

if a member of force does not return to his duty or is not apprehended after

overstaying leave within 60 days from the commencement of overstaying of

leave, the Commandant is authorized to hold a Court of enquiry against the

delinquent personal, and which enquiry was held against the petitioner and on the recommendations of the said Court of enquiry, the petitioner was

declared as a 'Deserter' with effect from 8th January 2016, and that the

petitioner, even thereafter, did not report back to his duties whereupon a

Departmental Enquiry came to be commenced against the petitioner in

terms of Rule 27-A of the Rules of 1955, and during the course of the

holding of said enquiry, a memorandum of charge was served upon the

petitioner vide letter dated 05th February 2016 to which the petitioner did

not submit any response, and two more notices were issued to the petitioner

during the course of said enquiry on 20th February 2016 and 6th March

2016 which notice as well the petitioner did not respond, and instead,

continued to remain absent from duty resulting into holding of the

Departmental Enquiry in ex-parte after following the due procedure

prescribed for holding such an enquiry and the Enquiry Officer submitted

an enquiry report to the Disciplinary Authority on 15th June 2016

whereupon, after examining the same, the Disciplinary Authority as per the

procedure laid, sent a copy of enquiry report vide letter dated 30th June

2016 to the petitioner calling upon him to submit his representation or file

any document in his defence within 15 days, which the petitioner yet again

failed, and, after examining in depth, the report of enquiry and on the basis

of finding of enquiry report in terms of the Act and the Rules, the petitioner

was ordered to be removed from services vide order dated 30 th July 2016

reiterating that the petitioner came to be proceeded against for overstaying

leave and unauthorized absence in accordance with law, and, at every step

the petitioner came to be asked to respond to the notices and participate in

the enquiry conducted against him in which he failed, and that,

consequently the order dated 30th July 2016 came to be issued against the petitioner after following the due process of law in accordance with the

procedure established by the Act and the Rules and that the petitioner has

made false and baseless submissions in the petition, and that, the petitioner

has no cause of action to maintain the petition.

Heard learned counsel for the parties and perused the record.

4. It is an admitted fact emerging from the record available on the file that the

petitioner came to be accorded casual leave by competent authority with

effect from 14th September 2015 to 3rd October 2015. A bare perusal of the

said order of grant of leave annexed with the objections as Annexure-A

tends to show that the petitioner had to resume back to his duties on 5th

October 2015 in that the 4th October 2015 was Sunday, and the petitioner

have had been permitted to avail the Sunday also leave as well.

5. Record also reveals that the petitioner admittedly did not resume his duties

after availing the said leave on 5th October 2015 and according to the

petitioner he could not resume the duty on account of the ailment of

depression the petitioner suffered w.e.f 17.09.2015 up to 12.07.2016 when

he came to be declared fit pursuant to a certificate placed on record as

Annexure-B with the petition purportedly having been issued by one

Quality Health Care Hospital Kupwara and signed by the Managing

Director of the said Hospital, certifying that the petitioner is suffering from

depressive illness and had been on regular follow up from 17th September

2015 till date and was declared fit to resume duty from 12 th July 2016.

Ironically, the petitioner on the one hand claims to have been suffering from

depressive illness w.e.f 17.09.2015 till 12.07.2016, yet in the petition has

shown his awareness about the issuance of warrant of his arrest issued by

the respondent 3 herein dated 20th November 2015 addressed to the SSP Kupwara, inasmuch as also being alive to the issuance of various

notices/letters issued during the intervening period admitted to have been

received by him calling upon him to resume his duties stated to have written

in hindi script by the respondents, and on that count not responded to and

not on account of his ailment

Under these circumstances, nothing could have prevented the

petitioner from responding to the letters/communications, if he claims to

have received the same though in hindi transcription.

6. Record also reveals that the petitioner since claims to have been declared fit

to resume duty on 12th July 2016 yet the petitioner has not placed on record

anything to suggest that the petitioner made any attempt or efforts to

resume his duties except having pleaded so in the petition without any

supporting material thereof, whereas on the contrary the respondents in the

reply filed to the petition have specifically and in explicit terms denied and

disputed the said assertion of the petitioner made in the petition that he

presented himself for resuming his duties in the month of 30th June 2016.

7. Further perusal of the record available on the file as also the enquiry record

produced by the counsel for the respondents manifestly demonstrate that the

respondents declared the petitioner as a deserter and sought consequently

his arrest after the petitioner failed to resume his duties, and, upon his

failure to resume his duties, the respondents proceeded to hold an enquiry in

terms of Rule 27-A of the Rules of 1955, which record of enquiry

conducted by the respondents against the petitioner under the said Rule 27-

A, tends to show that the respondents have followed the mandate of Rule

27-A, in letter and spirit though having held the said enquiry in ex-parte against the petitioner on account of his non-participation therein the said

enquiry.

8. Record available on the file as also the enquiry record made available by

the counsel for the respondents also reveals that the petitioner has not at any

point of time after claiming to have got recovered from the ailment i.e., 12th

July 2016 till the issuance of the impugned order dated 30th July 2016, filed

any application before the respondent bringing into notice the entire state of

affairs qua his ailment and recovery by producing any document thereof.

The petitioner seemingly has placed on record the aforesaid Medical

Certificate for the first time before this court in order to augment his

pleadings in the petition to demonstrate that the petitioner was ill and

recovered from the said illness only on 12th July 2016. Under these

circumstances, the petitioner cannot be said to have been fair in the matter

of overstaying his leave granted to him on 14th September 2015, but appears

to have overstayed the said leave without any lawful justification by relying

upon a medical certificate not admittedly issued and signed by a Competent

Doctor, but by some Managing Director of the Hospital in question.

9. A deeper and closer examination of the record available on the file in

general and the enquiry record produced by the counsel for the respondents

manifestly demonstrates that the respondents have meticulously followed

the mandate of the provisions of the Act 1949 and the Rules of 1959 in the

matter against the petitioner, and, consequently, validly and lawfully issued

the impugned order against the petitioner removing him from service. The

petitioner, as has been noticed in the preceding paras, while risking

repetition has himself kept away from his duties and has chosen not to

inform the respondents about his ailment or else the treatment being received by him while overstaying leave, and has even failed in this regard

ever since the petitioner claims to have recovered from the said ailment on

12th July 2016 till the issuance of impugned order.

10. It is significant to note here that the judgments referred and relied upon by

the counsel for the petitioner do not lend any support to the case of the

petitioner in view of the aforesaid analysis.

11. Viewed thus, what has been observed, considered and analyzed

hereinabove, the petition entails dismissal and is accordingly dismissed.

12. Record produced by the counsel for the respondents is returned back.

(JAVED IQBAL WANI) JUDGE SRINAGAR 22.10.2024 Hilal Ahmad

Whether the Order is reportable? Yes/No. Whether the Order is speaking? Yes/No.