1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07.04.2011 CORAM: THE HONOURABLE MS.JUSTICE K.SUGUNA AND THE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMY W.A.(MD).No.218 of 2011 and M.P.No.1 of 2011 V.Rajendran : Appellant Vs. 1.The Director General, Central Reserve Police Force, C.G.O.Complex, Lodhi Road, New Delhi. 2.The Deputy Inspector General of Police, Central Reserve Police Force, Avadi, Chennai 600 065. 3.The Commandant, 42 Bn, CRPF, Old.K.V.Building, Barkas, Hyderabad 05. 4.The Adjutant, 42 Bn, CRPF, Old.K.V.Building, Barkas, Hyderabad 05. : Respondents PRAYER: Writ Appeal is filed under Clause 15 of the Letters Patent against the Order dated 18.11.2010 made in W.P.(MD).No.3440 of 2010 on the file of this Court. WP.No.3440 of 2010 : Petition under Article 226 of the Constitution of India, to issue a writ of certiorarified mandamus, calling for the records relating to the order passed by the 4th respondent in his order No.P.VIII- 1/10-EC II/42 dated 16.02.2010 and quash the same in so far as the portion relating to the rejection of leave application and initiating disciplinary action is concerned and to direct the respondents to pass order on the application submitted by the petition on 28.05.2009. For Appellant : Mr.A.S.Mujubur Rahman For Respondents : Mr.C.Ramachandran Central Government Standing Counsel JUDGMENT [Judgment of the Court was delivered BY K.SUGUNA, J] This Writ Appeal is filed challenging the order dated 18.11.2010 made in W.P.(MD).No.3440 of 2010. https://hcservices.ecourts.gov.in/hcservices/ 2 2. The said Writ Petition was filed challenging the order dated 16.02.2010 insofar as it relates to rejecting the leave application and also indicating the initiation of disciplinary action as against the appellant. Besides, the other prayer made in the Writ Petition is to direct the respondents to pass orders on the application submitted by the appellant dated 28.05.2009 for voluntary retirement. 3. According to the learned counsel for the appellant, the facts leading to this case are as follows:- (i). The appellant had joined in the second respondent establishment on 31.10.1987. Subsequently, he was transferred to the unit of 42 Battalion CRPF Campus, Secunderabad on 11.10.2009. While he was working so, he had received a telephone call on 11.12.2009 alleging his involvement in a Criminal Case. He had applied for leave. But, leave was not sanctioned. On 14.12.2009, after sending a letter to the third respondent, he had left the Battalion. Subsequent to this, he was mentally depressed and he could not report for duty and he was also taking treatment, consequently he was not able to rejoin duty. (ii). By letter dated 16.12.2009, intimation was given by the third respondent to the wife of the appellant informing that the appellant was absconding from 15.12.2009 and First Information Report was also lodged as against him and further directing his wife to advise her husband to report for duty, failing which, disciplinary action will be initiated as against the appellant. (iii). Thereafter, on 29.01.2010, in this regard, the wife of the appellant had also received another letter from the third respondent. Again, a similar communication was sent to the wife of the appellant. However, he had not rejoined duty, consequently, the order impugned in the Writ Petition was passed. Challenging the said order, the appellant had filed the said Writ Petition. The learned Single Judge of this Court, by order dated 18.11.2010, had dismissed the said Writ Petition. Challenging the said order dated 18.11.2010, the present Writ Appeal is filed. 4. The stand of the learned counsel for the appellant is that initially, the appellant had submitted application seeking voluntary retirement and no order was passed on the application submitted by him. Since the appellant was suffering from mental depression, he was not in a position to rejoin duty. According to him, he had availed leave only after submitting leave application. 5. On the other hand, it is the stand of the learned Central Government Standing Counsel appearing for the respondents that the appellant had joined the present unit only on 11.10.2009 and he had deserted the unit with effect from 15.12.2009, consequently, according to the learned Central Government Standing Counsel, question of submitting application seeking voluntary retirement prior to joining the present unit does not arise at all and the application said to have been submitted by the appellant by Registered Post was not received by the concerned unit. On 16.12.2009 a charge memo was sent to the wife of the appellant with regard to his desertion. It is the specific stand of the learned Central Government Standing Counsel that in spite of communication sent through his wife directing him to report for duty, the same was not responded to, https://hcservices.ecourts.gov.in/hcservices/ 3 consequently, in accordance with the Rules and Regulations applicable to the respondents – CRPF, the order dated 16.02.2010 was passed by the third respondent. Apart from this, according to the learned Central Government Standing Counsel, as per the averment in the counter affidavit, already, by order dated 07.03.2010, the appellant was declared as "deserter" with effect from 15.12.2009. In spite of repeated reminders, the appellant had not reported for duty. Basing on this, according to the learned Central Government Standing Counsel, a warrant of arrest is also pending execution, and therefore, the appellant is not entitled for the relief sought for. 6. We have considered the above submissions made by the respective learned counsel. 7. It is the stand of the learned counsel for the appellant that the appellant had sent leave application before leaving the battalion on 14.12.2009. However, it is not the case of the appellant that without even sanction of leave, the appellant can be permitted to leave the battalion. Mere submission of leave application is not sufficient to avail leave. Such leave has to be sanctioned by the authority concerned. The learned counsel for the appellant has not brought to the notice of this Court any Rule, whereby on submitting leave application alone, one is entitled to get leave nor deeming provision, wherein, it is stated that on submission of leave application itself, leave is deemed to have been granted. Apart from this, the appellant was serving in an army force, where Rules and Regulations are expected to be followed strictly. 8. As far as the stand of the learned counsel for the appellant that since the appellant was mentally depressed, he was not in a position to go and report for duty is concerned, as rightly pointed out by the learned Central Government Standing Counsel, even as per the Medical Certificate produced by the appellant, which has been enclosed in the typed set of papers, there is no mention about the disease, i.e., mental depression, with which the appellant was suffering. As per the said Medical Certificate produced by the appellant also, the appellant is eligible for leave only from 23.01.2010 to 27.01.2010, i.e., for a period of four days. Apart from this, it is not disputed by the learned counsel for the appellant that subsequent to this, intimation was given by the official respondents directing the appellant to report for duty. Consequently, the stand of the learned counsel for the appellant that either leave has to be sanctioned or the respondents have to refer the appellant to the Medical Board so as to send him out of service on the ground of medical invalidation will not hold good. Apart from this, the said Writ Petition was filed by the appellant himself. If the appellant is so ill, we are not able to understand as to how he is the deponent of the affidavit filed in support of the Writ Petition. 9. As far as the request of the appellant to permit him to go on voluntary retirement is concerned, as per the stand of the learned Central Government Standing Counsel, if the appellant intends to go on voluntary retirement, an application should have been made, but the application, said to have been sent by the appellant, seeking voluntary retirement, was not received by the third respondent and a copy of the application is also not enclosed in the typed set of papers. However, the appellant had filed only the understanding certificate given by him, which reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ 4 "I No.871162179 CT/GC V.Rajendran of Hqr Coy, GC CRPF, Avadi, has been explained in details about the likely hardship. I may face in this uncertain and economic age, after my proposed Voluntary retirement from service due to domestic problems/unavoidable circumstances." 10. Even assuming that the appellant had sent application seeking voluntary retirement, an acknowledgment should have been sent by the third respondent. However, there is no acknowledgment available in the typed set of papers filed by the appellant. 11. For the foregoing reasons, the Writ Appeal fails and the same is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (P & A) /True copy/ Sub Assistant Registrar(C.S) To 1.The Director General, Central Reserve Police Force, C.G.O.Complex, Lodhi Road, New Delhi. 2.The Deputy Inspector General of Police, Central Reserve Police Force, Avadi, Chennai 600 065. 3.The Commandant, 42 Bn, CRPF, Old.K.V.Building, Barkas, Hyderabad 05. 4.The Adjutant, 42 Bn, CRPF, Old.K.V.Building, Barkas, Hyderabad 05. +1. CC to M/s A.S.Mujibur Rahman, Advocate, Sr.No.12983 +1. CC to M/s C.Ramachandran, Advocate, Sr.NO.13009 NB JUDGMENT MADE IN W.A.(MD).No.218 of 2011 07.04.2011 TR : 03.05.2011 : 4p/7c https://hcservices.ecourts.gov.in/hcservices/