IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.02.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.6881 of 2006 S.Gajarajan ... Petitioner Vs 1.The Deputy Inspector General of Police, CRPF, Hyderabad, Andhra Pradesh. 2.The Commandant, 12BN CRPF, Kathua Jammu and Kashmir. 3.The Additional DIGP Group Centre, CRPF, Avadi, Chennai. ... Respondents PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, to call for the records on the file of the first respondent proceedings No.R.XIII-16/2005-ESTT.3, dated 18.11.2005 and quash the same as illegal, incompetent and without jurisdiction and further direct the respondents to restore the petitioner into service together with all attendant benefits. For petitioner : Mr.Lakshmi Narayanan For Respondents : Mr.C.Gurulingam,SCGSC O R D E R The petitioner has come forward to challenge the order of the first respondent dated 18.11.2005 and after setting aside the same seeks for a consequential direction to restore him to service. 2. The petitioner was working as a Constable in the respondent CRPF. He was attached to 12th Battalion. He has come forward to challenge the order dated 18.11.2005 wherein and by which the petitioner's appeal against the order of removal was rejected. The charge against the petitioner was that he had unauthorisedly absented himself from 04.02.2003 till 24.01.2004. https://hcservices.ecourts.gov.in/hcservices/ 3. The writ petition was admitted on 10.03.2006. On notice from this Court, the respondents have filed a counter affidavit. It was stated that the petitioner applied for earned leave with effect from 07.12.2002 to 04.02.2003. He was granted 60 days of leave. The petitioner however, did not join duty and overstayed his leave with effect from 04.02.2003. Since the petitioner did not join and overstayed his leave, a warrant of arrest was issued on 16.04.2003 for his apprehension. He was neither apprehended by the Tamil Nadu State Police nor he reported for duty in his Unit. A court of enquiry was ordered against the petitioner by the 12th Battalion by proceedings dated 24.06.2003 and on recommendation of the court of enquiry, the petitioner was declared as a 'Deserter' from the Force with effect from 04.02.2003. As the petitioner had committed serious act of misconduct, a departmental enquiry was issued against the petitioner for unauthorisedly absented himself. The enquiry was initiated under Section 11(1) of the CRPF Act. The memorandum of charges and list of witnesses and documents were served on the petitioner on 24.09.2003. The Dy.Comdt of 12 BN was appointed as Enquiry Officer. The Enquiry Officer gave a report on 16.12.2003 and after considering the report, the second respondent removed the petitioner from service by an order dated 24.01.2004. The petitioner preferred an appeal and the same was also rejected by the appellate authority by an order dated 18.11.2005. 4. The contention of the petitioner was that his absence from 04.02.2003 till 24.01.2004 cannot be construed as unauthorised absence and it overlooks the proceedings before the criminal court in Sessions Case No.261 of 2004. The petitioner was acquitted on 27.05.2005. It was claimed by the petitioner that during the period of leave when he was in his native place, a police complaint was given against him by one Vijaya alleged that he had demanded dowry and a case was registered in Crime No.23 of 2003 on the file of the Inspector of Police, Pallikonda Police Station. The police never apprehended him. Due to the harassment by the police, it led to health problem and he was unable to report to duty. The petitioner had sent a telegram followed by letters. Notwithstanding this, he had been declared as a 'Deserter' and in the subsequent departmental enquiry, he was removed from service. 5. But the actual case against the petitioner was on the allegation of rape of one Kalaiselvi. the petitioner was charge sheeted under Sections 376, 417 of IPC and Section 4 of the Dowry Prohibition Act. The FIR was lodged on 28.01.2003 alleging that the petitioner had committed rape on minor Kalaisevli on 18.01.2003. The said Kalaiselvi was examined by the Medical Doctors on 30.01.2003. Despite the petitioner was to report for duty on 04.02.2003 and was given a reminder on 11.02.2003, the petitioner did not report for duty. The petitioner was evading warrant for his arrest and simultaneously requesting extension of https://hcservices.ecourts.gov.in/hcservices/ leave. A warrant of arrest against the petitioner was also issued on 16.04.2003. It is only on 20.05.2003, the petitioner was obtained an anticipatory bail from this Curt with a direction to report daily twice before the Judicial Magistrate V, Vellore. The final report in the criminal case was filed before Judicial Magistrate V, Vellore on 24.06.2003. After two years of the final report filed, the petitioner was acquitted. It was only thereafter, he preferred an appeal. 6. Mr.V.Lakshminarayanan, learned counsel for the petitioner stated that if a person is involved in false criminal case and had to avert an arrest and due to conditional bail had to report before the local magistrate cannot be said that he was unauthorisedly absent. For reasons beyond the circumstances, the petitioner had absented himself and that cannot be considered as a wilful absence. Therefore, the entire exercise done by the respondents cannot be countenanced by this Court. 7. In support of his contentions, the learned counsel placed reliance upon the judgment of the Supreme Court in Ibrahim and others v. State of West Bengal and another reported in (1968) 2 SCR 306. In that case, a direction under Section 191(1)of the Merchant Shipping At, 1958 was considered. The Supreme Court in Paragraph 6 held as follows:- "6. Section 191(1) is in two parts. The first part deals with only desertion and therefore, if desertion was proved, the penalty which the law provides under the Act was duly incurred. There is no excuse against desertion because reasonable cause which is indicated in the same section is included in clause (b) and not in clause (a). But even if one were to view their conduct as failing under (b) and not (a) as the courts have held, we see no excuse on their part. The operation of shipping requires constant attention from its crew and it is not possible for a shipping company or a vessel to ply the ship if the crew at every port make demands and leave the ship in a body. Such conduct would be subversive of all discipline on board. It is not so long ago that seamen were put in stocks and chains and the leaders were made to walk the plank or hung from the yard-arm or at the least were flogged. The law has made the life of seamen a little more liberal but has chosen to regard their duties as of paramount importance and has therefore, in addition to the ordinary liabilities which arise under the general law, added a penalty of imprisonment for absence from duty without reasonable cause and has also provided for forfeiture of wages and the effects left on board. This indicates that the policy of the law is that the crew must perform https://hcservices.ecourts.gov.in/hcservices/ their duties under such agreements as they execute with the shipping company on pain of being found guilty and punished if they cannot make out that they had sufficient and reasonable cause for what may otherwise be regarded as dereliction of duty. In our opinion in the present case there was not that sufficient cause even for purpose of clause (b) of Section 191(1). After all the dispute was before the Shipping Master, meetings had taken place and minutes had been recorded. The log book of the Shipping Company would show the different voyages and their duration and the muster roll would show the attendance of the crew. It was a matter of mere arithmetical calculation between Re. 1 per day and 62 paise per day to find out how much money was due to each of the ratings. This would not amount to more than Rs 30 or Rs 40 per person and this claim might well have waited till the completion of the voyage, because the record of the entire proceedings was kept in the Shipping Master’s office and there was machinery in law for the enforcement of a demand. In our opinion, the ratings were overweighed by their leaders and were induced to leave the ship in a body in a manner which can only be described as desertion and therefore their offence was fully established. We see no reason therefore to interfere in this appeal which fails and will be dismissed." 8. The learned counsel also relied upon the judgment of the Supreme Court in G.T.Lad and others v. Chemical and Fibres of India Ltd. Reported in (1979) 1 SCC 590. The passage found in Paragraph 5(a) may be usefully extracted below:- "...It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Temporary absence is not ordinarily sufficient to constitute an “abandonment of office." 9. In the very same judgment, in paragraph 7, the Court recorded the finding which is as follows:- "...In the present case also the appellants’ absence from duty was because of their peaceful strike to enforce their demand. Accordingly, we are of the view that there was no abandonment of service on the part of the appellants." https://hcservices.ecourts.gov.in/hcservices/ 10. The learned counsel also placed reliance upon the judgment of the Supreme Court in Capt. Virendra Kumar through his wife v. Chief of the Army Staff, New Delhi reported in (1986) 2 SCC 217. In that case, the provisions of the Army Act in relation to the desertion was considered. After examining the relevant provision, in paragraph 13, the notes appended to Section 38 of the Army Act in the Manual of the Armed Forces was referred to and the 4th note reads as follows:- "4. Intention to desert may be inferred from a long absence, wearing of disguise, distance from the duty station and the manner of termination of absence e.g., apprehension but such facts though relevant are only prima facie, and not conclusive, evidence of such intention. Similarly the fact that an accused has been declared an absentee under AA Section 106 is not by itself a deciding factor if other evidence suggests the contrary." 11. After extracting those notes, in paragraphs 14 and 15 it was observed as follows:- "14. As we mentioned earlier, the Army Act makes a pointed distinction between “desertion” and “absence without leave” simpliciter. “Absence without leave” may be desertion if accompanied by the necessary “animus deserendi” or deemed to be desertion if the Court of Inquiry makes the declaration of absence prescribed by Section 106 after following the procedure laid down and the person declared absent had neither surrendered nor been arrested. 15. In the present case the Military authorities appear to have treated the officer as a deserter and did not deem him to be a deserter. The apprehension roll as well as the tentative charge-sheet issued to him treat him as a deserter. According to the authorities the officer, when he failed to report as directed, had no intention of rejoining duty, in other words he had the necessary “animus deserendi”. This is what is said in the counter-affidavit: “When he failed to report at his new unit also, the Army authorities were left with no choice but to issue an apprehension roll for his arrest since by now it was clear to the Army authorities that Captain Virendra Kumar was not only absent without leave but had no intention to join duty for which he was ordered and thus it was a clear case of desertion.” If the authorities thought that the officer who was absent without leave had even then no intention of coming back to duty, then there was no question of observing the procedural requirements of Section 106 and then deeming him to be a deserter." https://hcservices.ecourts.gov.in/hcservices/ 12. The learned counsel further placed reliance upon the judgment of the Supreme Court in Shri Bhagwan Lal Arya v. The Commissioner of Police, Delhi and others reported in (2004) 4 SCC 560, in which it was held that absence for more than two months on medical ground without sanction of leave cannot be regarded as a grave misconduct or continued misconduct rendering him completely unfit for police service. 13. The learned counsel placed reliance upon a judgment of the Supreme Court in Chairman-cum-Managing Director, Coal India Ltd. And Anr. v. Mukul Kumar Choudhuri and Ors reported in 2009 AIR SCW 5596, wherein it was held that upon being charged of misconduct for unauthorised absence from duty for six months, the Government Servant admitted his guilt, explained the reasons for absence and that he was neither desired to disobey the order of appellate authority or disobey company's rules, the reasons for absence was purely personal and beyond his control, the Supreme Court gave relief by denying the backwages for the entire period but reinstated him. But that was a case relating to government owned company. 14. The learned counsel also placed reliance upon the judgment of the Supreme Court in Union of India (UOI) and Ors. V. Ghulam Mohd.Bhat reported in AIR 2005 SC 4289 =1994 (5) SCC 450, wherein it is held as follows:- "A bare perusal of Section 11 shows that it deals with minor punishment as compared to the major punishments prescribed in the preceding section. It lays down that the Commandant or any other authority or officer, as may be prescribed, may, subject to any rules made under the Act, award any one or more of the punishments to any member of the Force who is found guilty of disobedience, neglect of duty or remissness in the discharge of his duty or of other misconduct in his capacity as a member of the Force. According to the High Court the only punishments which can be awarded under this section are reduction in rank, fine, confinement to quarters and removal from any office of distinction or special emolument in the Force. In our opinion, the interpretation is not correct, because the section says that these punishments may be awarded in lieu of, or in addition to, suspension or dismissal." The above passage only shows that a person cannot be ipso facto be found guilty only on the ground that he was declared as a deserter but there must be some more materials in a properly conducted enquiry in terms of principles of natural justice. 15. The learned counsel also placed reliance upon the https://hcservices.ecourts.gov.in/hcservices/ judgment of the Supreme Court in Union of India & others v. Giriraj Sharma reported in AIR 1994 SC 215, wherein Section 11(1) came to be considered. Therefore, notwithstanding the declaration of desertion after finding that there was overstayal of leave for 12 days, the Court granted relief to CRPF Javan and directed the authorities to impose minor penalty. In the light of the above precedents, the petitioner seeks to set aside the order. 16. However, this Court is not inclined to agree with the stand taken by the petitioner. The decision relied on by the learned counsel for the petitioner do not help the case of the petitioner. In the present case, apart from declaring him as deserter a departmental enquiry was also held. In the present case, the petitioner though was involved in a serious crime, he never informed the authorities about the real state of affairs and rest contended by sending a letter and a telegram. It is not as if on the only ground of desertion, the petitioner was removed from service. Because of his unauthorised absence which was not on account of any domestic problem, but having caught in a serious crime of alleged rape, the petitioner was removed. It may be true that the petitioner was granted anticipatory bail and had to report to the police station periodically, which might have made him to desert from reporting to duty. But that situation came on later. At no point of time, the petitioner kept the respondents informed about the real situation. It was only after getting anticipatory bail, the question of reporting before the Court arose. Before that bail order, he was evading from getting arrested and remain in cognito. Therefore, intentionally, the petitioner kept away from reporting to the authorities. That itself can prove that the petitioner was guilty of the charges for which he was imposed with the penalty of removal. Further the petitioner's contention that there was a distinction between deserter and unauthorised absence is well understood. In the present case, his removal was on the ground of unauthorised absence which absence is not denied by the petitioner. 17. In the above circumstances, this Court is unable to countenance the prayer made by the petitioner. Hence, this writ petition stands dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar svki https://hcservices.ecourts.gov.in/hcservices/ To 1.The Deputy Inspector General of Police, CRPF, Hyderabad, Andhra Pradesh. 2.The Commandant, 12BN CRPF, Kathua Jammu and Kashmir. 3.The Additional DIGP Group Centre, CRPF, Avadi, Chennai. +1cc to Mr.V.Raghavachari, Advocate Sr 7211 +1cc to Mr.C.Gurulingam, Senior Central Govt.Standing Counsel Sr 7263 BUR(CO) km/12.2. W.P.No.6881 of 2006 https://hcservices.ecourts.gov.in/hcservices/