IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 25TH JANUARY 2008 / 5TH MAGHA 1929 WP(C).No. 8196 of 2006(A) ------------------------------------------ PETITIONER: -------------------- K.S.MURALEEDHARAN NAIR, KURUMPELIL HOUSE, BHOOTHAMKARA, ELAMANNOOR.P.O, ADOOR, PATHANAMTHITTA, (FORMERLY CONSTABLE, 17TH BETTALION, INDO TIBATON BOARDER, MASOORI). BY ADV. SRI.PHILIP M.VARUGHESE RESPONDENTS: ------------------------ 1. UNION OF INDIA, REP. BY THE SECRETARY, DEPARTMENT OF HOUSE AFFIARS, NEW DELHI. 2. THE DIRECTOR GENERAL OF INDO TIBETAN BORDER, POLICE BLOCK II, CCO COMPLEX, LODI ROAD, NEW DELHI-110 003. 3. THE COMMANDANT, 24 BATTALION, INDO TIBETAN BORDER POLICE, METHRI.P.O, PITHORAGHDU, UTTARANCHAL. BY ADV. SRI.A.SUDHI VASUDEVAN, ADDL.CGSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8196 of 2006(A) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE DISCHARGE CERTIFICATE DATED 7.7.03 IS ISSUED TO THE PETITIONER FROM THE ITB POLICE HOSPITAL. EXT.P2: COPY OF THE ANALYSIS REPORT DATED 12.8.03 ISSUED FROM SREE CHITRA COMPUTERIZED LABORATORY AND ECG. EXT.P3: COPY OF THE RAILWAY TICKET. EXT.P4: COPY OF THE JUDGMENT IN O.P.NO. 16464/04 DATED 2.6.04. EXT.P5: COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT, DATED 24.11.2004. EXT.P6: COPY OF THE ORDER REMOVING THE PETITIONER FROM SERVICE SERVED ALONG WITH EXT.P5 DATED 5.11.2003. EXT.P7: COPY OF THE JUDGMENT IN OP.NO.1975/05 DATED 19.1.2005. EXT.P8: COPY OF THE COMMUNICATION DATED 20.05.2005. RESPONDENT'S EXSHIBITS: EXT.R3(a): COPY OF THE SERVICE AND CASUALITY SHEET OF THE PETITIONER DTD. 1.12.95. EXT.R3(b): COPY OF THE F.I.R. LODGED ON 5.8.2003 AGAINST THE PETITIONER. EXT.R3(b)(1):COPY OF THE ENGLISH TRANSLATION OF EXT.R3(b). EXT.R3(c): COPY OF THE LETTER DATED 7.8.03 SENT FROM THE OFFICE OF THE 3RD RESPONDENT TO THE PETITIONER WITH COPY TO PETITIONER'S FATHER. EXT.R3(c)(1):COPY OF THE ENGLISH TRANSLATION OF EXT.R3(c). EXT.R3(d): COPY OF THE LETTER DATED 6.9.2003 ISSUED TO THE SUPERINTENDENT OF POLICE. EXT.R3(e): COPY OF THE ORDER NO.5155 DATED 8.9.2003. EXT.R3(e)(1):COPY OF THE ENGLISH TRANSLATION OF EXT. R3(e). EXT.R3(f): COPY OF THE ORDER DATED 28.9.2003 DECLARING THE ` PETITIONER. EXT.R3(f)(1):COPY OF THE ENGLISH TRANSLATION OF EXT.R3(f). EXT.R3(g): COPY OF THE NOTICE PUBLISHED IN NEW INDIAN EXPRESS DAILY, DTD 22.10.2003. EXT.R3(h): COPY OF THE NOTICE PUBLISHED IN MATHRUBHUMI DAILY DATED 22.10.2003. EXT.R3(i): COPY OF THE LETTER OF RESIGNATION DATED 1.7.03 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.R3(i)(1):COPY OF ITS ENGLISH TRANSLATION OF EXT.R3(i). EXT.R3(j): COPY OF THE LETTER DATED 26.7.03 SENT BY 3RD RESPONDENT TO THE PETITIONER. EXT.R3(j)(1):COPY OF THE ENGLISH TRANSLATION OF EXT.R3(j). ..... // TRUE COPY // P.A TO JUDGE. V.GIRI,J. ------------------------- W.P ( C) No. 8196 of 2006 -------------------------- Dated this the 25th January, 2008 J U D G M E N T The petitioner was serving as a Constable in the 24th Battalion, Indo Tibetan Border Police. While so, on 23.6.2003, he was awarded 15 days imprisonment in Force custody by the Commandant, allegedly for unauthorized absence for a period of 49 days. It seems that while he was in custody in Unit Quarter Guard, he fell ill and was admitted in the Unit Hospital due to Viral Heptatitis -'A' and remained under treatment up to 7.7.2003. He was discharged from the hospital after being declared fit. There is a dispute as to whether the petitioner was discharged from the hospital on his regaining health or whether his illness continued. It may not be very material in the light of the fact that admittedly the petitioner had absented himself from the Unit Campus without sanction of leave or prior permission of the competent authority with effect from 4.8.2003. On finding that the petitioner deserted camp, an F.I.R was lodged in the police station at Didihat Dist. Pithoragarh. A registered W.P ( C) No. 8196 of 2006 2 communication dated 7.8.2003 Exhibit R3 (c)was sent to the petitioner requiring him to report for duty and a copy of the same was addressed to the petitioner’s father Sri. Shivraman Nair. Petitioner did not respond to the same. Again, a letter was sent by the Commandant to the Superintendent of Police in Pathanamthitta District requesting the petitioner to be apprehended as is evident from Exhibit R3 (d). Petitioner was neither apprehended nor did the petitioner appear as such. It seems that a Court of Enquiry was constituted under Section 74 (2) of the Indo Tibetan Border Police Force Act, 1992. After, enquiry petitioner was declared as deserter. The order in this regard is Exhibit R3 (f). The petitioner has produced the same as Exhibit P6. In terms of the provisions of the Act, petitioner was given an opportunity to submit a representation requiring him to show cause whether he is interested in serving in ITBP and also warned him that he will be dismissed from service unless he shows cause. Notice was published in the following newspapers on 22.10.2003, The Indian Express, Malayala Manorama, Rashtra Deepika, Mathrubhoomi and Deshabhimani dailies. Copies of the publications are produced as Exhibit R3 W.P ( C) No. 8196 of 2006 3 (g) and Exhibit R3 (h). There was no response from the petitioner. Ultimately by Exhibit P6 order of the 3rd respondent petitioner was dismissed from service. According to the respondents, it was sent to him under registered post. Petitioner did not file an appeal within time. Thereafter, the petitioner approached this Court contending that after a period of absence he presented himself for duty but he was not permitted to join duty and then he had approached this Court in W.P.(C) No.16464 of 2004. Though such representation was not apparently received by the respondents ,they considered his request but rejected the same under Exhibit P5. The petitioner purported to file an appeal against Exhibit P5. Then he again approached this Court in W.P. 1975 of 2005 for a direction to the appellate authority to dispose of the appeal. Pursuant to the direction in Exhibit P7 judgment, representation was considered and rejected under Exhibit P8. Exhibits P5, P6 and P8 are under challenge in this writ petition. 2. A detailed counter affidavit has been filed by the respondents. It is, inter alia, stated that the enquiry in terms of the provisions of the Act was held before declaring the petitioner W.P ( C) No. 8196 of 2006 4 as deserter. He did not prefer a statutory appeal. The representation which he allegedly submitted to rejoin duty referred to in Exhibit P4 judgment was not actually received by the respondents. There was unauthorized absence on the part of the petitioner. He did not respond to repeated communications sent to him under registered post. He did not respond to the notice issued in various newspapers published in the petitioner’s home district. In the circumstances, there are no grounds to interfere with the orders in question, it is contended by the respondents. 3. I heard the counsel for the petitioner. The only contention which seems to be putforth with a reasonable degree of seriousness is that the petitioner did not have notice of the proceedings leading to Exhibit P6 and therefore he may be given a fresh opportunity in that regard. I am not inclined to accept the submission for several reasons. The respondents have produced materials along with their counter affidavit clearly indicating that notices were issued to the petitioner in his house address under registered post. Notice was issued to the petitioner’s father also. Copies of the paper publications have W.P ( C) No. 8196 of 2006 5 also been produced. There was a genuine attempt on the part of the respondents to not only afford reasonable opportunity to petitioner to participate in the enquiry but also to intimate the proceedings which took place later. There was no response from the petitioner. The contention of the petitioner that the name of the house of the petitioner was not shown in the communications issued to the petitioner and therefore, they could not have been served does not merit acceptance in view of Exhibit R3 (a) to (h). Moreover, the repeated assertion in the counter affidavit filed by the respondents along with the copies of the communication stated to have been addressed to the petitioner has not been controverted by the petitioner by any reply affidavit. Petitioner has not placed on record either a copy of representation seeking permission to rejoin duty directed to be considered under Exhibit P4 judgment nor the representation which led to Exhibit P8. This is in spite of the fact that the respondents had consistently taken the stand that they did not receive any representation as alleged by the petitioner seeking permission to rejoin duty, though it is referred to in Exhibit P4 judgment. W.P ( C) No. 8196 of 2006 6 For all these reasons, I do not find any grounds to interfere with Exhibits P5, P6 and P8 orders. In my view, respondents took genuine efforts to comply with the principles of natural justice in the matter of conduct of enquiry against the petitioner, prior to proclaiming him to be a deserter. The writ petition fails and the same is therefore, dismissed. (V.GIRI, JUDGE) ma W.P ( C) No. 8196 of 2006 7 K.THANKAPPAN,J CRL.A. NO.92 OF 1999 ORDER 25th May, 2007