WA 363/2010 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE PK MUSAHARY Judgment and Order (Oral) Amitava Roy, J The subject matter of challenge in the instant appeal is the judgment and order dated 11.06.2010, passed in WP(C) No. 5942/2006, sustaining the assailment of th e orders dated 29.09.1998 and 21.03.2006 passed by the Commandant, 96 Bn. CRPF, Aurangabad, Bihar and DIGP, CRPF, respectively. Whereas, by the first order pena lty of dismissal from service had been awarded to the respondent as a disciplina ry measure, the second recorded the rejection of his statutory appeal against th e same. The learned Single Judge by way of consequential relief directed his rei nstatement in service with all consequential benefits under the law. 02. We have heard Mr. N Zaman, learned Central Government Counsel fo r the appellants and Mr. SK Barkatakey and Ms. S Sarma, Advocates for the respon dent. 03. A brief outline of the contextual facts needs narration. The res pondent had joined as a Constable (General Duty) in the Central Reserve Police F orce (for short hereafter referred to as the CRPF/Force) on 01.12.1990. After th e initial period of training, he was detailed to serve under the 96 Battalion CR PF at Ajmer, Rajasthan. He got married in the year 1997 to a lady in the State o f Assam, whereafter, he left her at his paternal home hereat and resumed his dut ies under the aforementioned Battalion at Ajmer. While posted there, he having r eceived the information that his wife was in her family way and that in connecti on therewith, there were some severe complications, he applied for casual leave for 15 days in the month of February, 1998, which was refused. As advised by the Commandant of the Battalion, he reiterated his request after a fortnight, which stood declined as well. Thereafter, the respondent had to move to the State of Bihar along with the Batallion, and on the way he having received the informatio n that his wife was critically ill and sinking he in a hurry rushed back home by leaving an application for casual leave. According to the respondent, after a ttending on his wife, he fell ill for which he was rendered unable to report bac k to his Unit immediately. However, when he ultimately returned for duty, he was kept in a camp and thereafter produced before the Commandant of the Batallion. On being queried for his absence, he, though, having explained reasons therefor and also had tendered apology, following an enquiry by the Chief Judicial Magist rate-cum-Commandant, 96 Battalion, CRPF, he was convicted under Section 10 (p) r ead with Section 9 (f) of the Central Reserve Police Force Act, 1949 (for short hereafter referred to as the Act), having held to be guilty of deserting the For ce and absenting from service without permission for a period of 96 days. By the order dated 05.11.1998 he was dismissed from service. His statutory appeal also failed, the same having been rejected by the Appellate Authority on 21.03.2006. Being aggrieved, he approached this Court for redress. 04. The appellants in their affidavit-in-opposition asserted that th e respondent had deserted the Force en-route while it was on transit from Jahana bad, Bihar on 12.06.1998. According to them, no information regarding the illnes s of his wife had ever been conveyed to the Commandant of the Battalion and no a pplication for grant of casual leave also had been submitted. They asserted that as he was absent from duty on 12.07.1998, he was issued registered letters and telegrams for his return, but to no avail, for which, eventually, on a complaint lodged by the Officer Commanding D/96 Battalion, CRPF in the court of the Chief Judicial Magistrate-cum-96 Battalion, a warrant of arrest was issued on 20.07.1 998 to secure his presence. The warrant, however, could not be executed, but on the return of the respondent to the Unit on 25.09.1998, he was tried by the Cour t of the Chief Judicial Magistrate-cum-Commandant, 96 Battalion, CRPF and was co nvicted under Section 10 (p) read with Section 9 (f) and sentenced to undergo im prisonment till rising of the Court on 29.09.1998, whereafter, in exercise of po wer 12 (1) he was dismissed from service w.e.f. 29.09.1998. The appellants have stated that as the respondent had been tried in a judicial proceeding, no furthe r enquiry into the episode was made. The learned Single Judge, as referred to hereinabove, on a scrutiny of the plead ings of the parties and the arguments based thereon, interfered with the orders impugned and directed the reinstatement of the respondent herein in service with all consequential benefits. It was concluded on an assessment of the attending facts and circumstances that the respondent could not have been said to have des erted the Unit and that his conduct, at best, amounted to an offence contemplate d under section 10 (m) of the Act. It was further held that the confinement of t he respondent till the rising of the Court did not amount to imprisonment under Section 12 of the Act and that therefore, the order of dismissal was also unwarr anted and impermissible. 05. Mr. Zaman, has persuasively argued that as the respondent had re mained absent from duties without seeking leave as required under the law and th at too for a period of 76 days at a stretch, considering the fact that at all re levant time he was a member of a disciplined force, he was guilty of the offence of deserting the Unit as envisaged in Section 9 (f) of the Act, and thus was ri ghtly dismissed from service. The learned Central Government Counsel argued that as no point of time, the respondent had either prayed for leave or had communic ated with the Unit during his absence explaining the reason therefor, the discip linary measure of dismissal was appropriate, having regard to the norms of disci pline in the Force and, therefore, the learned Single Judge had erred in interfe ring with the impugned order. The learned counsel for the respondent/writ petitioner has submitted with refere nce to Sections 9, 10 & 11 of the Act, in particular that in the present factual premise the respondent could by no means be reproached as a deserter as conceiv ed of in Section 9 (f) and, therefore, the imposition of the penalties of impris onment on him and eventual dismissal from service are apparently unsustainable i n law and on facts and had, therefore, been rightly annulled by the impugned jud gment and order. Contending that having regard to the emergent circumstances und er which the respondent had to rush back to be by the side of his ailing wife fo llowing by his illness, he could not as well be condemned for absenting from ser vice without leave and, thus, no interference with the impugned judgment and ord er is warranted. The learned counsel for the respondent, however, has argued as well that in the face of Rule 31 of the Central Reserve Police Force Rules, 1955 (for short hereafter referred to as the Rules), as admittedly, no enquiry, as c ontemplated therein had been held, the inference that the respondent had been, d uring the relevant time, absent without leave or sufficient cause is not availab le to the petitioners and, thus, no imposition of penalty is allowable under the law. The learned counsel for the respondent argued as well that as in the facts of the present case, he had not been imprisoned within the meaning of Section 1 2 (1) of the Act, the order of dismissal had been rightly interfered with. 06. The pleadings available and the arguments had been duly noted. T hat the respondent, while on active duty had to leave the Unit on 12.07.1998, wh ereafter, he returned for duty on 25.09.1998 i.e. after 76 days is a matter of r ecord. Whereas, according to him, he left the Unit as above, after submitting an application for leave not waiting, however, for the same to be granted being dr iven by emergent circumstances the petitioner’s version is that neither such a s tep had been taken by him nor thereafter did he keep any contact with the Unit o r any other superior officer. On being queried by us, the learned counsel for th e respondent, however, candidly admitted that during 12.07.1998 and 25.09.1998, he did not either communicate with his Unit or the Commandant of the Battalion o r submit any application explaining the reason therefor. We are, therefore, cons trained to hold that this conduct of his howsoever he might have been inextricab ly engaged, does not merit condonation as he at all relevant times was a member of a disciplined force and was, thus, supposed to be exemplarily conscious of hi s responsibilities vis-a-vis his service. 07. Be that as it may, having regard to the pleaded facts and the do cuments available with us, we find no cogent and convincing reason to differ fro m the conclusion of the learned Single Judge that in the attendant facts and cir cumstances, he could not be held to be guilty of deserting his Unit. The very fa ct that he had returned for duty, even though, after a time lag of 76 days, in o ur estimate demonstrates the absence of his intention to desert the service. The animus desidendi, which is the quintessence of desertion, is visibly absent in the present case. 08. On a perusal of the decision rendered by the Allahabad High Cour t in MOHD ZAKIR VS. UNION OF INDIA & ORS., 1996 (5) SLR 788, we are inclined as well to sustain the finding of the learned Single Judge that following the convi ction of the respondent in the trial before the Chief Judicial Magistrate-cum-Co mmandant 96 Battalion, CRPF, he had not been imprisoned so as to permit his dism issal from service in exercise of powers under section 12 (1) of the Act. 09. The above notwithstanding, we are unable to persuade ourselves t o sustain the operative direction contained in the impugned judgment and order. In the face of our determination that the respondent had failed to display a con duct expected of a member of a disciplined force during his absence from 12.07.1 998 to 25.09.1998, we are not inclined to give a clean cheat to him in all respe cts. In this view of the matter and on an evaluation of the entire fact situatio n, we are of the unhesitant opinion that his lapse comes within the purview of S ection 10 (n) of the Act for which as well, a penalty has been provided. We have noticed as well the power provided to the Commandant under section 11 of the Ac t to award minor punishment on the eventualities as referred to therein. 10. On a cumulative consideration of all above, we consider it appro priate to remit the matter to the Commandant, 96 Battalion, CRPF to take an appr opriate decision vis-a-vis the respondent on the aspect of penalty/punishment co ntemplated by the Act. In doing so, we make it clear that the said authority wou ld proceed on the basis that as held by us the respondent is guilty of a conduct as envisaged under Section 10 (n) of the Act. The interference with the penalty of dismissal is sustained. The operative direction for reinstatement and conseq uential reliefs is, however, interfered with. Appropriate orders in this regard would be passed by the Commandant, 96 Battalion along with the decision to be ta ken qua his penalty for the lapse under Section 10 (n) of the Act. The impugned judgment and order is modified to the extent indicated hereinabove. The appeal i s partly allowed. No costs.