IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.04.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.27695 of 2007 and 819 of 2008 and M.P.NOS.1 OF 2007 AND 1 OF 2008 J.Arul Dass .. Petitioner in both the petitions Vs. 1.Director General of Police, Central Reserve Police Force, C.G.O. Complex, Lodhi Road, New Delhi. 2.Deputy Inspector General of Police, Group Centre, CRPF, Avadi, Chennai-65. 3.Additional Deputy Inspector General of Police, Group Centre, CRPF, Avadi, Chennai-65. 4.The Commandant, 18th Battalion, CRPF, C/o.56 APO Sri Nagar. .. Respondents 1 to 4 in both the petitions Mr.Harindarkumar Deputy Commandant/Enquiry Officer, 18th Battalion, CRPF, C/o.56, APO, Sri Nagar. .. Respondent No.5 in W.P.No.819 of 2008 W.P.No.27695 of 2007 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the order passed by the fourth respondent in his officer order No.W.II.3/2007-EC.2 dated 26.07.2007 and to quash the same. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.819 of 2008 is preferred under Article 226 of the Constitution of India for the issue of a writ of certiorarified mandamus to call for the records relating to the order passed by the second respondent dt.27.05.2008 in his order No.R.XIII.10/2007- EC-III modifying the order passed by the fourth respondent dated 7.12.2007 in his office order No.P.VIII.5/2007-EC.2 received by the petitioner on 14.12.2007 and the Vacation Notice No.B.V-1/2007-08- GCA/BLDG dated 15.12.2007 issued by the third respondent herein and to quash the same and to direct the fourth respondent to take the petitioner in the strength of the CRPF as Head Constable GD with all monetary benefits. For Petitioner in both the Petitions : Mr.Md.Ibrahim Ali For Respondents in both the Petitions : Mr.Chakravarthi COMMON ORDER The petitioner is one and the same person in both the writ petitions. In the first writ petition, he has challenged the order of the fourth respondent, dated 26.7.2007. By the said order, after conclusion of the Court of enquiry, it was held that the petitioner was declared as deserter from the Central Reserve Police Force (for short CRPF) with effect from 4.4.2007. When the matter came up on 22.8.2007, notice was directed to be issued to the Standing Counsel for Central Government with a condition that the petitioner shall not be arrested by the respondent. Subsequently, the writ petition was admitted on 11.12.2007 and the interim stay granted was also made to continue until further order. On notice from this court, the respondents have filed a counter affidavit, dated 26.2.2008. 2.Even while the writ petition is pending, the petitioner has filed the second writ petition in W.P.No.819 of 2008. In the second writ petition, the petitioner's challenge is to the order, dated 7.12.2007 passed by the fourth respondent and a further order, dated 15.12.2007 issued by the third respondent and after setting aside the same, for a direction to restore the petitioner as an Head Constable-GD with all consequential benefits. The said writ petition was admitted on 09.01.2008. Pending that writ petition, an interim stay so far as vacating the quarters was given. Subsequently, the petitioner filed M.P.No.1 of 2009 seeking amendment of prayer, which was also ordered by this court on 30.11.2009. As per the amended prayer, the petitioner has challenged the order dated 27.5.2008 passed by the second respondent, Deputy Inspector General of Police, Group Centre, CRPF, Avadi, modifying the order passed by the fourth respondent, dated 7.12.2007 and the notice to vacate the quarters, dated 15.12.2007 issued by the third respondent and for restoration of his service. On behalf of the respondents, a counter affidavit, dated 19.8.2008 was filed. https://hcservices.ecourts.gov.in/hcservices/ 3.The brief facts leading to filing these two writ petitions are as follows: The petitioner joined CRPF as a Constable-GD on 10.6.1983. He was transferred to Group Centre, Avadi 18th Battalion on 1.10.1996 and he was serving in that Battalion. After availing 60 days earned leave from 8.1.2007 to 08.3.2007, he rejoined duty on 09.3.2007. He submitted an application on 09.3.2007 stating that his father was admitted in the hospital due to Chest pain and requested for 15 days casual leave to see his ailing father. Accordingly, 17 days enhanced casual leave was sanctioned from 12.3.2007 to 3.4.2007 with permission to avail Government holidays and restricted holidays and Sundays. The petitioner was directed to report for duty on 4.4.2007. The petitioner visited his native place at Keelaiyur on 31.3.2007 and was taking care of some construction work. In that process, he fell down from upstairs and sustained injury in the backside of his hip. He was taken to Primary Health centre, Keelaiyur for first aid and subsequently, referred to the Government Hospital, Nagapattinam for Orthopedic treatment on 1.4.2007. He was given treatment upto 7.4.2007. He was advised to take rest for 30 days. 4.It was further stated that the petitioner was once again admitted from 8.5.2007 to 12.5.2007 for further treatment for Spondelities C Disc at the same hospital. After discharge, he was referred to Tanjore Medical College Hospital for MRI and for further treatment. The petitioner sent a telegram on 4.4.2007 which was received by the fourth respondent on 7.4.2007. The other telegrams sent by the petitioner were never received by the respondents. The case of the petitioner was examined and after noting his treatment, he was directed to rejoin duty on 8.5.2007. Since the petitioner failed to comply with the direction and has relied on some unattested medical documents, his leave on medical ground was not considered. It was only thereafter when the petitioner failed to comply with the condition, a complaint was lodged by the Officer Commanding 18th Battalion before the Commandant and the Chief Judicial Magistrate of 18th Battalion, CRPF. After taking cognizance of the complaint, a warrant of arrest was issued to the Superintendent of Police, Nagapattinam and the petitioner was directed to be produced. It was thereafter, the petitioner sent two letters with a copy of some unattested medical documents. 5.They were also surprised regarding the fact that when the petitioner was undergoing treatment in Tanjore Medical College Hospital, the MRI report produced showed that it was obtained from the Tamil Nadu Medical Services Corporation, Barnard Institute of Radiology, Madras Medical College and the Government General Hospital, Chennai. The warrant of arrest was not executed and the petitioner was overstaying his leave for more than 60 days. A court of enquiry was ordered by the fourth respondent. The Court of enquiry found that the petitioner was overstaying his leave without prior permission and no sanctioned leave by the competent https://hcservices.ecourts.gov.in/hcservices/ authority. Therefore, by exercise of power under Rule 31(c) of CRPF Rules, 1955, the petitioner was declared as deserter from the force and a copy was also served on the petitioner. A departmental enquiry was also initiated under Rule 27 of the CRPF Rules, 1955. A charge memo dated 28.8.2007 was given to the petitioner. The charge relating to overstayal of leave without sanction and being an habitual offender. 6.It was claimed that the petitioner was liable to be punished under Section 11(1) of the CRPF Act, 1949. Since there was no reply to the charge memo, the Deputy Commandant, fifth respondent, was appointed as an Enquiry Officer. The departmental enquiry was completed and the Enquiry Officer sent a letter to the petitioner to submit his further explanation on the enquiry report. The petitioner did not make any representation. Therefore, it was claimed that the charges were proved beyond doubt. He was dismissed by an order dated 7.12.2007. Despite dismissal, the petitioner did not vacate his quarters at Avadi Camp. While he was serving at 18th Battalion, his normal period of retention is only 5 years, but he was allowed to stay in the quarters since he was serving in the North Eastern Region in Jammu and Kashmir. Even after dismissal, the petitioner did not vacate the quarters. Therefore, an eviction was initiated under Section 5 of Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The petitioner applied for retention stating that he need quarters till the end of academic year 2007-2008 on the ground of his children's education. Thereafter, he moved this court and obtained stay against vacating quarters. 7.The short question that arises for consideration is whether the order declaring the petitioner deserter and thereafter, dismissing him from service suffer from any irregularity or illegality. 8.The contention raised by the petitioner was that he had sent a telegram which was not taken into account. Nonetheless, the petitioner did not give reply to the charge memo and also did not participate in the enquiry. Even after enquiry report, he did not send any explanation. Though initial absence of the petitioner may be supported by medical reasons, but for his continuous absence, there was no reply. Even in the departmental enquiry, the petitioner had not participated by giving his defence. 9.With reference to the petitioner being treated as deserter by the court of enquiry, no exception can be taken considering that it is declared that the CRPF is an armed force of the Indian Union and it is governed by the special rules. The Supreme Court has laid down parameters to treat the person as deserter in the armed force, in Capt. Virendra Kumar v. Chief of the Army Staff reported in 1986 (2) SCC 217. In paragraph 14 to 16, the Supreme Court held as follows: https://hcservices.ecourts.gov.in/hcservices/ "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. 16. It was within the competence of the authorities to prima facie decide whether the officer when he absented himself did or did not intend to return to duty. Whether, in the instant case, the authorities were justified in concluding that Captain Virendra Kumar had no intention of resuming duty, is not a matter upon which we are entitled to express any opinion. The position would be otherwise if the decision of the authorities could be shown to be mala fide. On the material available, we are not in a position to say that the decision was mala fide......" 10.A full fledged enquiry was also held and the petitioner was found to be unauthorised absent. It is the petitioner who did not https://hcservices.ecourts.gov.in/hcservices/ appear in the enquiry nor gave his explanation. In this context, it is necessary to refer to the judgment of the Supreme Court in Union of India v. Datta Linga Toshatwad reported in 2005 (13) SCC 709. The Supreme Court in paragraphs 6 to 8 held as follows: "6. One cannot ignore the large number of cases which come to this Court of members of uniformed forces remaining absent from duty without any reasonable explanation. Whenever action is taken, the usual plea taken is of having been ill or some such false pretext, and even fake or false medical certificates are produced in support of such a plea. We would not have taken a serious view of the matter had it not been a case of a constable belonging to CRPF remaining absent for an indefinite period. Even if we assume that the respondent was suffering from depression and was being treated as an outdoor patient, the medical certificates produced by him show that he was restored to normalcy on 4-4-1998 yet the respondent did not choose to report for duty. The order of dismissal was passed seven months later i.e. on 2-11-1998. This itself discloses the hollowness of the claim of the respondent regarding mental depression and imbalance which he claims to have suffered. 7. Reliance was placed on a judgment of this Court in Union of India v. Giriraj Sharma1, which was also a case of a constable employed in CRPF. In that case the respondent had been punished by an order of dismissal for overstaying on leave by 12 days. The High Court took the view that for such misconduct the punishment of dismissal from service was not justified and was also harsh. This Court, while agreeing with the High Court, dismissed the appeal by holding that in the facts of the case, instead of a major penalty, a minor penalty would have been sufficient. 8. The present case is not a case of a constable merely overstaying his leave by 12 days. The respondent took leave from 16-6-1997 and never reported for duty thereafter. Instead he filed a writ petition before the High Court in which the impugned order has been passed. Members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner described, https://hcservices.ecourts.gov.in/hcservices/ are cases of desertion particularly when there is apprehension of the member of the force being called upon to perform onerous duties in difficult terrains or an order of deputation which he finds inconvenient, is passed. We cannot take such matters lightly, particularly when it relates to uniformed forces of this country. A member of a uniformed force who overstays his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. He appears on the scene for the first time when he files a writ petition before the High Court, rather than reporting to his Commanding Officer. We are satisfied that in cases of this nature, dismissal from the force is a justified disciplinary action and cannot be described as disproportionate to the misconduct alleged." 11.In the light of the above, both the writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vvk To 1.Director General of Police, Central Reserve Police Force, C.G.O. Complex, Lodhi Road, New Delhi. 2.Deputy Inspector General of Police, Group Centre, CRPF, Avadi, Chennai-65. 3.Additional Deputy Inspector General of Police, Group Centre, CRPF, Avadi, Chennai-65. https://hcservices.ecourts.gov.in/hcservices/ 4.The Commandant, 18th Battalion, CRPF, C/o.56 APO Sri Nagar. 1 cc to Mr.M. Md.Ibrahim Ali, Advocate, SR. 28503 1 cc to Mr.A.S. Chakravarthy, Advocate, SR. 27761 W.P.NOS.27695 OF 2007 AND 819 OF 2008 PA (CO) kk 6/5 https://hcservices.ecourts.gov.in/hcservices/