NARAYAN SAMANTARAY Vs. DIRECTOR GENERAL, CRPF

JUDGEMENT

(1.) The petitioner has filed this application challenging the order of dismissal passed by the Commandant, 21 BN CRPF dated 30.11.1983 in Annexure-2 as well as the order of the appellate authority confirming the order of dismissal dated 23.11.1992 under Annexure-5 on the ground of long absence from duty.

(2.) The short fact of the case is that the petitioner having been selected by following due procedure of selection as a Constable joined in CRPF in May, 1979. After completion of his training, he was posted at Mukamaghat and thereafter posted at 21st CRPF BN, Mizoram and then transferred to 21st BN CRPF, Ajmer-7. While he was continuing there, he applied for two months leave from 26.02.1983 but one month leave, i.e. from 26.02.1983 to 27.03.1983 was sanctioned. As his marriage was suddenly fixed, he sent a telegram on 25.03.1983 for extension of his leave. As a murder was occurred in his village on 24.03.1983 wherein the petitioner has been falsely implicated, he sent a letter to the Commandant 21st BN CRPF, Ajmer on 26.04.1983 under Annexure-1 intimating that he has been falsely implicated in a case and is likely to be arrested at any moment and will report to duty after acquittal from the criminal case. Thereafter the petitioner was arrested and remanded to jail custody till he was released on 04.02.1991 after the judgment was passed by this Court on 31.01.1991 in Criminal Appeal No. 177 of 1987 acquitting him from the criminal case. Due to non-joining of the petitioner in duty after expiry of one month sanctioned leave, charge was framed and an ex-parte inquiry was conducted whereafter he was dismissed from service on 30.11.1993 vide Annexure-2. It is stated that he had no knowledge about the charge and ex-parte inquiry as he was in jail custody no notice was issued to him and after acquittal and release from jail he preferred an appeal on 07.05.1991 explaining the position stating that his absence from duty was neither due to his own fault or willful due to negligence. Therefore, there is no question of disobedience of any order on his part. The Disciplinary Authority vide letter dated 11.11.1991 under Annexure-3 asked the petitioner to intimate the period of detention in police/judicial custody for necessary action. In appeal dated 28.11.1991 vide Annexure-4, the petitioner intimated the period of detention in jail custody and explained the detailed position. The appellate authority on consideration of the same, confirmed the order of dismissal vide order dated 23.11.1992 under Annexure-5.

(3.) Mr. G.A.R. Dora, learned Senior Counsel appearing for the petitioner states that the order of dismissal has been passed ex-parte without giving opportunity of hearing to the petitioner. Therefore, the order passed by the disciplinary authority as well as the appellate authority is liable to be set aside. More so, no notice has been given to the petitioner in view of the fact that the petitioner was in jail custody and as such, there is no material available on record to indicate that notice has been issued to the petitioner in the address of the jail giving opportunity to him. Therefore, the order of dismissal has to be set aside. Apart from the same, it is urged that the petitioner having intimated the authorities vide Annexure-1 that due to village dispute, he has been falsely implicated in the criminal case and FIR has been lodged against him and he is likely to be arrested at any moment he shall report to his duty after acquittal from the criminal case. Therefore, sufficient intimation has been given to the authority indicating his long absence thereby the authority could not have taken such harsh step for dismissal against the petitioner.