UNION OF INDIA Vs. MANAB DEKA

JUDGEMENT

(1.) 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 the orders dated 29.09.1998 and 21.03.2006 passed by the Commandant, 96 Bn. CRPF, Auran-gabad, Bihar and DIGP, CRPF, respectively. Whereas, by the first order, penalty of dismissal from service had been awarded to the respondent as a disciplinary measure, the second recorded the rejection of his statutory appeal against the same. THE learned Single Judge by way of consequential relief directed his reinstatement in service with all conseq-uential benefits under the law.

(2.) WE have heard Mr. N. Zaman, learned Central Government Counsel for the appellants and Mr. S.K. Barkatakey and Ms. S. Sarma, Advocates for the respondent.

(3.) MR. Zaman, has persuasively argued that as the respondent had remained absent from duties without seeking leave as required under the law and that too for a period of 76 days at a stretch, considering the fact that at all relevant 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 rightly dismissed from service. The learned Central Government Counsel argued that as no point of time, the respondent had either prayed for leave or had communicated with the Unit during his absence explaining the reason therefor, the disciplinary measure of dismissal was appropriate, having regard to the norms of discipline in the Force and, therefore, the learned Single Judge had erred in interfering with the impugned order. The learned counsel for the respondent/writ petitioner has submitted with reference 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 conceived of in Section 9 (f) and, therefore, the imposition of the penalties of imprisonment on him and eventual dismissal from service are apparently unsustainable in law and on facts and had, therefore, been rightly annulled by the impugned judgment and order. Contending that having regard to the emergent circumstances under which the respondent had to rush back to be by the side of his ailing wife following by his illness, he could not as well be condemned for absenting from service without leave and thus, no interference with the impugned judgment and order 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 admitt-edly, no enquiry, as contemplated therein had been held, the inference that the respondent had been, during the relevant time, absent without leave or sufficient cause is not available 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 12 (1) of the Act, the order of dismissal had been rightly interfered with.