RAGHUBIND PASWAN Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has assailed the impugned order of dismissal dated 27.03.1997 (Annexure P-5) passed by respondent No.3 and order dated 21.10.1997 (Annexure P-7) passed by respondent No.2 rejecting his appeal on the averments that he joined as Constable in the Indo Tibetan Border Police Force on 07.04.1988 and had put in 09 years of service as on the date of dismissal. In June, 1996, the petitioner was granted 15 days casual leave from 06.06.1996 to 22.06.1996 and was required to report back in the unit on 23.06.1996 (AN). During the leave period, the petitioner suffered an attack of acute mental imbalance and he was taken to Kanke (Ranchi) for psychiatric treatment at Mansik Arogshala, where he remained under treatment from 20.06.1996 to 25.08.1997. On account of his illness, he could not rejoin his unit at Panchkula. After the recovery, petitioner returned to his home place and was shocked to receive that impugned order dismissing him from service on account of having overstayed his leave. The Court of Inquiry had declared the petitioner as deserter. No efforts were made to trace out the petitioner, who had overstayed his leave for a period of over one year.

(2.) The petitioner had preferred a statutory appeal against the order of dismissal but the same has been rejected. The petitioner had filed a petition i.e. CWP-10595-1997 in Patna High Court as he was residing in the territorial jurisdiction of that High Court where dismissal order has been served. The said CWP was dismissed on the ground of jurisdiction being not maintainable. The petitioner had approached the respondents for supply of the documents, but to no effect. The impugned orders have been alleged to be illegal, violative of principles of natural justice and liable to be quashed.

(3.) The respondents through reply have raised preliminary objections alleging that the petitioner has been dismissed solely on the ground that he had absented from duty for 09 months and 04 days without any sanction, authority and information to the competent authority. The petitioner being a member of disciplined force cannot take advantage of his own wrong. The procedure as laid down in Section 74 (2) read with Section 21 (b) of Indo-Tibetan Border Police Force Act, 1992 (for short 'the Act') was followed, proper inquiry was conducted and the petitioner was declared deserter from force with effect from 24.06.1996. It was specifically mentioned in the leave certificate that extension of leave was not permissible and time limit was to be strictly followed. The petitioner chose to remain absent for 09 months and 04 days without sending any communication. Consequently, the petitioner was declared as deserter.