SANTOSH KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and the counsel for the Union of India.

(2.) PETITIONER at the relevant time served as Sepoy/GD, Force No. 981280059 with the 114 Battalion of the CRPF. He filed this writ application on 30.6.2005 praying, inter alia, to direct the authorities of the CRPF, including the Commandant of 114 Battalion to accept his joining which was not being accepted and for such relief, he had already represented before the Deputy Inspector General and the Inspector General, vide his representations dated 15.4.2005 and 25.4.2005, as contained in Annexures -1 and 1/A to this application, but the representations were not being considered. By filing supplementary affidavit dated 21.4.2006 in the office of this Court on 15.5.2007, copy whereof was served on the office of the learned Assistant Solicitor General of India on 17.8.2006, as is evident from the receipt appended with the said supplementary affidavit, petitioner further submitted that he was granted 60 days earned leave on 11.12.2004 for the period between 13.12.2004 to 10.2.2005 by the Officer Commanding, 114 Battalion with further direction to report at the transit camp, Jammu on 10.2.2005 by the time of evening roll call. In compliance of the aforesaid instructions, petitioner having availed the leave, reported his joining at the transit camp, Jammu on 11.2.2005 when there was heavy snowfall on the Jammu -Srinagar Highway. Petitioner was, accordingly, detained at the transit camp, Jammu until 14.2.2005, whereafter he was again allowed 15 days earned leave from 15.2.2005 to 1.3.2005 since the weather conditions in the area did not improve and there was no likelihood of the road being opened for traffic so as to enable the petitioner and others to move towards the assigned place of duty. In compliance of the direction to report for duty on 1.3.2005, he boarded Archana Express for reaching Jammu on 1.3.2005, but on account of obstruction on the railway track beyond Ambala, said train reached Jammu on 3.3.2005 whereafter he reported at the transit camp, Jammu and remained in the transit camp, Jammu till 10.3.2005 on account of the continued inclement weather when he was again allowed 20 days earned leave from 11.3.2005 to 30.3.2005. On 31.3.2005, he again reported at the transit camp, Jammu and remained there for the night. The fact that petitioner was allowed earned leave for the period 13.12.2004 to 10.2.2005 is evident from the memo of the Commanding Officer dated 11.12.2004, which is appended as Annexure -3 to the supplementary affidavit. Further fact that the petitioner was again allowed further earned leave for the period 15.2.2005 to 1.3.2005 and 11.3.2005 to 30.3.2005, is evident from endorsement made by the officers present at the transit camp, Jammu on the reverse of the memo of the Commanding Officer dated 11.12.2004, Annexure -3. Petitioner was informed by the Inspector present in the transit camp, Jammu that the Battalion has been moved from Srinagar in J&K to Tura in the State of Meghalaya via Guwahati. Petitioner, accordingly, reached Guwahati by train alongwith other Jawans of the Battalion on 4.3.2005. The Dy. S.P (O.C.) and Chief Havaidar Major also accompanied him and other Jawans. From Guwahati, the Battalion was to move to Tura by road, but petitioner was prevented from boarding the vehicle for going to Tura and was left at Guwahati Railway Station where he stayed on the platform on 4.3.2005 after purchasing platform ticket and later came back to Patna and filed representations dated 15.4.2005 and 25.4.2005, Annexures -1 and 1/A to this application, but the representations we 're also not considered then he filed the present writ application. During the pendency of this writ application, petitioner was served with the memo of charge dated 28.11.2005 issued under the signature of the Commandant, 114 Battalion alleging that petitioner remained under unauthorized absence after expiry of the leave with effect from 11.2.2005 and is required to be proceeded against in terms of the provisions contained in sub -section (1) of Section 11 of the CRPF Act, 1949 and the Rules framed thereunder. Petitioner placed the said memo of charge and other documents as Annexure -2 to the aforesaid supplementary affidavit. He also placed on record the journey ticket from Jammu to Guwahati, platform ticket of Guwahati Railway Station and other documents to establish that he has been in attendance at the Jammu Transit Camp on 11.2.2005 as also on subsequent dates until he moved for Guwahati by train on way to Tura along -with other Jawans of the Battalion. He also placed on record the representation addressed to the Commandant, 114 Battalion dated 27.12.2005, Annexure -5 after receipt of the memo of charge dated 28.11.2005 giving graphic description of the events in support of the fact that he has been reporting in the transit camp at Jammu with effect 11.2.2005 and again requested the authorities to accept his joining and thereafter to proceed in accordance with law.

(3.) THE authorities have filed two counter affidavits in the office of this Court on 30.4.2008 duly affirmed by the Additional Deputy Inspector General (Administration), Bihar Sector, CRPF on 13.12.2007 and on 17.12.2007, perusal of the counter affidavit affirmed on 13.12.2007 indicates that petitioner has been proceeded against ex parte for his failure to join the Battalion on 11.2.2005 and in the ex parte proceeding he has been held guilty of the charge that he failed to join the Battalion on 11.2.2005 and has been dismissed from service under order dated 1.12.2006, but the dismissal order has not been placed on record for the reasons best known to the authorities. While affirming the counter affidavit dated 13.12.2007, the authorities of the CRPF have conveniently ignored the facts stated in the supplementary affidavit filed by the petitioner that having availed the 60 days|earned leave till 10.2.2005, he joined the transit camp at Jammu on 11.2.2ik >5 when there was heavy snowfall on the Jammu -Srinagar Highway. Petitioner was, accordingly, detained at the transit camp, Jammu until 14.2.2005, whereafter he was again allowed 15. days earned leave from 15.2.2005 to 1.3.2005 so as to enable the weather conditions in the area to improve for his onward movement to the assigned pla £e of duty. In order to report at the transit camp, Jammu on 1.3.2005, he boarded Archana Express for reaching Jammu on 1.3.2005, but as there was obstruction on the railway track beyond Ambala, the train reached Jammu on 3.3.2005 when he reported at the transit camp, Jammu, but on account of inclement weather, was again detained in the transit camp, Jammu until 10.3.2005 when he was allowed 20 days earned leave with effect from 11.3.2005 to 30.3.2005. On 31.3.2005, he again reported at transit camp, Jammu and remained there for the night and in the morning he proceeded with other Jawans of the Battalion to Tura in the State of Meghalaya via Guwahati. Petitioner reached Guwahati alongwith other Jawans of the Battalion on 4.3.2005. The Dy. S.P (O.C.) and Chief Havaldar Major also accompanied him. From Guwahati, the Battalion was to move to Tura by road, but petitioner was prevented from boarding the vehicle for going to Tura and was left at Guwahati Railway Station where he stayed on 4.3.2005 on the platform after purchasing platform ticket and later came back to Patna and thereafter filed representations dated 15.4.2005 and 25.4.2005, Annexures -1 and 1/A to this application.