IRSHAD AHMAD TANTARY Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Mr. S.K. Sharma, the learned counsel for the petitioner and Mr. Akashdeep, the learned counsel for the respondents.

(2.) The petitioner has preferred this writ petition for quashing the order dtd. 16/7/2003 contained in Annexure-3. Further prayer is made for quashing the order dtd. 17/7/2003 whereby the petitioner has been dismissed from the service. The prayer for consequential benefits has also been prayed for.

(3.) The petitioner is a permanent resident of the State of Jammu and Kashmir. The petitioner was working as constable in 22nd Bn., CRPF, at Hazaribagh had submitted leave application before respondent no. 3 for grant of leave of 10 days w.e.f. 6/9/2002. The petitioner was allowed the said leave and was proceeded on leave and was required to join on 19/9/2002. On 12/9/2002, the petitioner received a letter from militant organization calling him not to go back till some enquiry regarding his involvement. The petitioner because of threat to his family members by militant organization, the petitioner was forced to stay at home and could not resume the duty before 19/9/2002. The petitioner sent telegram to that effect to the respondent no.3. The letter received by the petitioner from the militant organization was sent to the Commandant-7 RR, C/o 56 APO, which was sent to 22nd Bn CRPF. The respondent no.5 presented an application on 14/2/2002 under sec. 10(m) of Central Reserve Police Force Act, 1949 [hereinafter to be referred as the Act]. On 1/1/2003 the petitioner was directed to be arrested and produced by Sr. S.P., Anantnag, J&K. The petitioner was charged with offence of overstaying from leave under sec. 10(m) of the Act. The petitioner reported back on 29/1/2003 and resumed his duties in D/22 CRPF located at Garhwa and he has also explained the reason for overstaying. The petitioner was allowed to join duty. The warrant issued against the petitioner was also cancelled. On 5/6/2003 the petitioner was directed to attend the Court of respondent no.4 on 12/6/2003. The petitioner was explained the charge. The petitioner replied that he has already explained the reasons. The respondent no.4 by order dtd. 16/7/2003 held the petitioner guilty for overstaying under sec. 10(m) of the Act and sentenced him to undergo imprisonment till rising of the Court. The respondent no.3 in exercise of power under sec. 12(i) of the Act dismissed the petitioner from service on the ground that he has been convicted of offence of overstaying from leave. Aggrieved with this, the petitioner has moved before the High Court of Jammu and Kashmir at Srinagar in S.W.P. No.714 of 2014. The said writ petition was not entertained on the ground of territorial jurisdiction of that Court, however, the writ petition was disposed of granting liberty to the petitioner to challenge the impugned order before the appropriate jurisdictional Court. The observation was also made that the said court may consider the challenge without reference to the delay and laches as the petitioner has prosecuted his case from 2004 till the order was passed in that writ petition on 7/9/2016. Thereafter, the petitioner has filed this writ petition before this Court.