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A Constable’s Unauthorized Absence From Duty – In The High Court Of Judicature At Bombay

Petitioner, a former employee of the Central Reserve Police Force (CRPF), is assailing the order of dismissal dated 09-7-2009 issued by the Disciplinary Authority. Petitioner reported at the Composite Hospital at Guwahati at 9-00 hours 16-7-2008. It is an absolute position on record that the petitioner declined to avail treatment and left the hospital for his native place without informing the competent authority, much less applying for and securing the requisite permission. ROHIT B. DEO, J on 19.01.2022  pronounced this Judgement in RAJU S/O OF BISHAN WASNIK V. INSPECTOR GENERAL OF POLICE, CENTRAL RESERVE POLICE FORCE, AGARTALA, AND 2 OTHERS.

Facts of the Case – On 17-3-2001, the petitioner, a permanent resident of Bhandara, Maharashtra, enrolled in the CRPF as a Constable. On transfer from 111 Battalion, petitioner was assigned to A/124 Battalion, CRPF, and reported to A/124 Battalion on February 7, 2007. Petitioner became ill on 17-4-2008 and was referred to the Group Centre Hospital, CRPF in Agartala on 24-4-2008 after receiving initial treatment at the Unit. Petitioner was then referred to Agartala’s G.B. Pant Government Hospital, where he was hospitalized from May 1 to May 13, 2008. The petitioner was granted leave from May 21 to June 12, 2008. After returning to duty, the petitioner became ill again and was transferred to the CRPF Group Centre Hospital in Agartala. He was evaluated and referred to the Composite Hospital in Guwahati.

On 17-7-2008, a First Information Report was filed at Police Station Zorabat in Guwahati, and the petitioner’s parent unit was notified of the desertion. The Commandant, 124 Battalion, issued an arrest warrant addressed to the Superintendent of Police, Nagpur, Maharashtra. For reasons not evident from the record, the arrest warrant could not be carried out. The Commandant of the 124 Battalion summoned a Court of Enquiry to investigate the circumstances behind the petitioner’s absence from duty. According to the Court of Enquiry’s recommendations, an order was issued on 13-1-2009 declaring the petitioner a “DESERTER” with effect from 16-7-2008, and a charge-sheet was drafted on 02-2-2009. Mr. Anupam, Assistant Commandant, was designated as the Enquiry Officer.

The Enquiry Officer sent the petitioner a Registered Mail message dated 22-2-2009, requesting him to come and assist in the investigation. The petitioner did not appear before the Enquiry Officer, who issued another notice dated 07-3-2009, which was also delivered by Registered Post, requesting that he engage in the investigation. The petitioner failed to answer again, and the Enquiry Officer continued with the investigation ex parte. With an order dated 09-7-2009, the Disciplinary Authority accepted the investigation report and issued a punishment of dismissal from service. DIES-NON was applied to the duration of unauthorized absence from duty. After being aggrieved by the discharge decision, the petitioner filed an appeal under Rule 28 of the Central Reserve Police Force Rules, 1955, after being aggrieved by the discharge decision, which was dismissed by the respondent-3 appellate authority. After which, the petitioner filed for the writ petition.

The Learned Judge of the Petitioner, Mr. A.D. Dangore, humbly submits that the petitioner was not given a sufficient and adequate chance to participate in the departmental investigation, and the statutory appeal and revision were denied without a personal hearing. Mr. A.D. Dangore argued that the right to an oral hearing is an inherent part of the principles of natural justice and that even if the Service Rules do not expressly provide for it, the responsibility to give an oral hearing is implicit and must be read into the legislative provision. The content and tone of the petitioner’s note of appeal and revision and the notification sent to the respondents by the petitioner’s Counsel show that the petitioner admits to desertion, and a medical and psychological condition, including depression, is used to justify it.

The Learned Counsel of Respondents, Mr. A.J. Gilda, argues that the right to a personal or oral hearing cannot be incorporated into a statutory provision providing for an appellate remedy and is not a fundamental component of the principles of natural justice, citing many Apex Court rulings. Mr. A.J. Gilda contends that the appellate and revisional authorities were not bound to offer a personal hearing to the petitioner since neither Rule 28 nor Rule 29 of the Rules provide for it, especially since the petitioner did not even request it. Mr. A.J. Gilda would want to underline that the right to appeal is neither a natural right nor a part of natural justice. In essence, the argument is that the section that grants such a privilege is the exclusive repository of the appellate authority’s powers and responsibilities. Thus, inserting the necessity of giving personal hearings into the provision would be illegal and contrary to the legislative mandate.

The Learned Judge refers to the Supreme Court Case, which is broad pari materia with the provisions in the CRPF Rules, in Oriental Bank of Commerce and another vs. R.K. Uppal, (2011) 8 SCC 695. The Learned Judge rejects the argument that the appellate or revisional authority was compelled to provide a chance for a personal hearing in light of the Hon’ble Supreme Court’s authoritative and unequivocal enunciation of law. The Judge is also satisfied that, despite the irrefutable, nay admitted, position on record that the petitioner abandoned duty or post without even informing the competent authority, much less obtaining prior permission, the petitioner has suffered no prejudice because, in the glaring facts, a personal hearing would have been a rite of passage. Given that the CRPF is a front-line paramilitary unit, the penalty of dismissal for confirmed desertion misbehavior is neither severe nor unjust. In exercising writ jurisdiction, the Judge sees no basis to interfere with the assailed orders. The petition is rejected because it lacks merit. There are no costs.

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Reviewed by Rangasree

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