'Absence Without Leave Cannot Be Treated As Desertion Without Inquiring Into Cause': P&H High Court Grants Relief To CRPF Constable

The Punjab & Haryana High Court has held that absence without leave cannot be treated as desertion without examining whether such absence was wilful. The Court observed that absence by itself does not constitute misconduct unless it is proved to be wilful on the basis of material on record.Justice Sandeep Moudgil was hearing a writ petition filed by a CRPF constable challenging the order dated 15.12.2018 declaring him a proclaimed person/deserter and the order dated 25.04.2019 dismissing him from service. The petitioner had proceeded on sanctioned leave but did not rejoin duty thereafter due to a road accident resulting in a foot injury, followed by continued medical treatment, including hospitalisation. He contended that his absence was on account of a medical condition and that he had informed the authorities, whereas the respondents asserted that he failed to report despite repeated communications and was declared a deserter after a Court of Inquiry.The Court noted that the scope of judicial review in service jurisprudence permits interference not only where procedure is flawed, but also where findings are perverse, material evidence is ignored, or punishment is disproportionate.The Court examined the statutory framework under the CRPF Act, 1949 and the CRPF Rules, 1955, particularly Rule 31, and noted that declaration of a person as a deserter carries serious civil consequences and requires adherence to the prescribed procedure. It observed that although the petitioner remained absent, he had placed medical material on record indicating injury, treatment and hospitalisation, which was neither discredited nor meaningfully considered by the authorities.The Court further noted that the petitioner had been proceeded against for absence without leave, yet the same was treated as desertion without a proper examination of the cause of absence. On the aspect of procedure, the Court held that mere dispatch of notices does not satisfy the requirement of affording a real and effective opportunity of hearing.“… the respondents have treated absence as defiance, without examining whether it was in fact distress which prohibited the petitioner from reporting back and the law does not permit such substitution of assumption for adjudication,” the Court observed. The Court further highlighted that the State, even in its capacity as employer in a disciplined force, is bound by fairness under Articles 14 and 21. A member of a uniformed force does not forfeit his humanity at the altar of discipline. Institutional discipline and individual dignity are not antithetical but are complementary constitutional values.Accordingly, the High Court allowed the writ petition, set aside the order declaring the petitioner as a deserter/proclaimed person and the order of dismissal from service, and directed reinstatement with continuity of service along with consequential benefits, including arrears of salary with interest at 6% per annum.Case Title: Vivek Kumar vs. Union of India & Ors. [CWP-21794-2020]Click Here To Read/Download Order

'Absence Without Leave Cannot Be Treated As Desertion Without Inquiring Into Cause': P&H High Court Grants Relief To CRPF Constable

Saksham Vaishya

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