The main legal point established in the judgment is that the necessity of a court of enquiry in cases of desertion and the proportionality of the punishment imposed should be considered in light of the relevant provisions of the Central Reserve Police Force Act, 1949 and the Central Reserve Police Force Rules, 1955.

JUDGMENT :

Raja Basu Chowdhury, J.

1. The present writ petition has been filed, inter alia, challenging the order dated 27th October, 2009 passed by the Inspector General of Police, Central Reserve Police Force (CRPF) as also the order dated 23rd June, 2008, issued by the Commandant 171 Battalion, CRPF.

2. The petitioner was an employee of the CRPF and was designated as Water Carrier. At the relevant point of time, he was posted at 171 Battalion at Tangasole, West Midnapore.

3. According to the petitioner, on 7th November, 2007 a movement order was issued. Although the petitioner in terms of the said movement order had proceeded from Tangasole Head Quarter to Burijore of Midnapore, unfortunately, on 8th November, 2007 at around 8.12 hrs., in the morning when he called up his wife to ascertain her condition, he came to learn that his wife was seriously ill. According to the petitioner, he became confused and had to return to his home to see his wife. The petitioner claims that at the relevant point of time his wife was pregnant and that was the reason for his worry.

4. On 9th November, 2007, the petitioner had informed the Commandant with regard to the aforesaid development by posting a registered letter with acknowledgement due addressed to the Commandant of 171 Battalion. Subsequently the petitioner was served with an order of suspension dated 24th January, 2008 and later, on the basis of a charge-sheet levelled against him on 8th February, 2008 an enquiry was conducted by the Assistant Commandant under the provisions of Section 11(1) of the Central Reserve Police Force Act, 1949 (hereinafter referred to as the “said Act”), read with Rule 27 of Central Reserve Police Force Rules, 1955 (hereinafter referred to as the “said Rules”). On the basis of the aforesaid enquiry, the petitioner was removed from service. Such fact would corroborate from the communication dated 23rd June, 2008.

5. Being aggrieved, the petitioner had preferred an appeal. Since the appeal was kept pending, the petitioner had moved this Hon’ble Court under Article 226 of the Constitution of India by filing a writ petition which was registered as WP 3369 (W) of 2009. By an order dated 16th March, 2009, a Coordinate Bench of this Hon’ble Court taking note of the pendency of the appeal, had directed the Deputy Inspector General of Police, CRPF, to consider and dispose of the appeal on merits as early as possible but positively within 30 days from the date of receipt of a copy of this order.

6. Records reveal that the Appellate Authority had since, in terms of the direction passed by a Coordinate Bench of this Court decided the appeal and by order dated 4th April, 2009 having noted that the charges levelled against the petitioner have been established, and considering the serious misconduct committed by him found the penalty of removal from service to commensurate with his misconduct. Thus, having not found any cogent reason to interfere with the order of the Disciplinary Authority, the Appellate Authority had rejected the appeal as devoid of merit.

7. The petitioner had, however, unsuccessfully challenged the said order by filing a revisional application. Since then, the present writ petition has been filed.

8. Mr. Jaiswal, learned advocate representing the petitioner, by drawing attention of this Court to the charge-sheet submits that the respondents had levelled a charge of desertion against the petitioner by terming him as “Bhagora”. He submits that once, an allegation of this nature is levelled, the respondents are obliged to hold a Court of enquiry in terms of the provisions contained in Rule 31 of the said Rules. Admittedly, in this case, the enquiry was conducted by the Assistant Commandant. No court of enquiry was held. Since the procedure for holding enquiry was not followed, the entire enquiry proceeding stands vitiated. In support of his aforesaid contention he has placed reliance on the judgment delivered by the Hon’ble Supreme Court in the case of V