1. Heard Mr. P.K. Deka, learned counsel appearing for the petitioner and Ms. R. Bora, learned CGC, appearing on behalf of the respondents.

2. This is an application under article 226 of the Constitution of India, whereby, petitioner has challenged the legality and validity of the order dated 5.5.2005, dismissing him from service in the Central Reserve Police Force (CRPF). The petitioner also seeks quashing of the order dated 25.4.2004, declaring him to be a deserter.

3. A brief recital of the facts is considered necessary.

4. Petitioner was appointed as a Lower Division Clerk (LDC) in the CRPF in the year 1971. In the course of his service, he was promoted to the post of Sub-Inspector (M). At the relevant point of time, petitioner was posted in the Office of the Inspector General of Police (OPS) CRPF, Agartala. In the month of June 2003, petitioner was transferred to and posted at Ranch.

5. Because of frequent transfer and posting of the petitioner to various operational areas, where family accommodation was not possible, his family had to face various problems including health related ones. A transfer policy was in place in the CRPF, vide Standing Order No. 55/4/1 circulated by the Office of the Director General of CRPF dated 24.2.1999, whereby transfer cases of compassionate nature could be considered, particularly of those, whose retirement is due within 2 years.

6. On the basis of the said transfer policy, the DIGP (OPS), CRPF, Agartala, recommended the case of the petitioner for his posting at Guwahati on 2.1.2003. However, disregarding such recommendation and the transfer policy in vogue, petitioner was transferred to and posted at Ranchi vide signal dated 9.6.2003. Petitioner was granted 45 days earned leave and 15 days joining time to join his new place of posting at Ranchi. Petitioner was struck off from the rolls of the Agartala Office w.e.f. 14.7.2003.

7. Petitioner was required to join at Ranchi by 13.9.2003, but because of health reasons, he could not join. He had to undergo treatment in the Gauhati Medical College Hospital (GMCH) and also in the Mahendra Mohan Choudhury Hospital (MMCH), Guwahati. He also attended the CRPF Base Hospital at Guwahali. He was diagnosed with several ailments including Tuberculosis and was accordingly referred to the Lokopriyo Gopinath Bordoloi Chest Hospital at Guwahati. His wife was a severe heart patient and also required regular medical attention.

8. Petitioner's wife preferred an application dated 30.11.2003 before the Director General, CRPF, New Delhi, requesting modification of the transfer order so that he could be posted at Guwahati, which would be his home posting, because of the multiple health problems at home. Petitioner also submitted applications before the higher authorities on 13.9.2003, H.11.2003, 29.12.2003, 27.1.2004, 27.2.2004 and 24.3.2004. Petitioner was directed to avail treatment either at the CRPF Base Hospital at Guwahati or to report at Ranchi to undergo treatment there. Petitioner availed treatment at the Base Hospital at Guwahati but there was no improvement.

9. However, petitioner was declared a deserter on 25.4.2004. Additionally, a departmental proceeding was initiated against the petitioner under rule 27 of the CRPF Rules, 1955, for overstaying of leave and thereby remaining absent from duty. Petitioner was charged with committing an act of misconduct and disobedience to orders passed by the superior authorities. On receipt of the charge memo dated 22.7.2004, which was accompanied by a statement of imputation of misconduct/disobedience, list of documents and list of witnesses, petitioner submitted his written statements on 30.8.2004. Petitioner explained the circumstances because of which he could not join duty at Ranchi. He stated that he was in a totally bed ridden condition at that point of time and requested the disciplinary authority to drop the proceeding and to regularize his period of absence.

10. According to the petitioner, because of his ailment, he

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