The main legal point established is that absence from duty cannot be deemed wilful if due to compelling circumstances, and disciplinary proceedings must be based on cogent material.

JUDGMENT :

1. The petitioner challenged order bearing No. Estt/59932/DE/7th Bn/02(E)/8264-69-70, dated 01.04.2004 issued by respondent No. 5 by virtue of which punishment of reduction of rank from Nk/GD to L/Nk/GD for two years from the date of issue of the said order, has been passed against him. The petitioner has also challenged memorandum dated 30.06.2004, whereby his appeal against the aforesaid order has been rejected.

2. Briefly stated, the case of the petitioner is that he was appointed as constable with Sashastra Seema Bal (SSB) on 03.01.1989. In the year, 1997, he was promoted as Lance Naik, whereafter, he was promoted as Naik in April, 2002. According to the petitioner, he had applied for 10 days leave in August, 2002, which was sanctioned in his favour vide order dated 03.08.2002. The leave was granted to the petitioner with effect from 04.08.2002 to 15.08.2002. It has been submitted by the petitioner that during the leave period, he fell ill and was admitted to Sub District Hospital, Akhnoor on 12.08.2002. On 16.08.2002, he applied for extension of leave on medical ground, which was duly received by the respondents on 19.08.2002. According to the petitioner, he had duly intimated the relevant authorities about his illness.

3. It has been submitted that from Sub District Hospital, Akhnoor, he was referred to Government Medical College, Hospital, Jammu on 11.09.2002, where he remained under treatment with effect from 11.09.2002 to 23.11.2002. It is the further case of the petitioner that he was referred to Chest Diseases Hospital, Jammu on 23.11.2002, where he remained under treatment up to 12.03.2003. The petitioner is stated to have intimated the respondents from time to time about his illness. Ultimately, the petitioner joined his duty on 12.03.2003. The respondents are stated to have served a charge sheet upon the petitioner vide memorandum dated 09.01.2003 alleging therein that the petitioner has absented himself from duty without any intimation. It has also been alleged in the charge sheet that despite having been directed to join his duty, the petitioner disobeyed the said directions and as such, he has committed acts of gross disobedience/negligence thereby exposing him to charge in terms of Section 9(f) of the Central Reserve Police Force(CRPF), Act.

4. According to the petitioner, an enquiry was conducted by the respondents in his absence without following the procedure laid down in Rule 27 of the CRPF Rules. It has been submitted that despite the petitioner having produced entire medical record before the respondents, which goes on to show that he was under treatment during all this period, the Enquiry Officer without appreciating the position of law and without taking into account the material produced by the petitioner, submitted a report against the petitioner, thereby finding him guilty of the charge. It has also been contended that the respondents ignored the circumstances in which the petitioner was unable to join the duties and declared him as a deserter. On the basis of the findings of the enquiry report, the impugned punishment in reduction of rank from Nk/GD to L/Nk/GD for a period of two years has been imposed upon the petitioner in terms of order dated 01.04.2004. It has been submitted that the petitioner had filed an appeal before the appellate authority on 30.04.2004 but his appeal was also rejected in terms of communication dated 07.08.2004.

5. The respondents have contested the writ petition by filing a reply thereto. In their reply, the respondents have admitted that the petitioner was granted 10 days earned leave w.e.f. 05.08.2002 to 14.08.2002. According to the respondents, the petitioner was required to resume duty on 15.08.2002 in the evening roll call but he did not turn up, as a result of which, he was marked absent in the Daily Diary. It has been admitted by the respondents that the petitioner had informed Assistant Commandant, ‘D’ Coy at Srinagar vide his letter dated 16.08.2002 that d