JUDGMENT :

Heard Mr. S.K. Sharma, the learned counsel for the petitioner and Mr. Akashdeep, the learned counsel for the respondents.

2. The petitioner has preferred this writ petition for quashing the order dated 16.07.2003 contained in Annexure-3. Further prayer is made for quashing the order dated 17.07.2003 whereby the petitioner has been dismissed from the service. The prayer for consequential benefits has also been prayed for.

3. The petitioner is a permanent resident of the State of Jammu and Kashmir. The petitioner was working as constable in 22nd Bn., CRPF, at Hazaribagh had submitted leave application before respondent no.3 for grant of leave of 10 days w.e.f. 06th September, 2002. The petitioner was allowed the said leave and was proceeded on leave and was required to join on 19.09.2002. On 12.09.2002, the petitioner received a letter from militant organization calling him not to go back till some enquiry regarding his involvement. The petitioner because of threat to his family members by militant organization, the petitioner was forced to stay at home and could not resume the duty before 19.09.2002. The petitioner sent telegram to that effect to the respondent no.3. The letter received by the petitioner from the militant organization was sent to the Commandant-7 RR, C/o 56 APO, which was sent to 22nd Bn CRPF. The respondent no.5 presented an application on 14.02.2002 under section 10(m) of Central Reserve Police Force Act, 1949 [hereinafter to be referred as the Act]. On 01.01.2003 the petitioner was directed to be arrested and produced by Sr. S.P., Anantnag, J&K. The petitioner was charged with offence of overstaying from leave under section 10(m) of the Act. The petitioner reported back on 29.01.2003 and resumed his duties in D/22 CRPF located at Garhwa and he has also explained the reason for overstaying. The petitioner was allowed to join duty. The warrant issued against the petitioner was also cancelled. On 05.06.2003 the petitioner was directed to attend the Court of respondent no.4 on 12.06.2003. The petitioner was explained the charge. The petitioner replied that he has already explained the reasons. The respondent no.4 by order dated 16.07.2003 held the petitioner guilty for overstaying under section 10(m) of the Act and sentenced him to undergo imprisonment till rising of the Court. The respondent no.3 in exercise of power under section 12(i) of the Act dismissed the petitioner from service on the ground that he has been convicted of offence of overstaying from leave. Aggrieved with this, the petitioner has moved before the High Court of Jammu & Kashmir at Srinagar in S.W.P. No.714 of 2014. The said writ petition was not entertained on the ground of territorial jurisdiction of that Court, however, the writ petition was disposed of granting liberty to the petitioner to challenge the impugned order before the appropriate jurisdictional Court. The observation was also made that the said court may consider the challenge without reference to the delay and laches as the petitioner has prosecuted his case from 2004 till the order was passed in that writ petition on 07.09.2016. Thereafter, the petitioner has filed this writ petition before this Court.

4. Mr. Sharma, the learned counsel for the petitioner assailed the impugned order on the ground that the petitioner was on leave which was granted by the competent authority. The petitioner was compelled to not join on 19.09.2002 in view of the fact that the militant organization threatened the petitioner with dire consequence. He submits that this letter was transmitted to the CRPF Commandant. He submits that calling of that letter is also requested in one of the paragraph of writ petition by this Court. He took to the Court to section 10(m) of the Act. By way of referring to this section, he submits that the procedure has been prescribed in section 10(m) of the Act which is less heinous offence and sub section(m) of that section speaks about leave without sufficient ca