Intentional unauthorized absence due to serious criminal charges can justify removal from service.

The petitioner has come forward to challenge the order of the first respondent dated 18.11.2005 and after setting aside the same seeks for a consequential direction to restore him to service.

2. The petitioner was working as a Constable in the respondent CRPF. He was attached to 12th Battalion. He has come forward to challenge the order dated 18.11.2005 wherein and by which the petitioners appeal against the order of removal was rejected. The charge against the petitioner was that he had unauthorisedly absented himself from 04.02.2003 till 24.01.2004.

3. The writ petition was admitted on 10.03.2006. On notice from this Court, the respondents have filed a counter affidavit. It was stated that the petitioner applied for earned leave with effect from 07.12.2002 to 04.02.2003. He was granted 60 days of leave. The petitioner however, did not join duty and overstayed his leave with effect from 04.02.2003. Since the petitioner did not join and overstayed his leave, a warrant of arrest was issued on 16.04.2003 for his apprehension. He was neither apprehended by the Tamil Nadu State Police nor he reported for duty in his Unit. A court of enquiry was ordered against the petitioner by the 12th Battalion by proceedings dated 24.06.2003 and on recommendation of the court of enquiry, the petitioner was declared as a Deserter from the Force with effect from 04.02.2003. As the petitioner had committed serious act of misconduct, a departmental enquiry was issued against the petitioner for unauthorisedly absented himself. The enquiry was initiated under Section 11(1) of the CRPF Act. The memorandum of charges and list of witnesses and documents were served on the petitioner on 24.09.2003. The Dy.Comdt of 12 BN was appointed as Enquiry Officer. The Enquiry Officer gave a report on 16.12.2003 and after considering the report, the second respondent removed the petitioner from service by an order dated 24.01.2004. The petitioner preferred an appeal and the same was also rejected by the appellate authority by an order dated 18.11.2005.

4. The contention of the petitioner was that his absence from 04.02.2003 till 24.01.2004 cannot be construed as unauthorised absence and it overlooks the proceedings before the criminal court in Sessions Case No.261 of 2004. The petitioner was acquitted on 27.05.2005. It was claimed by the petitioner that during the period of leave when he was in his native place, a police complaint was given against him by one Vijaya alleged that he had demanded dowry and a case was registered in Crime No.23 of 2003 on the file of the Inspector of Police, Pallikonda Police Station. The police never apprehended him. Due to the harassment by the police, it led to health problem and he was unable to report to duty. The petitioner had sent a telegram followed by letters. Notwithstanding this, he had been declared as a Deserter and in the subsequent departmental enquiry, he was removed from service.

5. But the actual case against the petitioner was on the allegation of rape of one Kalaiselvi. the petitioner was charge sheeted under Sections 376, 417 of IPC and Section 4 of the Dowry Prohibition Act. The FIR was lodged on 28.01.2003 alleging that the petitioner had committed rape on minor Kalaisevli on 18.01.2003. The said Kalaiselvi was examined by the Medical Doctors on 30.01.2003. Despite the petitioner was to report for duty on 04.02.2003 and was given a reminder on 11.02.2003, the petitioner did not report for duty. The petitioner was evading warrant for his arrest and simultaneously requesting extension of leave. A warrant of arrest against the petitioner was also issued on 16.04.2003. It is only on 20.05.2003, the petitioner was obtained an anticipatory bail from this Curt with a direction to report daily twice before the Judicial Magistrate V, Vellore. The final report in the criminal case was filed before Judicial Magistrate V, Vellore on 24.06.2003. After two years of the final report filed, the petitioner was acquit