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2025 Supreme(Online)(Gau) 11339

HIGH COURT OF GAUHATI
Soumitra Saikia, J
Anuradha Kaluwar – Appellant
Versus
Union of India – Respondent
WP(C)/3245/2023|WP(C)/2043/2021

Advocates:
For the Appellants/Petitioners: B Chetri, Vinod Basfor, H M Phukan
For the Respondents: Dy.S.G.I., H Gupta

An order of dismissal for desertion or unauthorized absence is unsustainable if the authority fails to prove 'willful' absence, especially when the employee provides evidence of compelling circumstances like medical illness, and the disciplinary enquiry fails to adhere to the principles of natural justice and proper service of notice.

Headnote:(A) Indo-Tibetan Border Police Force Act, 1992 - Sections 20, 21, 51, 76, 77, 78 - Dismissal and Declaration of Deserter status - Unauthorized absence - Principles of natural justice - Evidence of 'willful' absence - Absence due to health reasons - Petitioner's husband was declared a deserter and removed from service ex parte for unauthorized absence while suffering from medical conditions - No evidence on record indicated service of notice or proper enquiry - Apex Court precedent (Krushnakant B. Parmar) establishes that unauthorized absence must be proved as 'willful' and deliberate; absence due to medical emergencies cannot be equated to misconduct or desertion - Court held that disciplinary proceedings were conducted without adherence to statutory procedure or natural justice, rendering them void. (Paras 16-18, 20)

Facts of the case:
The petitioner, acting on behalf of her deceased husband, challenged orders declaring her husband a deserter on 07.09.2019 and removing him from service on 14.11.2019. The deceased had informed authorities of his absence due to severe health issues (jaundice, later psychiatric treatment) but was dismissed ex parte after the force failed to properly secure his participation or serve notice adequately.

Findings of Court:
The court found that the disciplinary proceedings were procedurally flawed, lacked evidence of willful desertion, and violated natural justice. The impugned orders were set aside.

Issues: Whether the absence of the petitioner's husband amounted to wilful desertion; whether the disciplinary enquiry was conducted in accordance with the principles of natural justice.

Ratio Decidendi: An order of dismissal based on unauthorized absence cannot be sustained if the disciplinary authority fails to establish that the absence was willful and deliberate, particularly when the employee provides evidence of compelling medical circumstances, and where the enquiry is conducted ex parte without proper service of notice.

Result: Petitions allowed.

Linked Case : WP(C)/2043/2021

ON THE DEATH OF SANJIB KUMAR KALUWAR

HIS LEGAL HEIRS MRS. ANU KALUWAR AND ORS. REP.

S/O DILIP KUMAR KALUWAR

R/O VILL. SOCIETY

P.O. SILAPATHAR

DIST. DHEMAJI

ASSAM

PIN 787059

1.1: ANU KALUWAR

W/O. LATE SANJIB KUMAR KALUWAR

VILL. SOCIETY

P.O. SILAPATHAR

DIST. DHEMAJI

ASSAM

PIN-787059.

1.2: HIMANGU KALUWAR

S/O. LATE SANJIB KUMAR KALUWAR

VILL. SOCIETY

P.O. SILAPATHAR

DIST. DHEMAJI

ASSAM

PIN-787059.

1.3: SIDDARTHA KALUWAR

S/O. LATE SANJIB KUMAR KALUWAR

VILL. SOCIETY

P.O. SILAPATHAR

DIST. DHEMAJI

ASSAM

PIN-787059.

APPLICANT NOS. 2 AND 3 ARE THE MINOR AS SUCH THEY ARE REPRESENTED BY THEIR MOTHER MRS. ANU KALUWAR (APPLICANT NO. 1)

VERSUS

THE UNION OF INDIA AND 3 ORS

REPRESENTED BY THE SECY. GOVT. OF INDIA

HOME DEPTT.

NEW DELHI 110001

2:THE DIRECTOR GENERAL OF ITBP

CGO COMPLEX

LODHI ROAD

NEW DELHI 110003

3:THE INSPECTOR GENERAL

ITBP

NORTH EAST FRONTIER

ITANAGAR 791111

DIST. PAPUMPARE

ARUNACHAL PRADESH.

4:THE COMMANDANT

49 BN. ITBP

BASAR

DIST LEPA RADA

ARUNACHAL PRDESH

PIN 791101

Date of hearing : 07.08.2025

Date of Judgment : 14.11.2025

Judgment and Order (CAV)

Heard Mr. B. Chetri, learned counsel for the petitioner and Mr. H Gupta, learned CGC for the respondents.

2] WP(C) No.2043 of 2021 was filed by the petitioner, namely, Sanjib Kumar Kaluwar to set aside the order dated 07.09.2019 by which he was declared as a Deserter and the order dated 14.11.2019 by which he was removed from service. Subsequently, he expired on 26.11.2021 during the pendency of the writ petition and thereafter, the widow of late Sanjib Kaluwar, namely, Anu Kaluwar was substituted as a petitioner in WP(C) No.2043 of 2021 in place of the deceased petitioner. WP(C) No. 3245/2023 has been filed by the widow of late Sanjib Kaluwar praying for family pension, arrear salary with effect from 03.07.2019 and death-cum-retirement benefits and other allowances as admissible under law, if required, by setting aside the impugned illegal deserter order dated 07.09.2019 and removal from service dated 14.11.2019 which orders are impugned in WP(C) No. 2043 of 2021. Further prayer in this petition is for a direction to the respondents to provide prospective financial the benefits to the widow petitioner for her husband's promotion to the post of Havildar which was due on 24.12.2020. On these prayers, these two petitions have been filed seeking directions from this Court.

3] The petitioner’s late husband, namely, Sanjib Kumar Kaluwar initially appointed in the rank of CT/GD vide Force No.070281603 on 09.07.2007 in the Indo-Tibetan Border Police Force as Constable and was posted in Patiala, Punjab. Subsequently, he was posted at 49 Battalion at Basar in Arunachal Pradesh. In the year 2019 the petitioner was entrusted with the duty of Liaison Officer at ITBP Transit Camp, Likabali, Arunachal Pradesh. On 29.06.2019 the petitioner's late husband suffered from abdominal pain and on 03.07.2019 because of his discomfort and pain suffered he returned home informing his authority. He was treated by a doctor on 05.07.2019 at Dhemaji Civil Hospital and was found to be suffering from acute jaundice. The concerned doctor by medical advice dated 03.10.2019 and 24.12.2019 advised the late husband of the petitioner to take complete rest and with continuation of medicines. This fact was intimated to the authorities by the husband of the petitioner. Subsequently, he started suffering from Insomnia, Amnesia etc, and he was referred to and treated in the Neuro Psychiatry Department of the Assam Medical College & Hospital at Dibrugarh on 02.01.2020, who prescribed medicines and the petitioner’s husband was advised to take bed rest. He was continuously under treatment and advice of the doctor till 13.12.2020.

4] After his recovery from his ailments, the petitioner’s husband approached the authority but he was not given any response. Subsequently, he was declared as a deserter by the respondent authorities by order dated 07.09.2019 and thereafter, he was removed from service by order dated 14.11.2019 on the ground of

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2025 Supreme(Online)(Gau) 11339

HIGH COURT OF GAUHATISoumitra Saikia, JAnuradha Kaluwar – AppellantVersusUnion of India – RespondentWP(C)/3245/2023|WP(C)/2043/2021

Cases Referred (1)

HIGH COURT OF GAUHATI
Soumitra Saikia, J
Anuradha Kaluwar – Appellant
Versus
Union of India – Respondent
WP(C)/3245/2023|WP(C)/2043/2021