V. Narasingh, J.

1. The husband of the petitioner, Salegram Badhai, who was working as a Head Constable in CRPF assailed the finding of the court of enquiry dtd.7.5.2009 declaring him as a deserter, the order of dismissal from service dtd.20.2.2009 and order dtd. 11.2.2013 rejecting his appeal vide Annexures-7, 14 and 18 respectively in this Writ Petition filed under Article 226 & 227 of the Constitution of India.

2. As ill luck would have it during the pendency of the present Writ Petition the said Salegram Badhai passed away on 19.08.2016 and the prayer of the substitution of the present Petitioner being the wife having been allowed, she pursued the lis.

3. Heard Mrs. P. Mishra, learned counsel for the Petitioner and Mr. P.P. Behera, learned CGC for the Opposite Parties.

4. The facts germane for just adjudication of the present lis are as under:-

(A) The petitioner’s husband was recruited as CRPF Constable by the Group Centre, Bhubaneswar in the State of Odisha and he joined as such in CRPF on 22.2.1991.

(B) After completion of training in May 1991, he was transferred to the CRPF Battalion 70 at Durgapur in the State of West Bengal and thereafter as Constable to different places like State of Punjab, Uttarpradesh, Tripura, Jammu& Kashmir from the period 1992 to till 2007.

(C) It is asserted that the deceased-employee after undergoing promotional training at G.C. Bhubaneswar in the year 2003 was promoted to the rank of Head Constable (Havildar) in the year 2006-07.

(D) During the year 2007, he was transferred to Battalion 70 of establishment of Durgapur G.C. from Bhubaneswar G.C. and posted at Jammu.

(E) It is stated that since the husband of the petitioner (deceased-employee) felt unbearable stress and strain both mentally and physically, he had no other option but to opt to stay with his family at Sambalpur and accordingly on 24.11.2008, he prayed for leave but the same was not considered. For which, he was compelled to leave the unit of 38 Battalion without leave, however under intimation in the form of an application handed over to his colleague, requesting him to submit it on his behalf.

(F) Once again on 27.11.2008, he sent another intimation to the Unit Commander, after reaching Sambalpur. Though copy of such leave application could not be placed on record. It is admitted that the Commandant G/38 Battalion CRPF issued a letter on 30.11.2008 directing the deceased-employee to resume his duty.

(G) The deceased-employee responded reiterating the compelling circumstances on account of illness as well as unstable mental and physical condition and requested the authorities to allow him to stay at his home on leave for some more time.

(H) The leave application submitted by the deceased-employee was not considered following which another intimation letter was issued on 12.01.2009 directing the deceased-employee to join duty. And, in response thereof, the deceased-employee submitted further leave application on 10.02.2009 reiterating his request to stay at his home with family because of his health condition.

(I) Treating the deceased-employee to be willful deserter, pursuant to Office Order dated 27.03.2009 a Court of enquiry was held and on 07.05.2009 (Annexure-7) the deceased-employee was declared as “Deserter” with effect from 24.11.2008 i.e. from the date of his unauthorized absence, which was communicated to the deceased-

employee vide C.O. dtd.7.5.2009.

(J) Relying upon the report of Court of enquiry, the Disciplinary Authority decided to hold a departmental enquiry and accordingly as per Annexure-8, the charge sheet in the departmental proceeding was communicated to the deceased-employee. The deceased-employee could not file any reply, as a result of which, on

7.8.2009, an Enquiry Officer (E.O) was appointed. The E.O directed the deceased-employee to attend enquiry on 2.9.2009, whereas owing to illness, the deceased-employee cou