# Praveen Kumar Sharma (Inre 1106 S/S 2011) v. Union of India & Ors

- **Citation:** (2015) 2 ILRA 765
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-29
- **Case number:** Special Appeal No. 37 of 2015
- **Bench:** Dinesh Maheshwari, Rakesh Sirvastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/praveen-kumar-sharma-inre-1106-s-s-2011-v-union-of-india-ors-43175
- **Pages:** 6

## Headnote

High Court Rules-Chapter VII Rul-VSpecial Appeal-Central Reserve Police
Force Rules 1955-Rule-31(c)-'Deserter'-
when
declared-scope
of
disciplinary
proceeding-explained-inspite
of
full
opportunity-delinquented
employee
neither joined duty-nor participated in
disciplinary action-even on declaration of
deserter-not ceased to be member of
force-neither the authorities nor Single
Judge committed any error-to warrant
interference-special appeal dismissed.
Held: Para-12
In the present case, the respondents
have proceeded squarely in conformity
with law and even after declaring the
appellant
as
a
deserter,
adopted
disciplinary proceedings and afforded
fullest opportunity of defence to the
appellant. A look at the material on
record makes it further clear that the
appellant had not only avoided to join
the duties but also avoided to participate
in the inquiry proceedings. A suggestion
about his treatment for stammering, in
our view, remains too remote and hardly
provides
justification
for
his
not
participating in the inquiry proceedings.
The fact of the appellant having not
rejoined after expiry of period of his
leave had not been a matter of dispute.
The allegation against him of absence
from duty, even after expiry of period of
leave and without any just cause, has
been
duly
established
in
the
departmental proceedings and had been
rather of undeniable facts.

## Text

2 All] Praveen Kumar Sharma (Inre 1106 S/S 2011) Vs. Union of India & Ors.
765
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.07.2015
BEFORE
THE HON'BLE DINESH MAHESHWARI, J.
THE HON'BLE RAKESH SIRVASTAVA, J.
Special Appeal No. 37 of 2015
Praveen Kumar Sharma (Inre 1106 S/S
2011)
 ...Appellant
Versus
Union of India & Ors.
...Respondents
Counsel for the Appellant:
Amit Bose
Counsel for the Respondents:
A.S.G.
High Court Rules-Chapter VII Rul-VSpecial Appeal-Central Reserve Police
Force Rules 1955-Rule-31(c)-'Deserter'-
when
declared-scope
of
disciplinary
proceeding-explained-inspite
of
full
opportunity-delinquented
employee
neither joined duty-nor participated in
disciplinary action-even on declaration of
deserter-not ceased to be member of
force-neither the authorities nor Single
Judge committed any error-to warrant
interference-special appeal dismissed.
Held: Para-12
In the present case, the respondents
have proceeded squarely in conformity
with law and even after declaring the
appellant
as
a
deserter,
adopted
disciplinary proceedings and afforded
fullest opportunity of defence to the
appellant. A look at the material on
record makes it further clear that the
appellant had not only avoided to join
the duties but also avoided to participate
in the inquiry proceedings. A suggestion
about his treatment for stammering, in
our view, remains too remote and hardly
provides
justification
for
his
not
participating in the inquiry proceedings.
The fact of the appellant having not
rejoined after expiry of period of his
leave had not been a matter of dispute.
The allegation against him of absence
from duty, even after expiry of period of
leave and without any just cause, has
been
duly
established
in
the
departmental proceedings and had been
rather of undeniable facts.
(Delivered by Hon'ble Dinesh
Maheshwari, J.)
1. The petitioner-appellant, who was
appointed as Constable (Bigular) in the
Central Reserve Police Force ('CRPF') but
was ultimately awarded the punishment of
removal from service for absenteeism, has
preferred this intra-Court Appeal against
the order dated 7.1.2015 passed in Writ
Petition No.1106 (SS) of 2011 whereby,
the learned Single Judge has dismissed
the writ petition after finding no merit in
challenge to the orders passed in the
departmental proceedings.
2. The basic ground of challenge to
the departmental proceedings by the
petitioner-appellant had been that when
an order had already been passed
declaring him a 'deserter', the respondents
were neither justified nor authorized to
take any disciplinary action against him;
and hence, no such order of removal
could have been passed in the disciplinary
proceedings.
3. The relevant background aspects
of the matter had been as follows: The
petitioner-appellant was appointed in
CRPF
as
Constable
(Bigular)
on
16.9.2003. He applied for earned leave
that was granted for the period 12.03.2008
to 10.04.2008. However, he failed to
report on duty after expiry of the period of
sanctioned leave. It appears from the
material placed on record that the
766
 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents, under the communications
dated
18.04.2008,
20.04.2008
and
03.05.2008, asked and directed the
petitioner to report on duty at the earliest
but he failed to comply; and even an
arrest warrant issued on 23.05.2008
remained unexecuted. Ultimately, a Court
of Inquiry was ordered on 25.06.2008 and
after its report, the Commandant passed
an order on 23.05.2009 declaring the
petitioner as deserter from the service in
terms of Rule 31 (c) of the Central
Reserve Police Force Rules, 1955 ['the
Rules of 1955'] which have been framed
by the Central Government in exercise of
powers vested in it under Section 18 of
the Central Reserve Police Force Act,
1949 ['the Act of 1949']. The said order
dated 23.05.2009, while declaring the
appellant as deserter, further provided in
terms of Rule 31 ibid. that the appellant
would not cease to be the member of
Force and whenever he would report or
surrender, shall be treated to be guilty of
the offence described in Section 10 (m) of
the Act 1949 and would also be liable to
be punished under Section 11 (1) of the
said Act.
4. After having declared the
appellant as deserter, the department
issued a charge sheet to him under the
memorandum
dated
02.06.2009,
essentially on the allegation that he had
misconducted himself for not reporting on
duty after availing 30 days' earned leave
from 12.03.2008 to 10.04.2008 and thus,
he was absent from duty without any
leave or permission of the appropriate
authority w.e.f. 11.04.2008. The appellant
submitted
a
representation
dated
12.06.2009 suggesting
that
he
was
undergoing
treatment
in
Guru
Tej
Bahadur Hospital at Delhi for stammering
and had furnished Medical Certificates to
the authorities concerned; and that he was
still under treatment and would report on
being declared fit. In this communication,
the appellant also suggested his temporary
changed address at Ghaziabad.
5. In the matter of inquiry against
the appellant, the Deputy Commandant
was appointed as Enquiry Officer and it is
borne out that notices were sent even to
his suggested changed address too, but the
appellant failed to respond and failed to
participate in the enquiry. Ultimately, the
enquiry proceedings were concluded ex
parte and the Enquiry Officer submitted
his report dated 08.09.2009 finding the
appellant guilty of charge of absence
without leave and overstaying without
sufficient
cause.
Under
the
communication dated 15.10.2009, the
enquiry report was also forwarded to the
appellant by the disciplinary authority
requiring him to make representation, if
so desired, but the appellant failed to
respond. Ultimately, the Commandant,
85th Battalion, Central Reserve Police
Force,
Bijapur
(Chattisgarh),
after
considering the entire matter, awarded the
punishment of removal from service to
the
appellant
by
his
order
dated
16.11.2009. The appeal preferred by the
appellant was dismissed by the Deputy
Inspector General of Police, Central
Reserve Police Force, Lucknow Range,
Lucknow on 04.03.2010 and then, the
revision preferred by him was also
dismissed by the Director General on
24.11.2010.
6. The appellant filed the writ
petition leading to this appeal, seeking to
question the orders aforesaid. As noticed,
basically the ground of challenge by the
appellant had been that once he was
declared to be a deserter, any other
2 All] Praveen Kumar Sharma (Inre 1106 S/S 2011) Vs. Union of India & Ors.
767
disciplinary action could not have been
taken against him and order of removal
could not have been passed.
7. The learned Single Judge
surveyed the relevant provisions of the
Act of 1949 and Rules of 1955 and then,
specifically referred to Rule 31 (c)
thereof. The learned Single Judge found
the contention on the part of the appellant
being totally devoid of merit in view of
the plain and clear language of Sub-Rule
(c) of Rule 31 ibid. that even on being
declared as deserter, an absentee does not
cease to belong to the Force. The
consideration of the learned Single Judge,
which also carries reproduction of the
relevant Rule 31 of the Rules of 1955,
could be taken note of as under:-
"Section 9 of the CRPF Act provides
punishment for "more heinous offences".
Section
10
of
the
Act
provides
punishment "for less heinous offences".
Sub-Section (m) of Section 10 of the Act
provides that if a member of the Force
absents himself without leave, or without
sufficient cause over-stays leave granted
to
him,
may
be
punished
with
imprisonment for a term which may
extend to one year, or with fine which
may extend to three months' pay, or with
both. Apart from making "more heinous
offences" and "less heinous offences"
punishable, Section 11 of the CRPF Act
provides
for
minor
punishments,
according to which, any member of the
Force, if found guilty of disobedience,
neglect of duty or remissness in the
discharge of duty or he is found guilty of
other misconducts in his capacity as a
member of Force, he may be awarded
various punishments described in Section
11 of the Act in addition to or in lieu of
suspension or dismissal.
Rule 27 of the CRPF Rules contains
statutory
prescription
relating
to
procedure for award of punishment. Rule
31 of the CRPF Rules deals with
desertion and absence without leave. Rule
31 (a) of the CRPF Rules provides that if a
member of the Force is liable for trial under
Section 9(f) or Section 10 (m) or for
deserting the Force while not on active duty
then the Commandant shall assemble a
Court of Inquiry consisting of at least one
Gazetted Officer and two other members to
enquire into the desertion, absence, or
overstay of leave of the member of the
Force concerned. The Court of Inquiry is
required to record evidence and its findings.
Sub Rule (c) of Rule 31 provides that the
Commandant shall then publish in the Force
Order the findings of the Court of Inquiry
and the absentee shall be declared a deserter
from the Force from the date of his illegal
absence.
Rule 31 of the CRPF Rules is reads
as under:-
"31. Desertion and Absence without
leave:-(a) If a member of the Force who
becomes liable for trial under clause (f) of
section 9 or clause (m) of section 10 or
for deserting the Force while not on active
duty under clause (p) of section 10 read
with clause (f) of section 9, does not
return of his own free will or is not
apprehended within sixty days of the
commencement of the desertion, absence
or
overstay
of
leave,
then
the
Commandant shall assemble a Court of
Inquiry consisting of at least one Gazetted
Officer and two other members who shall
be either superior or Subordinate Officers
to inquire into the desertion, absence or
overstay of leave of the offender and such
other matters as may be brought before
them.
768
 INDIAN LAW REPORTS ALLAHABAD SERIES
(b) The Court of Inquiry shall record
evidence and its findings. The Court's
record shall be admissible in evidence in
any subsequent proceedings taken against
the absentee.
(c) The Commandant shall then
publish in the Force Order the findings of
the Court of Inquiry and the absentee
shall be declared a deserter from the
Force from the date of his illegal absence,
but he shall not thereby cease to belong to
the Force. This shall, however, not bar to
enlisting another man in the place of the
deserter."
What is relevant to notice, at this
juncture, to consider the arguments raised
by learned counsel for the petitioner in its
correct perspective, is the phrase "but he
shall not thereby cease to belong to
Force" occurring in sub Rule (c) of Rule
31 of the CRPF Rules. After publishing
the findings of the Court of Inquiry in the
Force Order, the absentee can be declared
as a deserter from the Force. If the
provisions of Rule 31 (c) of the CRPF
Rules are read appropriately, it would
mean that such a declaration of a member
of the Force as a deserter will not result in
automatic cessation of his membership of
the Force. This is amply clear from a bare
reading of the provisions contained in
Rule 31(c) of the Rules. In my considered
opinion, no other meaning can be
assigned to the aforesaid provisions of
Rule 31(c) of the Rules and hence, the
submission made by the learned counsel
for the petitioner that once a member of
the force is declared to be a deserter, he
ceases to be a member of the Force and
thus,
any
disciplinary
proceedings
resulting in his removal cannot be
undertaken,
merits
rejection.
The
provision contained in Rule 31(c) of the
Rules are more than explicit, according to
which, mere declaration of a member of
the Force as a deserter would not
resultantly amount to depanelling him
from the Force, so as to make him
immune
from
being
subjected
to
disciplinary action or enquiry if he is
charged of some misconduct which is
otherwise punishable."
8. Seeking to question the order so
passed by the learned Single Judge, the
basic contention on behalf of the appellant
is that when he had been declared to be a
deserter by the order dated 23.5.2009, no
departmental proceedings were permissible
against him on the very same charge of
absence from duty. It is submitted that on a
true interpretation, the meaning and effect
of Rule 31 of the Rules of 1995 could not
be that a declared deserter would be deemed
to be a member of Force only for the
purpose of passing of a formal order of
dismissal or removal from service on the
basis of a departmental enquiry, which
would be nothing but farce. It is submitted
that a member of Force, when being
declared as deserter, could not be continued
as a Member only for the purpose of formal
departmental enquiry and for all practical
purposes, his removal is complete once he
is declared to be a deserter; and such
declaration virtually amounts to cessation of
his membership of the Force. It is also
submitted that the appellant could not have
been charged with the offence of or act of
misconduct of absence from duty once he
had been declared as deserter and at the
most, he could have been charged of the act
of desertion.
9.

Having
given
thoughtful
consideration to the submissions made
and having examined the record, we find
the case of the appellant totally bereft of
substance.
2 All] Praveen Kumar Sharma (Inre 1106 S/S 2011) Vs. Union of India & Ors.
769
10. The referred Rule 31 of the
Rules of 1955 is reproduced in the
passage quoted hereinabove. It is evident
that this particular provision has been
made looking to the peculiar nature of the
service, i.e., the Central Reserve Police
Force and in relation to the particular
nature absentees, for the purpose of
assembling the Court of Inquiry to
examine the questions of desertion,
absence and overstay and to declare the
absentee as deserter. The declaration that
a particular enlisted person has deserted
need to be put on record and to be
published so as to inform all the
concerned; and then, the Rule enables
enlisting of another person in place of the
deserter
so
that
the
depletion
of
manpower in the Force could be balanced.
However,
it
has
consciously
been
provided in the said Rule that irrespective
of such declaration, the deserter would
not cease to belong to Force; meaning
thereby that merely by way of absence, a
member of the Force cannot escape all
other responsibilities and liabilities, which
include his liability to be put to trial for
the offence of desertion as also the
liability to be subjected to disciplinary
proceedings for the delinquency related
with absenteeism.
11. The suggestion that once a
person is declared to be a deserter, he
could not be subjected to disciplinary
proceedings remains baseless and rather
stands squarely at contradiction to the true
meaning, intent, purport and effect of the
Rules of 1955. The proceedings for
declaring a person as deserter are entirely
different and are meant for achieving
different purpose; and they cannot be
taken
to
be
of
substitute
of
the
disciplinary
proceedings,
meant
for
awarding appropriate punishment for
delinquency.
12. In the present case, the
respondents have proceeded squarely in
conformity with law and even after
declaring the appellant as a deserter,
adopted disciplinary proceedings and
afforded fullest opportunity of defence to
the appellant. A look at the material on
record makes it further clear that the
appellant had not only avoided to join the
duties but also avoided to participate in
the inquiry proceedings. A suggestion
about his treatment for stammering, in our
view, remains too remote and hardly
provides
justification
for
his
not
participating in the inquiry proceedings.
The fact of the appellant having not
rejoined after expiry of period of his leave
had not been a matter of dispute. The
allegation against him of absence from
duty, even after expiry of period of leave
and without any just cause, has been duly
established
in
the
departmental
proceedings and had been rather of
undeniable facts.
13.

In
the
totality
of
the
circumstances,
it
appears
that
the
respondents have taken a rather liberal
view of the matter and have only awarded
the appellant punishment of removal from
service, although in such
matters of
absenteeism, the punishment of dismissal
from service may be awarded. In any
case, we are clearly of the view that the
respondents
have
rightly
adopted
disciplinary
proceedings
against
the
appellant; and the orders as passed against
him call for no interference.
14. The learned Single Judge, in our
view, has not committed any error in
770
 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissing the baseless writ petition filed
by the appellant.
15. Consequently, this Appeal
stands dismissed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.07.2015
BEFORE
THE HON'BLE DINESH MAHESHWARI, J.
HON'BLE RAKESH SRIVASTAVA, J.
Special Appeal No. 106 of 2015
Vikas Chandra Srivastava 666(S/S) 2015
 ...Appellant
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Appellant:
Arvind Kumar
Counsel for the Respondents:
C.S.C.
High Court Rules-Chapter VIII Rule-5Special
Appeal-against
judgment
of
Single
Judge-as
direction
of
State
Government to file Civil Suit-for loss of
8.83 Lakhs-even after retirement-writ
petition not maintainable being mere
communication-held justified-warrantsno interference-Appeal dismissed.
Held: Para-17
In the present case, as noticed, the
departmental
proceedings
stood
annulled with the order of the learned
Single Judge dated 08.01.2010 in Writ
Petition No. 1127 (SS) of 2007. There are
allegations of misfeasance against the
appellant; and the respondents assert
that by his acts and omissions, the
appellant caused loss to the Government
that was
required to be recovered.
Though,
in
these
proceedings,
no
comments are being made finally on the
merits of the claim of the respondents,
but in the totality of circumstances, we
are clearly of the view that an action in
the writ jurisdiction, so as to even
prevent filing of a Civil Suit, was not to
be entertained; and the learned Single
Judge cannot be faulted in finding the
writ petition to be entirely misconceived.
(Delivered by Hon'ble Dinesh Maheshwari, J.)
1. By way of this intra-Court
Appeal, the petitioner-appellant seeks to
challenge the order dated 9.3.2015 passed
in Writ Petition No.666 (SS) of 2015
whereby, the learned Single Judge has
declined to exercise writ jurisdiction
under Article 226 of the Constitution of
India in the appellant's challenge to the
communications dated 09.09.2013 and
16.09.2013, by which, the concerned
authorities were directed to file a Civil
Suit for recovery of the amount of loss
said to have been caused by the appellant
to the Government.
2. Put in a nutshell, the basic
submissions of the petitioner-appellant in
the writ petition had been that no such
Civil Suit was maintainable against him
and hence, the orders issued for filing of
the suit suffered from want of authority of
law; and further, for having been issued
without opportunity of hearing, called for
interference in the writ jurisdiction. The
learned Single Judge, however, found the
writ petition to be rather misconceived
with the observations that the question of
maintainability of the suit was to be
examined by the trial Court, where the
petitioner-appellant
could
file
his
objections. The learned Single Judge,
therefore, dismissed the writ petition with
a short order that reads as under:-
"Supplementary affidavit filed in
court, today, be placed on record.