JUDGMENT Shishir Kumar, J.
1. By means of the preset writ petition the petitioner has approached this Court for issuing a writ of certiorari quashing the impugned order of dismissal dated 19.12.92, Annexure-5 to the writ petition.
2. The facts arising out of the writ petition is that the petitioner was appointed as constable and was working as constable (E) 66 Battalion, Central Reserve Police Force and was posted at Ludhiyana. On 28.4.1992 the petitioner who was in football match team was went to Durgapur Group Centre for football match. The petitioner reached Durgapur on 30.4.92. Before departing the petitioner has informed his father that he would be going to Durgapur to play football. After reaching Durgapur the petitioner's nephew who resides in Calcutta, came to Durgapur Group Centre on 3.5.92 and searched out the petitioner and told the petitioner that his father was seriously ill. On getting the aforesaid information the petitioner was totally confused and on account of the information of the illness of his father, the petitioner left with his nephew and he went to his father's place. The petitioner found that the condition of the father was very serious. The petitioner stayed at Calcutta for the medical treatment as there was nobody to look after the father of the petitioner. On account of the aforesaid reason the petitioner remained, with his father till 20.7.92 and the petitioner returned and joined at 66 Battalion on 24.7.92. The petitioner was suspended under Rule 27 of the Central Reserved Police Force Rules 1955 by the order dated 24.7.92. A charge sheet was also issued to the petitioner in which there were two articles of charges relating to desertion of the petitioner from football team on 4.5.92. A copy of the said charge sheet has been annexed by the petitioner as Annexure-1 to the writ petition. An inquiry was held against the petitioner and before the Inquiry Officer, one Jamadar Marandi gave an application to the Inquiry Officer in which he has stated that a person came at Durgapur Group Centre and told the petitioner that his father was seriously ill. He also stated that when the petitioner did not return by 4.5.92, the report about desertion was given. The petitioner also made an application on 3.11.92 in which he has pointed out the compelling circumstances in which he has to leave. Durgapur Group Centre. An Inquiry Officer was appointed and has submitted a report dated 24.11.1992. The Inquiry Officer found that the father of the petitioner was seriously ill. The Inquiry Officer has placed reliance upon a certificate of a doctor and that of counselor of Calcutta Municipal Corporation in proof of the fact of the illness and information thereof to the petitioner. The Inquiry Officer has held that the petitioner left the Group Centre in the compelling circumstances. The Inquiry Officer held that the charges are not proved. A copy of the inquiry report has been annexed as Annexure-4 to the writ petition. The petitioner submits that by an order dated 19.12.92, the commandant, 66 Battalion, Central Reserved Police Force, Ludhiyana has dismissed the services of the petitioner with effect from 19.12.92 due to the absence from 4.5.92 to 24.7.92 which had been treated as dies-non. The respondent Commandant has held that the petitioner has deserted on 4.5.92 and an information to this effect was given to the petitioner at his home address by letter dated 15.5.92 to report at Battalion Headquarter. The petitioner did not join the duties inspite of the directions and no proper medical certificate, bills and documents were submitted by the petitioner and the petitioner remained deserter for a period of 82 days. The petitioner submits that the petitioner has filed the medical certificate and has explained the circumstances for remaining absent. The respondent has not considered the finding recorded by the Inquiry Officer and has not recorded any reason for disagreeing with the finding of the Inquiry Officer, hough the Inquiry Officer has held that the petitioner left under compelling circumstances on getting the news of his father's illness.
3. It has been argued on behalf of the petitioner that the order of disciplinary authority is an order which is non-speaking and has been passed on non-application of mind. The punishment of dismissal is disproportionate to the gravity of the case against the petitioner and the punishment of dismissal is excessive. The disciplinary authority has also erred in treating the period 4.5.92 to 24.7.92 as dies-non. The petitioner further submits that the petitioner has not been given full opportunity to defence his case and to cross-examine the witnesses. It has also been submitted that it was incumbent on the part of the respondent to issue a show cause notice if the disciplinary authority was not agreeing with the report of the Inquiry Officer. As no note or reasons had been recorded by the disciplinary authority, the circumstances disagreeing with the inquiry report, the punishment which have been awarded is against the settled principles of law. The petitioner has placed reliance upon a judgment of the Apex Court reported in 1998 (7) SCC 84, Punjab National Bank and Ors v. Kuni Behari Misra and has placed reliance upon paras 11 and 12 of the said judgment which are reproduced below:
"11. The controversy in the present case, however, relates to the case where the disciplinary authority disagrees with the findings of the enquiring authority and acts under Regulation 7(2). The said sub-regulation does not specifically state that when the disciplinary authority disagrees with the findings of the enquiring authority and is required to record its own reason for such disagreement and also to record its own finding on such charge, it is required to give a hearing to the delinquent officer.
12. Shri Reddy relied on the decision of this Court in S.S. Koshal case. In that case, the disciplinary authority disagreed with the findings of the enquiry officer which was favorable to the delinquent. A question arose whether the disciplinary authority was required to give a fresh opportunity of being heard. At p. 470, a Division Bench (Coram: B.P. Jeevan Reddy and B.L. Hansaria, JJ.) while coming to the conclusion that fresh opportunity was not required observed as follows: ( SCC p. 4 70- para 6) "6. So far as the second ground is concerned, we are unable to see any substance init. No such fresh opportunity is contemplated by the regulations nor can such a requirement be deduced from the principles of natural justice. It may be remembered that the enquiry Officer's report is not binding upon the disciplinary authority and that it is open to the disciplinary authority to come its own conclusion on the charges. It is not in the nature of an appeal from the enquiry Officer to the disciplinary authority. It is one and the same proceeding. It is open to a disciplinary authority to hold the enquiry himself. It is equally open to him to appoint an enquiry Officer to conduct the enquiry and place the either record before him with or without his findings. But in either case, the final decision is to he taken by him on the basis of the material adduced. This also appears to be the view taken by one of us (B.P. Jeevan Reddy, J.) as a Judge of the Andhra Pradesh High Court in Mahendra Kumar v. Union of India. The second contention accordingly stands rejected."
Reliance was also placed on M.C. Saxena case. In this case also the disciplinary authority disagreed with the findings of the enquiry officer and after recording reasons in this regard, it held that the charges against the delinquent officer stood established. In coming to this conclusion, it was observed that while disagreeing the only requirement was that the disciplinary authority should record reasons for disagreement and it was not necessary in such a case for the delinquent government servant to be afforded a further opportunity of hearing."
4. He has further placed reliance upon para 15 of the said judgment which is also reproduced below:
" 15. It this stage, it will be appropriate to refer to the case of State of Assam v. Bimal Kumar Pandit decided by a Constitution Bench of this Court. A question arose regarding the contents of the second show-cause notice when the Government accepts, rejects, or partly accepts or partly rejects the findings of the enquiry officer. Even though that case relates to Article 311(2) before its deletion by the 42nd Amendment, the principle laid down therein, at p. 10 of the Report, when read along with the decision of this Court in Karunakar case will clearly apply here. The Court observed at SCR pp. 10-11 as follows:
"we ought, however, to add that if the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice. It may be that the report makes findings in favour of the delinquent officer, but the dismissing authority disagrees with the said findings and proceeds to issue the notice under Article 311(2). In such a case, it would obviously be necessary that the dismissing authority should expressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to be taken against the delinquent officer, Without such an express statement in the notice, it would be impossible to issue the notice at all. There may also be cases in which the enquiry report may make findings in favour of the delinquent officer on some issue sand against him on some other issues. That is precisely what has happened in the present case. If the dismissing authority accepts all the said findings in their entirety, it is another matter, but if the dismissing authority accepts the findings recorded against the delinquent officer and differs from some or all of those recorded in his favour and proceeds to specify the nature of the action proposes to be taken on its own conclusions, it would be necessary that the said conclusions should be briefly indicated in the notice. In this category of cases, the action proposed to be taken would be based not only on the findings recorded against the delinquent officer in the enquiry report, but also on the view of the dismissing authority that the other charges not held proved by the enquiring officer are, according to the dismissing authority, proved. In order to give the delinquent officer a reasonable opportunity to show cause under Article 311(2), it is essential that the conclusions provisionally reached by the dismissing authority, must, in such cases, be specified in the notice. But where the dismissing authority purports to proceed to issue the notice against the delinquent officer after accepting the enquiry report in its entirety, it cannot be said that it is essential that the dismissing authority must say that it has so accepted the report. As we have already indicated, it is desirable that even in such cases a statement to that effect should be made. But we don not think that the words used in Article 311(2) Justify the view that the failure to make such a statement amounts to contravention of Article 311(2). In dealing with this point, we must hear in mind the fact that a copy of the enquiry report had been enclosed with the notice and so, reading the notice in commonsense manner, the respondent would not have found any difficulty in realizing that the action proposed to be taken against him proceeded on the basis that the appellants had accepted the conclusions of the enquiring officer in their entirety."
5. The petitioner has submitted that in view of the aforesaid judgment if the disciplinary authority was differing from the finding recorded by the Inquiry Officer, it was necessary that a provision conclusion in that behalf should be specified in the notice. As the same has not been given, the order passed by the disciplinary authority is bad. The petitioner has further placed reliance upon the judgment of the Apex Court reported in 2003 (2) SCC 449 and has submitted that the High Court has set aside the order of dismissal. The Apex Court has held that decision in PNB's case (Supra) being directly on the point as the High Court has given an opportunity to the disciplinary authority to proceed the case in accordance with law. In these circumstances we do not find a good reason to upset the impugned order.
6. The respondents have filed a counter affidavit and it has been submitted that the petitioner while at Durgapur had deserted from the Camp on 4.5.92 without giving information to the Competent Authority and remained absent up to 23.7.92 i.e. 82 days. It has further been submitted that during the inquiry the petitioner has submitted only a certificate from Dr. B.N. Das a private practitioner which was issued on 15.11.92 while his father was under medical treatment in serious condition at Calcutta from May to July. The petitioner did not bother to submit any other medical document pertaining to his father. It has further been submitted before this Court by the respondent that the petitioner in his statement pleaded guilty during the inquiry and after going through the report of the Inquiry Officer, the disciplinary authority reached to the following conclusion:
1. The medical certificate and the letter of councilor, Calcutta municipal corporation are in consequence to after thought effect / action as both of them are dated 15.11.1992 whereas his father was recommended bed rest 4.5.1992 to 18.7.1992.
2. Besides the scrutiny of medical certificate has revealed that the same has been issued by a private practitioner that too recommending bed rest for infective hepatitis (Jaundice) and not admission. No prescription and no medical bills have been produced by the delinquent from which it is clear that the certificate was not reliable.
3. Number of Govt. Hospital are available in the metropolitan city of Calcutta. Had his father been in a very critical condition best recourse would have been to get treatment in government hospital where would have been reimbursable to him but he ignored that.
4. Letter from Councilor is of no consequence as same can be obtained if the petitioner or his own friends or relatives are in touch with the councilor.
5. He could have been contracted DIGP Calcutta or IGP ES Calcutta or any unit located in Calcutta and could have sent a message through their office if this case was genuine. But he failed to do so.
6. In Article-II of the charges framed against the petitioner and the report of Enquiry Officer regarding non-receipt of official correspondence communication it is stated that the petitioner might not have visited his home town, but it could not be believed that none of his family members delivered the official letters to hi. If the petitioner really did not have receive the questioned letter even then it was his duty to write at his own to his oc or CRPF Bn HQ as a disciplined Member of the Force, the circumstances which to his desertion. On this aspect the petitioner willingly kept quite which proves his guilty. Accordingly after proving both the charges by the disciplinary authority the petitioner has been dismissed from service w.e.f. 19.12.1992 and his desertion /absent period from 4.5.92 to 24.7.92 has been treated as dies- non vide office order No. P. VIII. 10/92-66-EC-II dated 19.12.1992 as per Central Civil Service Rules which is appropriate and justified."
7. It has further been submitted that the punishment of dismissal under Rule 27(1) of C.R.P.F. Rules 1955 is not disproportionate considering the gravity of the offence committed by the disciplined member of the force. It is also not correct that the petitioner was not given sufficient time by the Inquiry Officer to defend himself. At the first instance the petitioner has requested for 15 days time to produce defence document which was permitted by the Inquiry Officer on 28.10.1992. Again on 17.11.92 the petitioner requested further ten days' time which was also granted by the Inquiry Officer and the petitioner only on 24.11.92 has submitted his defence. A copy of the inquiry report was also provided to the petitioner on 1.12.1992 and 15 days' time was granted by the disciplinary authority to prepare defence statement, if any. The petitioner on 4.12.92 has replied that he has nothing to say and he agreed with the final report of the Inquiry Officer. The petitioner was also given full opportunity to cross-examine the prosecution witnesses and the statements were recorded in his presence. Further argument on behalf of the respondents has been raised that the writ petition be dismissed on the ground of alternative remedy as the petitioner has not availed the alternative remedy to appeal to the next higher authority i.e. D.I.G., therefore, the writ petition is liable to be dismissed.
8. On the other hand, the petitioner has further placed reliance upon a judgment reported in A.I.R. 1994 SC Page 215, Union of India v. Girirai Sharma and has submitted that as incumbent while admitting the fact that he had overstayed the period of leave and explained the circumstances in which it was inevitable for him to continue on leave as he was forced to do so on account of unexpected circumstances and as such has held that the punishment of dismissal in the circumstances is harsh since the circumstances show that it was not his intention to willfully flout the order but the circumstances forced him to do so. The petitioner has also further submitted that there is nothing on record to show that the disciplinary authority has recorded a reason, therefore by way of filing a counter affidavit something cannot be supplemented which is not on record and has placed reliance on the judgment of the Apex Court reported in A.I.R. 1978 S.C. Page 851, Mahendra Singh Gill v. Union of India.
9. I have heard the learned counsel for the petitioner and the standing counsel and have perused the record and the judgments cited on behalf of the petitioner. It is not disputed or borne out from the record that the petitioner was absent without leave from 4.5.92 to 23.7.92 without any permission. Rule 31 of the Central Reserved Police Force Rules deals regarding the desertion and absence without leave. Rule 31 is being quoted below:
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) Section 9, does not return of his own free will or is not apprehended within sixty days of the commencement the desertion, absence or overstayal 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 overstayal of leave of the offender and such other matters as may be brought before them.
(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 there by cease to belong to force. This shall, however, no bar to enlisting another man in the place of the deserter."
10. Punishment regarding desertion and absence without leave has been given in Sections 9 and 10 of the C.R.P.F. Act. Sections 9 and 10 are being reproduced below:
9. More heinous offences.- Every member of the Force who--
(a) begins, excites, causes or conspires to cause or joins in any mutiny or, being present at any mutiny, or of any intention, or conspiracy to mutiny or of any conspiracy against the State does not, without delay, give information thereof to his superior officer, or
(b) uses, or attempts to use, criminal force to, or commits an assault on, his superior officer, whether on or off duty, knowing or having reason to believe him to be such; or
(c) shamefully abandons or delivers up any post or guard which is committed to his charge, or which it is duty to defend; or
(d) directly or indirectly holds correspondence with, or assists or relieves any person in arms against the state or omits to discover immediately to his superior office any such correspondence coming to his knowledge, or who, while on active duty,
(e) disobeys the lawful command of his superior, or
(f) deserts the Force, or
(g) being a sentry, sleeps upon his post or quits it without being regularly relieved or without leave, or
(h) leaves his Commanding Officer, or his post or party, to go in search of plunder, or
(i) quits his guard, picquet, party or patrol without being regularly relieved or without leave, or
(j) uses criminal force to, or commits an assault on, any person bringing provision or other necessaries to camp or quarters, or forces a safeguard or breaks into any house or other place for plunder, or plunders, destroys or damages property of any kind, or
(k) intentionally causes or spreads a false alarm in action or in camp, garrison or quarters, or
(l) displays cowardice in the execution of his duty, shall be punishable with transportation for life for a term notless than seven years or with imprisonment for a term which may extend to fourteen years or with fine which may extend to three months pay or with fine to that extent in addition to such sentence of transportation or imprisonment.
10. Less heinous offences. - Every member of the Force who-
(a) Is in a state of intoxication when on, or after having being warned for, any duty or on parade or on the line of march, or
(b) strikes or attempts to force any sentry or
(c) being in command of a guard, picquet or patrol, refused to receive any prisoner or person duty committed to his charge, or without proper authority releases any person or prisoner placed under his charge, or negligently suffers any such pensioner or person to escape; or
(d) being under arrest or in confinement, leaves his arrest or confinement, before he is set at liberty by lawful authority, or
(e) is grossly insubordinate or insolent to his superior officer in the execution of his office, or
(f) refused to superintend or assist in the making of and field work or other work of any description ordered to be made either in quarters or in the field, or
(g) strikes or otherwise ill-uses any member of the Force subordinate to him in rank or position, or
(h) designedly or through neglect injuries or loses or fraudulently disposes of his arms, clothes, tools, equipments, ammunition or accoutrements or any such articles entrusted to him or belonging to nay other person; or
(i) malingers or feigns or produces disease or infirmity in himself, or intentionally delays his cure, or aggravates his disease or infirmity; or
(j) with intent to render himself or any other person unfit for service, voluntarily causes hurt to himself or any other person; or
(k) does not, when called upon by his superior officer so to do or upon ceasing to he a member of the force forthwith deliver up, or duly account for, all or any arms, ammunition, stores, accoutrements or other property issued or supplied to him or in his custody or possession as such member; or
(l) knowingly furnishes a false return or report of the number or state of any men under his command or charge or of any money, arms ammunition, clothing, equipments, stores or other property in his charge, whether belonging to such men or to the Government or to any member of or any person attached to the force, or who, through design or culpable neglect, omits or refused to make or send any return or report of the matters aforesaid; or
(m) absents himself without leave, or without sufficient cause overstays leave granted to him: or
11. From the perusal of the aforesaid sections, it is clear that Section 9(f) deals regarding deserts the force and the punishment for desertion is the dismissal if the person concerned does not prove that he was absent without leave and the circumstances was such that he was not in a position even to take the permission from the higher authorities before leaving the unit. Section 10(m) deals regarding absence without leave or without sufficient cause overstays leave granted to him. Being in the disciplined force, the absence without leave and desertion in the disciplined force is a very serious offence. A defence personnel if leaves the unit without any permission of his Commandant Officer, then he is liable for dismissal. The similar provision is in the Army Act also, which are Sections 30 and 39. Section 30 deals regarding the desertion and Section 39 of the Army Act deals regarding absence without leave and it has been mentioned that in case of absence without leave, a person is liable for conviction by the Court Martial and is liable to suffer imprisonment for a term which may extend to three years. The similar provision is also in the Central Reserved Police Force Act. From the record it is clear that the petitioner was absent without leave and no information to this effect has been given by the petitioner. Even the letters sent by the Commanding Officer was received by the petitioner but the petitioner has not taken care and has not reported back to the duty. The said action of the petitioner is a misconduct being defence personnel. In the defence services the disobedience of the orders of the higher authority has been treated to be a very serious offence. Though the petitioner has placed reliance upon the report of the Inquiry Officer and has submitted that the Inquiry Officer has clearly held that no doubt, the petitioner has committed an act of gross misconduct and disobedience, the offence under Section 9(f) of the C.R.P.F Act are not proved without shadow of doubt that the offence has been committed in the compelling prevalent situation, therefore, if the disciplinary authority was not agreed with the report of the Inquiry Officer, the petitioner should have been given an opportunity and a note to this effect be made by the disciplinary authority recording reasons that in what circumstances the disciplinary authority is not agreeing with the report of the Inquiry Officer. As there is no notice, the order dated 19.12.92 suffers from manifest error and a sympathetic consideration be taken.
12. I have perused the inquiry report. The inquiry Officer has given a report to this effect that the petitioner being a constable is not aware of the C.R.P.F. Act and Rules, therefore, the misconduct and disobedience under Section 9(f) is not correct. A defence personnel at the time entrance of service is aware that if he disobeys the order of the superior authorities and if he leaves the unit without permission of the superiors then he is liable to be punished being a member of the disciplined force. The similar controversy was before the Apex Court in a case reported in (1988) 2 SCC 459, Vidya Prakash v. Union of India and Ors. The Supreme Court has held that absence without leave is a serious misconduct and if a person is absent without leave and the dismissal from Army for unauthorized absence has been held by the Apex Court neither disproportionate nor illegal. Para 14 of the aforesaid judgment is reproduced below:
"14. Chapter 6 of the Army Act specifies the offences and also the punishments for such offences. Section 39(a) specifies that to be absent without leave constitutes an offence and Section 17(e) of the said Act provides dismissal from service as one of the punishments for such an offence. The appellant undoubtedly absented himself from duty without taking any leave from the lines as required under the Army Act. The appellant was charge-sheeted for the said offence and he was tried by a summary court martial convened by the Commanding Officer and after giving him due opportunity it was held that the appellant was previously punished also for the offences of absence from duty on four occasions and there was a red ink entry. Considering all this in the summary court martial proceedings he was convicted and sentenced to the punishment of dismissal from service. The sub-mission that the punishment is disproportionate to charge is wholly unsustainable. The summary court martial constituted by Major P.s. Mahant after considering the evidences has found the appellant guilty of the alleged charge and awarded the said punishment in accordance with the provisions of the Army Act. As such the said order of dismissal cannot he challenged as disproportionate to the charge or as one tainted with illegality. "
13. In view of the aforesaid circumstances, it is not disputed that the petitioner was absent without any sanction of leave and without permission of his superior officers and inspite of the letter which was sent to the home address of the petitioner, the petitioner has not reported to duty back and has admitted his guilt. The petitioner was not able to show from the document that he was not in a position even to inform the authorities and to submit an application for leave during this period. The petitioner being a member of the para military force has to maintain the discipline and it is serious misconduct, which has been proved. Therefore, in my view the order passed by the respondents dismissing the services of the petitioner is valid and no interference is called for.
14. The writ petition being devoid of merit is hereby dismissed.