Gauhati High Court
Page No.# 1/4 vs Page No.# 2/4 on 17 February, 2021
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia, Manash Ranjan Pathak
Page No.# 1/4
GAHC010090582019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/177/2019
UNION OF INDIA AND 5 ORS.
THROUGH MINISTRY OF HOME AFFAIRS, NEW DELHI.
2: THE DIRECTOR GENERAL SHASASTRA SEEMA BAL (SSB)
EAST BLOCK
V-R. K. PURAM NEW DELHI.
3: THE ASSISTANT DIRECTOR (PERS-II)
SSB BLOCK- V (EAST)
R. K. PURAM
NEW DELHI- 110066.
4: INSPECTOR GENERAL OF POLICE SECTOR HEADQUARTER
SHASASTRA SEEMA BAL (SSB)
GAUHATI FRONTIER
GAUHATI FRONTIER
GAUHATI.
5: DEPUTY INSPECTOR GENERAL
SHQ
SSE
BONGAIGAON
ASSAM.
6: THE COMMANDANT
16TH BATTALION
SSB
KOKRAJHAR
ASSAM
VERSUS
Page No.# 2/4
SUBHAS CHAND
(NO. 05038624 CT/GD), S/O- SRI K. N. YADAV, R/O- VILL.- DEVARIYA, P.O.
MHARAUDA, P.S. SORAON, DIST.- ALLAHABAD,
Advocate for the Petitioner : MRS. A GAYAN
Advocate for the Respondent : MR H TALUKDAR
BEFORE HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE MANASH RANJAN PATHAK 17.02.2021 (Sudhanshu Dhulia, CJ) Heard Ms. A. Gayan, learned CGC for the appellants. Also heard Mr. H. Talukdar, learned counsel for the respondent.
This writ appeal arises out of the order dated 26.03.2019 passed by the learned Single Judge in WP(C) No.3167/2016.
Brief facts of the case are that the respondent was a Constable in the Sashastra Seema Bal (SSB) who was sanctioned 35 days earned leave with effect from 24.05.2011 to 27.06.2011. He was supposed to report on duty on 27.06.2011/28.06.2011. He did not report for duty and thereafter he was sent rejoining notices vide ending no. 7136-38 dated 26.07.2011; 575-78 dated 12.08.2011; 8333 dated 19.08.2011; 8834 dated 29.08.2011 and 13619 dated 19.09.2011 but the Department did not receive any reply from the respondent. Court of Enquiry was constituted by the Commandant of 16th Battalion, SSB, Adabari, Assam vide order dated 19.09.2011.
We have no records. Several notices of the Court of Enquiry was issued to the respondent but in vain and as per the admission of the respondent himself was that the first time he sought extension of his leave was on 03.11.2011 after his sanctioned leave had exhausted much earlier in 2011. Consequently, Court of Enquiry which was Page No.# 3/4 instituted by the three Officers came to the conclusion which is as follows:
OPINION OF THE COURT:-
After going through the relevant documents and statements disposed by the witnesses during the enquiry, the board is of the opinion that No.050383624, CT(GD) Subhash Chandra of D-Coy is willfully overstaying from his sanctioned earned leave of 35 (Thirty give) days w.e.f. 28/06/11 to till date.
RECOMMENDATION OF THE COURT:-
After going through the records, the board of officers/officials recommends that No.050383624, CT(GD) Subhash Chandra of D-Coy is willfully absenting himself. Hence, he may be declared "DESERTER" from the Force under SSB Act and Rules, so that the stern disciplinary action can be taken against the defaulter necessary for maintaining good order and discipline of the Force. Cost of Govt. kit items and photo identity card may also be ordered to be recovered from him.
Thereafter, the Court of Enquiry vide order dated 09.10.2012, found that the petitioner/respondent was not suitable and fit to be retained in a disciplinary Force as such was his conduct in past as well. Consequently, in exercise of powers conferred under Rule 18 of SSB Rules, 2009 read with Rule 26 of SSB Rules, 2009, the petitioner/respondent was dismissed from service w.e.f. 28.06.2011.
The petitioner/respondent filed a statutory appeal against his dismissal which was also dismissed on 17.01.2013. Thereafter, the appellant filed a writ petition, being WP(C) 3167/2016, challenging the aforesaid dismissal order dated 09.10.2012 as well as the order dated 17.01.2013. The learned Single Judge came to the conclusion that procedure as prescribed under the Sashastra Seema Bal Rules, more particularly Rule 175 has not been followed as the place, time and date of enquiry was not communicated to the respondent/petitioner, and therefore, rules of natural justice have been violated as the Departmental Enquiry proceeded, in absence of the petitioner/writ appellant.
Learned counsel for the writ appellant, Mr. H. Talukdar, has however shown to Page No.# 4/4 this Court Section 75 of the Act itself, i.e. Section 74 of the Sashastra Seema Bal Act, 2007 which reads as under:
74. Inquiry into absence without leave- (1) When any person subject to this Act has been absent from duty without due authority for a period of thirty days, a court of inquiry shall, as soon as practicable, be appointed by such authority and in such manner as may be prescribed; and such court shall, on oath or affirmation administered in the prescribed manner, inquire in respect of the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or accessories; and if satisfied of the fact of such absence without due authority or other sufficient cause, the court shall declare such absence and the period thereof and the said deficiency, if any, and the commanding officer of the unit to which the person belongs or is attached, shall make a record thereof in the prescribed manner.
(2) If the person declared absent does not afterwards surrender or is not apprehended, he shall, for the purposes of this Act, be deemed to be a deserter.
Whether the aforesaid provision is applicable under the facts and circumstances of the present case where an enquiry proceeded against the Constable who had remained absent from duties is an aspect which has not been examined by the learned Single Judge as the said provision was not placed before the learned Single Judge.
In view thereof, we set aside the order dated 26.03.2019, passed in WP(C) 3167/2016 and remand the matter back to the learned Single Judge who may examine the matter inter-alia in the light of Section 74 of the Act.
JUDGE CHIEF JUSTICE Comparing Assistant