Gauhati High Court
Anuradha Kaluwar vs The Union Of India And 3 Ors on 14 November, 2025
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/17
GAHC010120442023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3245/2023
ANURADHA KALUWAR
W/O- LATE SANJIB KALUWAR,
R/O- VILLAGE- SOCIETY,
P.O- SILAPATHAR, DIST- DHEMAJI, ASSAM, PIN-787059
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 79110
Advocate for the Petitioner : MR. B CHETRI, MR VINOD BASFOR,MRS H M PHUKAN
Page No.# 2/17
Advocate for the Respondent : DY.S.G.I., MR H GUPTA (r-1)
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
Page No.# 3/17
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
------------
Advocate for : MR. B CHETRI Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA 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, Page No.# 4/17 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, Page No.# 5/17 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 being absent without permission from any Page No.# 6/17 competent authorities as well as for non-payment of electricity bill etc. These orders have been impugned in WP(c) No 2043 of 2021 by the petitioner's late husband. Subsequently, he expired on 26.11.2021 during the pendency of the writ petition.
5] The respondents have disputed the claims of the petitioner by filing their affidavit-in-opposition and also by raising a preliminary objection. The petitioner has also reiterated her contentions by filing rejoinder affidavit in both the writ petitions. An Interlocutory Application, being IA (Civil) No. 557 of 2022, was filed in WP(C) No. 2043 of 2021, whereby the widow and two minor children of late Sanjib Kumar Kaluwar were substituted as writ petitioners in WP(C) No. 2043/2021. In that case, the widow substituted in place of late Sanjib Kumar Kaluwar was one Anu Kaluwar, aged about 29 years. However, in WP(C) No. 3245 of 2023, the petitioner, who also claims to be the widow of late Sanjib Kumar Kaluwar, is one Anuradha Kaluwar, also aged about 29 years. Learned counsel for the petitioner submits that both Anu Kaluwar and Anuradha Kaluwar are one and the same person and by oversight the name of Anuradha Kaluwar was mentioned as Anu Kaluwar in IA (Civil) No.557 of 2022 of WP(C) 2043 of 2021 and accordingly, she was substituted.
6] Heard learned counsel for the parties. The pleadings available have been perused. The records which are produced before the Court have also been Page No.# 7/17 perused.
7] The core issue before this Court is that the challenge has been made to the order passed by the Respondent authority declaring the husband of the petitioner's to be a Deserter order dated 07.09.2019 and the order of removal from service dated 14.11.2019 due to unauthorized live. Section 20 of the Indo- Tibetan Border Police (ITBP) Force Act, 1992 defines that any person who deserts or attempts to desert the service shall, on conviction by a Force Court, be punished to suffer imprisonment for a term which may extend to seven years or less and in cases of desertion on active duty or under orders of active duty be liable to suffer death or such less punishment as is in this Act mentioned. Section 21 of the Act provides for Absence without leave or overstay or leave without sufficient cause and on conviction by Force Court shall suffer imprisonment for a term which may extend to three years or less punishment under the Act.
8] There are three kinds of Force Courts which are described under Section 76 of Chapter-VII of the ITBP Act, 1992, namely, (a) General Force Courts, (b) Petty Force Courts and (c) Summary Force Courts. As per Section 77 of the ITBP Act, a General Force Court may be convened by the Central Government or the Director-General or by any officer empowered in this behalf by warrant of the Director-General. As per Section 78 of the ITBP Force Act, a Petty Force Court Page No.# 8/17 can be convened by an officer having power to convene a General Force Court or by an officer empowered in this behalf by warrant of such any officer. The composition of a General Force Court shall not be less than five officers and that of a Petty Force Court shall not be less than three officers. A Summary Force Court can be held by the commanding officer. The ITBP Force Act, 1992 has a detailed procedure as to how to convene the Courts and how to proceed in respect of Court proceedings including enquiries. Although desertion is not defined in the Act, it has to be understood that desertion will amount to deserting the force without intimating to the superior authorities. 9] It is one of the offences defined under Chapter III Section 20 of the Act. The punishments which are awardable by the Force Courts are defined under Section 51 of the Act. Under the said punishments, dismissal or removal from service is mentioned at Section 51 (1) (c) of the Act. The Act also prescribes for detention of members of the force during trial or enquiries conducted, if there is a need for such detention of such employee in view of the offenses alleged. Unlike other forces, the Act does not provide for arrest or detention because of desertion by an employee. Desertion like other offenses defined as under
Chapter III Section 20 of the Act is required to be tried by the appropriate Force Court.
10] Coming to the facts of the case, the petitioner's husband, upon Page No.# 9/17 suffering from health issues and after duly informing the higher authorities, proceeded to his home and thereafter underwent medical treatment. After an extended period of treatment in the hospital and upon being declared fit to resume his duties, the petitioner reported to the higher authorities but was not permitted to join. Subsequently, by the impugned order dated 07.09.2019, the petitioner was declared as a deserter and thereafter, by the impugned order dated 14.11.2019, the petitioner was dismissed and removed from service. 11] From the pleadings before this Court and the records presented, although the respondents claim that notices were issued to the correct address of the petitioner's husband, there is no order on record to show that these steps were actually undertaken by the authorities before he was declared a Deserter. There is a procedure prescribed under the rules to intimate the local police and secure his arrest and detention, if required. Whether such process was followed is not evident from the records. The respondents have also failed to explain why, if the address of the petitioner's husband was known to the authorities, no steps were taken to secure his presence before the Force Court prior to proceeding with the enquiry that resulted in the issuance of the desertion order. 12] From the records it is seen that by order dated 05.08.2019 the Commandant of 49th Battalion of ITB Police Force had issued a communication to the various authorities including the SHO of the Silapathar Police Station and Page No.# 10/17 DIG, ITB Police, Delhi, the Superintendent of Police, Dhemaji, the Commissioner of Police, Dhemaji, the District Collector, Dhemaji but no subsequent communication is there to show that the petitioner's husband was apprehended or an attempt was made to apprehend him from his last known address but his presence could not be secured. No such orders are placed before the Court. The proceedings against the petitioner appear to have been initiated initially on account of non deposit of an amount of Rs.1,33,205/- relating to electricity bill of the Transit Camp Likabali, ITBP, Arunachal Pradesh. In order to make necessary enquiries, he was given movement order with a direction to report at BHQ on 03.07.2019 by the In-Charge, Transit Camp, Likabali, ITBP. Although the petitioner did not report in the BHQ, 49 th Battalion of ITB Police Force, he had deposited an amount of Rs.1,20,000/- but the remaining amount of Rs.13,205/- was not deposited. A Court of enquiry was constituted to enquire into the allegations of the petitioner being a Deserter. The Court of enquiry returned a finding and he was declared a Deserter from the Force with effect from 03.07.2019 by the office order dated 07.09.2019, which is assailed in the present proceedings. Since the petitioner was found to be absent from duty without prior permission of the competent authority, which is a punishable offense under Section 21 (D) of the ITBP Act, 1992, the petitioner's husband was served a notice to appear before the authorities and file necessary Page No.# 11/17 response, failing which it will be presumed that he is not interested to serve in the organization and his retention in service will not be in the interest of the Force.
13] This was also shown to be communicated to the Directorate of Advertising and Visual Publicity, Ministry of Information Broadcasting or due publication in English local newspapers in the district of Dhemaji. However, there is no subsequent communication to show whether such publication was ultimately made. There is also no communication to show as to why the Force did not take adequate steps to apprehend the petitioner's late husband from his last known address for securing his presence before the Force Court or the authority which was conducting the enquiry.
14] Consequently, since the petitioner's husband did not appear, the respondent authorities by order dated 07.09.2019 declared the petitioner's husband as a Deserter and thereafter, he was removed from service by order dated 14.11.2019 on the ground of being absent without permission from any competent authorities.
15] The records placed before the Court do not contain any record of the proceedings undertaken by the Force Court or by the Authority which conducted the disciplinary proceedings.
16] Prima facie, there is no finding returned by the authority that the Page No.# 12/17 petitioner's husband had deserted the Force and because he refused to respond to the show-cause notice issued and/or to participate in the proceedings. In this context, it is necessary to refer to the judgment of the Apex Court rendered in Krushnakant B. Parmar vs. Union of India and Another reported in (2012) 3 SCC
178. The Apex Court in the said judgment clearly distinguished between unauthorized absence which is willful and unauthorized absence because of reasons beyond his control. The Apex Court held that if the absence (unauthorized absence) is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. The Apex Court held that unauthorized absence does not always mean willful and deliberate absence from duty. It may be for different eventualities like accident, illness, hospitalization, etc. which circumstances are beyond the control of the employee. The Apex Court returned the finding on the materials before it that the enquiry officer did not return a finding as to whether the absence was willful and deliberate or because of reasons beyond his control. In the absence of such specific findings, the Apex Court interfered with the findings against the employee therein. Relevant paragraphs of Krushnakant B. Parmar (supra) are extracted below:
"14. The Inquiry Officer noticed the aforesaid facts and held the appellant was unauthorisedly absent between 3rd October, 1995 and 7-11-1995; 9-11-1995, 10.121995 and 2-8-1995. However, while coming to such contention, the authority failed to decide whether such absence amounted to misconduct. The evidence led by the appellant in support of his claim Page No.# 13/17 that he was prevented to sign the attendance register and to perform duty though noticed the Inquiry Officer on presumption and surmises, held the charge proved.
15. Rule 3(1)(ii) and Rule 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964, relates to all time maintaining integrity, devotion to duty and to do nothing which is unbecoming of a Government servant and reads as follows:
"Rule 3 - General.
(1) Every Government servant shall at all times--
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a Government servant."
16. In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot b be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.
18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct.
19. In the present case the inquiry officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold that the absence was wilful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty.
20. The question relating to jurisdiction of the court in judicial review in d a departmental proceeding fell for consideration before this Court in M.V. Bijlani v. Union of India wherein this Court held: (SCC p. 95, para 25) "25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a e criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the Page No.# 14/17 charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He/cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
21. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the inquiry g officer of the appellate authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3-10-1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts fromSTD/PCO Office of telephone calls dated 29.09.1995 etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the inequiry officer held the appellant guilty."
The Apex Court, therefore, interfered with the findings of the authority. 17] Coming to the facts of the case, it is seen that there is neither an enquiry report available in the records nor any report placed before the Court. Even otherwise, since the petitioner's husband claims to have not been served with a copy of the notice, nor have the respondents being able to place materials to show that the notice had been duly served on the petitioner and/or that he was conscious of the proceedings initiated against him, the entire proceedings of the Force Court proceeded ex parte the petitioner. 18] This cannot be considered to be an enquiry or a proceeding by any yardstick in the eye of law. It is as if the authorities were determined to pass an order against the petitioner and conclude the proceedings by imposing the punishment. The findings of such proceedings, if are allowed to sustain, it will Page No.# 15/17 be violative of the fundamental principles of natural justice as well as the elaborate provisions regarding the procedure prescribed under the ITBP Act, 1992 read with the rules.
19] As have been discussed above, there is no explanation as to why the authorities could not secure the presence of the petitioner's husband if the version of the respondents is to be accepted that notice was duly served in the address Available in the records/Service Book of the petitioner's husband. A feeble attempt has been made by the respondents to submit that the notice was served on the petitioner's husband as it was received by his father. There is no material placed before the Court that the authorities have or the enquiring authorities/ the Force Court had returned any finding that notice was duly served as it was received by the father of the petitioner's husband and also that the petitioner's husband at that point in time was residing together with his father.
20] Under such circumstances, it cannot be concluded that the findings arrived at by the authorities declaring the petitioner's husband as a Deserter by the order dated 07.09.2019 or his removal from service by the impugned dismissal order dated 14.11.2019 can withstand the scrutiny in the eye of law and the same are therefore, required to be interfered with. It is ordered accordingly. Ordinarily, this Court would have interfered with such orders and Page No.# 16/17 remanded the same back to the authorities for proceeding afresh by issuance of appropriate orders. However, the fact remains that the petitioner's husband expired during the pendency of the writ petition filed by him being WP(C) no. 2043 of 2021 and the late petitioner/ petitioner's husband was subsequently substituted by his legal heirs comprising of his widow and two minor children. Under such circumstances, it will be futile to remand the matter back for afresh proceedings.
21] Since this Court has already come to a conclusion that the enquiry proceeded ex parte without following the rigours prescribed under the act and the rules in declaring the late petitioner as a deserter and thereafter, his dismissal and removal from service and the same having been interfered with, this Court is of the view that the impugned orders dated 07.09.2019 and 14.11.2019 having been interfered with by this Court as per the discussion above, the widow of the petitioner will now be entitled to all the financial and pensionary benefits. The period for which the petitioner's husband did not serve after overstaying his leave, he will not be entitled to his salary for that period, namely, 03.07.2019 to 13.12.2020. However, that period should also be counted for his pensionary and other service benefits which his widow now will be entitled too.
22] In view of the discussions above, it is not necessary to refer to the Page No.# 17/17 judgments pressed into service by the petitioner or the respondents. The petitions accordingly stand allowed and disposed of in terms of the above. The respondent authorities will work out the pensionary and other service benefits payable to the widow of the late husband of the petitioner within a period of 60 (sixty) days from the date of receipt of a certified copy of this order. 23] These writ petitions are accordingly allowed and disposed of. No order as to cost. The records placed before the Court are returned to learned CGC through the Court Master.
JUDGE Comparing Assistant