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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.

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.