REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.   2829         OF 2009 (Arising out of SLP (C) no. 11488 of 2007)

Union of India & Ors.    ...Appellants

Versus

G. Annadurai …Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to  the order passed by a Division Bench of the Guwahati  

High Court allowing the writ appeal filed by the respondent questioning correctness of the order  

passed by learned Single Judge of the High Court.   A writ petition was filed assailing the order  

dated 27.5.1998 passed by the appellants herein directing his dismissal. At the relevant point of  

time, the respondent was serving as a constable in the CRPF and was posted in Golaghat in the  

State of Assam. On 26.7.1997 First Information Report (in short the ‘FIR’) was lodged before the  

Officer in charge  of  Golaghat  Police Station  alleging commission of  offence punishable under  

Section 379 of the Indian Penal Code, 1860 (in short the ‘IPC’).  P.S. Case No. 257 of 1997 was  

registered.  The respondent was arrested in connection with the case and was released on bail on  

14.8.1997.  An enquiry was conducted  by CRPF Authorities.  The Superintendent  of  Police by  

communication dated 27.8.1997 informed the concerned authorities of CRPF that  appellant had  

been released on bail on 14.8.1997.   As the  respondent  did not  join duty even after  lapse of

sufficient time, after lapse of sufficient time after his release on bail, a court of enquiry was held and  

the respondent was declared as the deserter with effect from 14.8.1997 by order dated 19.12.1997.  

Thereafter  a  departmental  enquiry was conducted  under  Section 11(1)  of the  Central  Reserve  

Police Fore Act, 1949 (in short the ‘Act’) read with Rule 27 of the Rules framed thereunder.  A  

memo of charges dated 23.12.1997 was drawn up, the charge memo was sent to the respondent by  

registered post at his home address.  The respondent did not respond to the charges leveled and the  

charge memo was sent back undelivered. An enquiry officer was appointed and after issuance of  

notice to  the respondent  to  appear  before him on 26.1.1998 along with his written statement,  

reminder was sent to him on 10.2.1998.  As the respondent did not respond to the notices issued,  

an order was passed ex parte. Thereafter in course of the enquiry statement of four witnesses was  

recorded and several documents were proved. Copies of the statements of the witnesses examined  

and documents exhibited were sent to the respondent by registered post asking him to submit his  

written statement for defence or appear before the enquiry officer.  This was done on 6.3.1998.  

Again there was no compliance of the order.   Enquiry was concluded and it was held that  the  

charges were proved.  The report of enquiry was communicated to the disciplinary authority to be  

forwarded. A copy of the same was sent to the present respondent at his home address.  As no  

response was received within the time stipulated,  the disciplinary authority concurred  with the  

findings of the enquiry officer and imposed punishment of dismissal from service.  Stand taken in  

the writ petition was that the writ petitioner was not aware of the disciplinary proceedings initiated.  

Stand was refuted by the respondents in the writ petition.  A learned Single Judge of the High  

Court on considering the report  of the enquiry officer and the order of the disciplinary authority  

came to hold that the writ petition was without merit.  It was held that after an elaborate decision  

apart from the court of enquiry where the respondent was declared as deserter, in the disciplinary  

proceeding the decision was taken in respect of a distinct charge.  That being so it was held that  

there was no merit in the writ petition. Accordingly it was dismissed.  The order was assailed in the  

writ  appeal  which  has  been  allowed  by  the  impugned  judgment.

3. The  High  Court  found  that  there  was  not  sufficient  material  to  show  that  the  

statement/notices were served.  It was noted that the postal endorsements were to the effect ‘not  

found’ and therefore the safeguards provided have not been observed. Accordingly the writ appeal  

was allowed and the order of the District Court was upheld.

4. Learned counsel for the appellant submitted as follows;

(i) Firstly  it  is apparent  from the  facts  of  this  case  that  the  respondent  who  was an  

employee of the CRPF, a disciplined force,  has continued to  be remained absent from 14.8.97.  

When he did not report to his Unit a warrant of arrest was issued on 30.8.97 which was addressed  

both  to  his home address  in Tamilnadu and to  his place of  posting at  Golaghat,  Assam, but  

remained unexecuted. The respondent was declared a deserter on 19.12,97. He never reported for  

duty since then, thus in these circumstances the respondent did not deserve any relief in the exercise  

of equitable jurisdiction by the High Court under Art. 226 & 227 of the Constitution of India,

(ii) The facts further show that the following efforts were made to serve him during the course  

of the departmental proceedings

(a) The Memorandum of charges was sent to  him by Regd. Post at  his home address in  

Tamilnadu.

(b)   On initiation of inquiry two notices dated 26.1.98 and 10.2.98 were again sent to him by Regd.  

Post at his home address in Tamilnadu.

(c) On conclusion of the inquiry ex-parte statements of witnesses recorded were again sent  

to him by Regd. Post on his home address on 3.3.98 and 6.3.98.However, he neither filed any reply  

nor appeared before the Inquiry Officer.

(d) The inquiry report was also sent to him at his home address. The Division Bench found  

that the same was served upon him which is clear from the following observations;

"As the records reveal by communication dated 25.03.1998,  issued by the Commandant of the  

concerned Battalion, a copy of the inquiry officer's report had been forwarded to the appellant al  

his home address in Tamilnadu. The records disclose that the same was served on him there. The  

order  of  dismissal was  passed  thereafter  on  27.05.1998.  Inspite  of  this  he  failed  to  file any  

reply/representation in response to the same.  

(e) It  maybe  mentioned  that  even  before  this  court

respondent did not put in his appearance.

5. It is pointed out that decision in Union of India & Ors. v. Dinanath Shantaram Karekar  

& Ors. [1998 (7) SCC 569] on which High Court has placed reliance has no application to the facts  

of the present case.

6. It  is pointed out  that  on conclusion of enquiry show cause notice was served by a  

publication in the newspaper and all possible efforts have been taken.  Ample opportunity have  

been granted to the respondent which he failed to avail.  It is, therefore, submitted that the decision  

in Dinanath’s case (supra) is not applicable to the facts of the case.  

7.  There is no appearance on behalf of the respondent when the matter is called in spite of  

service of notice.

8. The factual scenario shows that ample opportunities have been given to the respondent  

in order to  enable him to  effectively participate in the proceeding.  He has failed to  avail those  

opportunities.  That being so the Division bench of the High Court ought not to have interfered  

with the order of learned Single Judge which according to us is irreversible.  

9. The appeal is therefore allowed and the impugned judgment is set aside.

……..…………………….………J. (Dr. ARIJIT PASAYAT)

…………………………….……..J. (ASOK KUMAR GANGULY)

New Delhi, April 27, 2009