Shri.Anupam Roy v. The Union Of India And ORS.

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] *** WPCT/39/2024 Shri. Anupam Roy Vs The Union of India and others Mr. Lokesh Chezian N ... for the petitioner Mr. Rakesh Kumar ... for the respondent November 4, 2025 [AKB] Item No.3 The petitioner has challenged an order dated 7th July, 2023 passed in OA No. 351/0057/2023. By the order impugned, the learned Tribunal rejected the petitioner's application, thereby finding that there was no infirmity in the orders passed by the police department dated July 20, 2021 and March 20, 2022. The petitioner was declared as a deserter and accordingly was dismissed from service on account of prolonged unauthorized absence, not only from work, but also from his place of posting.

The petitioner prayed for the following reliefs in the original application:- "a) An Order be passed directing the Director General of Police, A&N Islands to accept the resignation of the applicant by setting aside the impugned final desertion order dated 20.03.2022 issued by the Director General of Police, A&N Islands. b) An order be passed directing the respondent authorities to release all the service benefits of the applicant due to the department.

c) Any other/further order as the Hon'ble Tribunal may deem fit and proper."

The learned tribunal discussed the factual background which led to the passing of the order by the authorities. The petitioner was an ASI (Comn.) under the Andaman & Nicobar

Police Radio Organization. He was posted at PR Teressa and temporarily transferred to PR Makachua for 30 days by an order dated March 26, 2020. He was relieved from Teressa for Makachua on July 28, 2020. Meanwhile, the temporary station was modified to Afra Bay instead of Mackchua. On the way to Afra Bay, the petitioner was stranded at Campbell Bay and he was temporarily attached to PR Campbell Bay. On October 21, 2020, the petitioner was referred to the G.B. Pant Hospital, Port Blair for health reasons. He left Campbell Bay for Port Blair on October 27, 2020. Upon reaching Port Blair, the petitioner submitted his resignation. A show cause notice was issued on April 01, 2021, for unauthorized absence and he was directed to report to duty within seven (07) days. He did not report for duty and he was declared as deserter under Rule 6.

16 (a) of the Andaman & Nicobar Police Manual, 1963. His name was struck off from the roll. The order of dismissal and desertion was confirmed by the respondent on March 20, 2022. Aggrieved by the said order of dismissal, the petitioner filed the original application.

Mr. Lokesh Chezian, learned Advocate for the petitioner submits that the petitioner was found to be severely unwell and suffering from chest pain owing COVID infection. He was referred to G.B. Pant Hospital by the medical officer, to get treated at Port Blair. Accordingly, the petitioner arrived at Port Blair and fell severely sick, which led to his resignation on November 2, 2020. The petitioner could not be treated as absent from duty, in view of the fact that the medical officer at

Campbell Bay had found the petitioner to be unwell and referred the petitioner to Port Blair for treatment. The resignation was a fall out of the petitioner's failing health and as such his absence from duty were on medical grounds and not desertion. It is further contended that the Rule 6.16 (a) of the Andaman & Nicobar Police Manual, permits the petitioner to resign without two months notice, upon making payment of two months salary. The petitioner had completed seven years of service and as such, there was no bar on the part of the respondents in accepting his resignation. The resignation was deemed to be effective from the day it was tendered. Moreover, had the department not accepted the resignation, they should have informed the petitioner, in that event the petitioner would have reported for work.

The learned Tribunal found that the police department had relieved the petitioner from PR Teressa. He was accommodated at PR Campbell bay, even though he was supposed to join Afra Bay. He was referred to the G.B. Pant Hospital at Port Blair on October, 21, 2020 for treatment. However, without informing the authorities, the petitioner left Campbell Bay on October 27, 2020 and submitted his resignation from Port Blair, on November 02, 2020. Although, he was not formerly relieved from Campbell Bay as per the rules he left Campbell Bay without any information. Thus, he was treated to be unautorizedly absent from the day he left Cambpell Bay on his own.

Mr.

Chezian relies on the medical reports and prescriptions to substantiate the petitioner's illness and the fact that the petitioner was not in a position to go back to work. We do not find that there is any reference to any immediate health crisis in any of those reports and prescriptions. The letter of resignation states that due to deteriorating health condition and the need to be with his parents, the petitioner willingly resigned from the post of Police Radio Operator, Andaman & Nicobar Police Radio Organization. We also find that the authorities did not treat the period prior to resignation as desertion, although the petitioner did not adhere to the discipline required in the organization. Steps were not taken against him, for his inability to join either Makachua or Afra Bay.

A show cause notice was issued on April 1, 2021, asking the petitioner to show cause as to why suitable action should not be taken against him for his unauthorized absence. The department was of the opinion that a member of the uniformed force could not wilfully be absent from duty and such absence displayed negligence and a careless approach towards the service. Rule 6.16 (b) of the Andaman & Nicobar Police Manual was referred to, which provided that a police officer who intended to resign should give notice to that effect in writing and he would not ordinarily be permitted to withdraw himself from duty until two months had lapsed from the date on which his resignation was tendered. If however, the reasons given for resignation were pressing, the officer empowered to accept the resignation could waive the period of two months, either in part

or in whole, requiring the officer to credit to the government, in lieu of the notice, a sum equivalent to the pay he would have drawn during the period of notice waived. Thus, the Rules did not relieve the petitioner from attending his work place until his resignation was accepted. In the event of pressing needs, his resignation would be immediately accepted without requiring him to work for the notice period, but upon payment of two months pay.

In this case, we do not find that either in the explanation to the show cause or in the resignation letter, any pressing medical emergency had been mentioned.

Unauthorized absence of the petitioner for 21 days was established and the petitioner was declared as a deserter under Rule 6. 19 (a) of the Andaman & Nicobar Police Manual, by a letter dated July 20, 2021. The petitioner was asked to appear before the Superintendent of Police (COMRN), which was an opportunity to explain why he should not be reinstated. This was done before the declaration as a deserter was confirmed. Mr. Chezian further submits that the resignation was kept pending on account of a criminal proceeding. However, the petitioner was acquitted from the proceeding prior to his resignation. The reason for keeping request for resignation pending was wrong. Such aspect should have been looked into. In our opinion, the petitioner could have joined his duty and raised his issues when he was given an opportunity to do so, but he did not. Thus, this fact is a non issue at the moment.

The petitioner was given a further opportunity to appear before the Superintendent of Police with his explanation for reinstatement, if any, within 15 days from the date of communication of the order declaring him as a deserter. Before the order was made absolute and his name would be finally removed from the rolls, the petitioner was given an opportunity. The petitioner did not avail of such opportunity and by a letter dated August 03, 2021, he informed the department that, as he resigned, the question of reinstatement did not arise. We find that opportunity was given to the petitioner not only explain the reasons for his absence, but also join. After he was declared a deserter, he was given a further chance to submit an explanation as to whether he would like to be reinstated, failing which the desertion order would be made final.

Considering the petitioner's reply, the desertion order was confirmed. We find that the letter of resignation does not talk about immediate medical hardship or any pressing need for being relieved from service. Secondly, the petitioner did not pray for waiver of the two months notice, upon payment. The show cause notice which was given on April 01, 2021, indicated that the resignation could not be accepted and by the said notice the petitioner was asked to report for duty within seven (07) days, with a valid explanation for his unauthorized absence. The petitioner failed to report for duty even thereafter. The department had no other option, but to issue the desertion order and confirm the same. In view of the approach and

attitude of the petitioner, who had violated all the rules attached to a disciplined force, he suffered the order of dismissal. Judicial review of an order passed by an employer under the service rules, is permissible in the event there is any procedural irregularity or the order is passed without granting an opportunity of being heard, or the employee is not allowed to adduce evidence or if the order suffers from patent illegality. In this case, the factual background narrated hereinabove permitted the department to proceed under the relevant rules and declare the petitioner as a deserter. We find that several opportunities were given to the petitioner to join. Even when the show cause notice was issued for the first time proposing to declare him as a deserter, he was asked to report for duty within seven (07) days, which he did not.

After not having availed of these multiple opportunities to go back to work, the petitioner cannot challenge the action that was taken as per law. The learned Tribunal considered the rules in detail and came to the finding that there was nothing erroneous in the way the petitioner was treated.

Under such circumstances, we do not wish to exercise our power of judicial review and we uphold the order of the learned Tribunal. However, we make it clear that the fact that the petitioner was declared as deserter, will not affect his chances of future employment in other private organizations. (Shampa Sarkar, J.) (Ananya Bandyopadhyay, J.)