Absence ≠ Misconduct: P&H High Court Reinstates CRPF Constable, Sets Aside Dismissal for Lack of Wilful Desertion & Natural Justice
Case Name: Vivek Kumar v. Union of India & Ors.
Date of Judgment: 18 March 2026
Citation: CWP-21794-2020
Bench: Justice Sandeep Moudgil
Held: The Punjab & Haryana High Court held that mere absence from duty, without proof of wilfulness, does not constitute misconduct. Dismissal from service based on such absence, particularly in the presence of medical evidence and without effective opportunity of hearing, is arbitrary, violative of natural justice, and shockingly disproportionate.
Summary: The petitioner, a CRPF constable, challenged orders declaring him a proclaimed person/deserter and subsequently dismissing him from service. His absence from duty arose after a road accident and prolonged medical treatment, including hospitalization for a serious foot condition and later a spinal injury.
The respondents treated his absence as wilful desertion and proceeded with an ex parte departmental enquiry, culminating in dismissal from service. The petitioner contended that he had duly communicated his medical condition, including through a legal notice, and that no effective opportunity of hearing was granted.
The Court examined the scope of judicial review in service matters and reiterated that interference is permissible where findings are perverse, based on no evidence, or punishment is disproportionate. It emphasized that misconduct of “wilful absence” requires deliberate intent, and absence due to medical incapacity cannot be equated with misconduct.
The Court found that the medical evidence placed on record, including prolonged hospitalization, was neither rebutted nor meaningfully considered by the authorities. The conclusion of wilful absence was thus held to be based on presumption rather than proof.
Further, the Court analysed Rule 31 of the CRPF Rules relating to desertion and held that the distinction between desertion and absence hinges on the element of intent (animus deserendi). In the present case, the petitioner’s absence was attributable to medical exigencies and not deliberate evasion of duty.
On procedural fairness, the Court held that mere dispatch of notices does not satisfy the requirement of natural justice. The ex parte enquiry was found to be illusory, as there was no effective service ensuring participation of the petitioner.
The Court also invoked the doctrine of proportionality, observing that dismissal from service, the harshest penalty, was shockingly disproportionate in the facts of the case, especially considering the petitioner’s long service and medical circumstances.
Decision: The High Court set aside both the order declaring the petitioner as a deserter/proclaimed person dated 15.12.2018 and the dismissal order dated 25.04.2019. The petitioner was directed to be reinstated in service with continuity and all consequential benefits, including arrears of salary along with 6% interest, to be released within six weeks.