JITENDER SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) Vide order dated 19.11.1993, Annexure P1 to the writ petition, the petitioner was dismissed from service. The legality and validity of this order is questioned by the petitioner in the present writ petition filed under Article 226 of the Constitution of India who further prays that the respondents be directed to reinstate the petitioner with full back wages and benefits. Against the impugned order, the petitioner had alsofiled an appeal to the Director General of Border Security Force which was also dismissed by an order of the Appellate Authority dated 30.11.1998, Annexure P5 to the writ petition.

(2.) The necessary facts as they, emerge from the record are that the petitioner was enrolled as a constable in the Border Security Force on 4.2.1981. The petitioner applied for leave and his leave was sanctioned for 60 days by the Commandant of 95 Battalion, Border Security Force i.e. for the period 25.5.1993 to 25.7.1993. During his leave, the petitioner fell sick and not being cured, he applied for extension of the said leave. The Commandant 95 Bn granted him extension of leave by 15 days. Since he was not fully cured he again applied for further extension of leave. However, on 23.8.1993, he was directed by the competent authority to report for duty. The petitioner intimated the Commandant that he was ill and not in a fit condition to travel and could not join on the date given. A Notice to show cause was issued to the petitioner on 1.11.1993 directing him to file a reply by 15.11.1993. Thereafter, the petitioner went to join his unit but was not allowed to rejoin his duty and was sent out of the company under the orders of the adjutant. Vide order dated 19.11.1993, the Commandant terminated the services of the petitioner by passing an order of dismissal with effect from 16.11.1993 for 'absence over leave' from 10.8.1993 to 15.11.1993. Right from the year 1993 till 1997 the petitioner claimed to have persued the matter with the Commandant for reinstatement in service, continuity of his service and for issuance of a certificate in terms of Section 12 of the Border Security Force Act, 1968 (for short 'BSF Act'). Having failed to receive any Benefits at the hands of the Commandant, the petitioner also filed a statutory appeal under Rule 28A of the BSF Rules, 1969 (for short 'The Rules') on 30.4.1998, which as already noticed, was rejected on 30.11.1998. The petitioner claims that he continued to approach the respondents even in the subsequent years and thereafter filed the present petition on 28.2.2000. The petitioner challenges the correctness of the order of dismissal dated 19.11.1993 on the following grounds:-

(3.) Rule 20 of the Rules which were amended vide notification dated 29.5.1990 reads as under:-