RAM CHANDER Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was enrolled as a Washerman in the Border Security Force on 19.2.1990. After training, he was posted to 161 Battalion of the Border Security Force (hereinafter referred to as 'the Force'). He had put in 8 years of service in the said battalion whereafter he was posted to 42 Battalion of BSF at Bikaner in June 1997. On 6.12.2001, the petitioner received an information that his father had expired, thus, he requested for one month's leave for performing the rituals connected with the death of his father. But the respondent only granted him 15 days leave and on 10.12.2001, he left from Abhore in Punjab to his home town. The petitioner was the only working member of the family and he had to per force overstay the leave and the petitioner joined the Unit on 2.1.2002 after overstaying his leave by 8 days. The petitioner accepted his guilt and prayed for mercy and regularisation of 8 days extra leave. On 26.3.2002, the petitioner was returning from leave when he was pick-pocketed in the train where his identity card was taken away at Bhadra Railway Station. The petitioner got down from the train and lodged an FIR on the said date. The Commandant of 42 Battalion, BSF ordered a Court of Inquiry to investigate the loss of the identity card. However, on the same day the petitioner was called in the Office of the Commandant and was threatened by him and told that he should put up his papers to go on discharge. In spite of the refusal of the petitioner, he was forced to sign on a blank paper on the same day and was discharged from service. His discharge was a shock to him as it was in furtherance to the blank papers being got signed from him by the Officers. The petitioner made his best efforts to get reinstatement with different authorities of the respondent, but of no consequence. Finally on 10.8.2004, the petitioner gave a legal notice to the respondents through his counsel which was not even responded to by the said respondents resulting in filing of the present writ petition. Thus, under this writ petition under Article 226 of the Constitution of India the petitioner prays for quashing of the order dated 26.3.2002 as being illegal and arbitrary. He further prays that he should be reinstated into the service with all benefits.

(2.) According to the respondents, the petitioner had not approached the Court with clean hands and has filed the writ petition on incorrect averments. Besides that, the petition also suffers from the defect of delay and latches as the petitioner had resigned from service in March 2002 and had filed the present writ petition only after lapse of period of 3 years. The other facts are not disputed but it is stated that the petitioner submitted the application for resignation from service on 25.3.2002 which was accepted by the Commandant vide order dated 26.3.2002 and in terms of Rule 19 of the BSF Rules, 1969 and the office order, the petitioner was not entitled to receive any pensionary benefits as they were denied by the competent authority. A Court of Inquiry was ordered on 26.3.2002 which was completed on 31.3.2002 and a warning letter was issued to the petitioner to be more careful. The petitioner had earned 7 bad entries on various occasions due to 'absence without leave' and 'intoxication' in his 12 years of service, which proved him as an indisciplined person. In spite of punishment, he could not improve. It is denied that the petitioner was discharged from service arbitrarily and forcibly. It is stated that he had resigned from the service voluntarily and the present petition is liable to be dismissed.

(3.) At the very outset, we may notice that in reply to paragraph 4 of the counter affidavit, i.e. with regard to the 7 bad entries due to 'unauthorised absence' and 'intoxication' in 12 years of service, the same has not been denied by the petitioner in his rejoinder and it is stated "no comments being factual". The petitioner admittedly overstayed the leave granted to him and did not join the Unit till 26.3.2002. He lost his identity card and thereafter he submitted a resignation which was accepted by the authorities. The only ground raised in the present writ petition is that the resignation is not voluntary but is a result of undue pressure and threat given by the Commandant to the petitioner and as such the order of discharge passed on such basis is unsustainable and the petitioner would be entitled to reinstatement with all benefits. It is also stated in the alternative that even if the petitioner's resignation is accepted, still the petitioner would be entitled to receive the pension. This argument was raised in the Court but no such relief has been claimed by the petitioner in the writ petition. The order dated 26.3.2002 reads as under:- " ORDER As approved by the Commandant, resignation tender by No. 90161011 W/M (E/F) Ram Chander of 'D' Copy of this unit is accepted hereby accepted with effect from 31.03.2002 (AN) on his own request without any pensionary benefits under Rule- 19, BSF Rule-1969. 2. He is not entitled to get any pensionary benefits under any of the provisions of CCS (Pension) Rules as per order of the Hon'ble Supreme Court of India dated 30.03.2001. 3. He will be struck off strength of this unit with effect from 31 Mar 2002 (AN). Sd/- No.Estt/42Bn/Resign/RC/2002/3930-36 (JAI RAM SINGH) Dated, the 26 Mar 2002. DY COMDT/ADJUTANT FOR COMMANDANT 42 BN BSF 26 Mar 2002"