BANWARI LAL YADAV Vs. UNION OF INDIA

JUDGEMENT

(1.) By this writ petition, the petitioner has prayed for quashing of the impugned orders dated 9.3.2002 and 18.12.2002 passed by the respondent no.2 and 3, whereby the petitioner was dismissed from service for the alleged mis-conduct of absence from duty without leave for a period of 55 days from 14.11.2001 to 7.1.2002.

(2.) The facts succinctly stated are that the petitioner was enrolled as a Constable in the Border Security Force on 20.02.1990 through proper recruitment process. On 14.11.2001, allegedly, the petitioner absented from duty without leave. After his absence was noticed, the petitioner was directed to join his unit immediately vide 105 Bn BSF letter No.2684-85 dated 16.11.01, 2777 dated 27.11.01, 2882 dated 10.12.01, 2984-85 dated 15.12.01 and 100-01 dated 06.01.02. Ultimately, the petitioner reported back in the unit on 7.1.2002 on his own. In the meantime, as per section 62 of the BSF Act, a Court of Inquiry was ordered to find out the circumstances under which the petitioner had absented himself from duty without leave. After completion of the proceedings of the Court of Inquiry, in which the petitioner also deposed, the petitioner was found guilty of being absent without leave without sufficient cause. Accordingly, offence report was prepared and the petitioner was heard by his Commandant on 9.1.2002 under the BSF Rules. During the hearing, a prima facie case was found against the petitioner, therefore, the Commandant ordered for preparation of record of evidence (ROE). The petitioner was handed over the copy of the charge sheet to prepare his defence. After completion of record of evidence, the Commandant decided to dispose of the case by holding Summary Security Force Court under BSF Rule 51 (2) (3). Accordingly, the petitioner was informed about the same and was directed under BSF Rule 157 to nominate any person to perform the duties of friend of the accused.

(3.) The SSFC assembled on 21.01.2002 under section 70 of the BSF Act. During his trial, the petitioner pleaded guilty to the charge against him. Before recording of the plea of the petitioner, the provisions of BSF Rule 142 (2) were complied with and the petitioner was informed about the general effect of the plea of guilt and the defence and procedure which was to be followed consequent to the said plea of guilt. The court having satisfied itself that the petitioner understood the charge and the effect of plea of guilt, accepted and recorded the same. On completion of the SSFC proceedings, the petitioner was found guilty to the charge. Before awarding the sentence as per BSF Rule 101, the court took evidence and recorded the general character, age, service, previous punishment, the length of time he had been under arrest, reward etc. and thereafter awarded the sentence of dismissal from service.