D D SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) Challenge is made in this writ petition filed by the petitioner to the show cause notice as also to the order of dismissal passed by the respondents invoking the power under Rule 20 of the BSF Rules, 1969.

(2.) The petitioner joined the Border Security Force as Sub-Inspector in the year 1970 and, thereafter, he was promoted to the post of Inspector in the year 1980. In 1986, the petitioner was transferred to EDP, Directorate of the BSF Headquarter, New Delhi, and while working in the aforesaid capacity, he was promoted as Assistant Commandant in the month of February, 1989. The petitioner was subsequently transferred and posted to 40 Battalion, BSF in the month of March, 1989. He, however, was granted earned leave for 25 days initially and thereafter again for another 22 days extension of earned leave was granted with effect from 19.6.1989 to 4.8.1989 with permission to suffix 5th and 6th August, 1989 being Government holidays. The petitioner again applied for extension of leave for 14 days on the ground of his father's illness. Since, however, the petitioner was under order of transfer to 40 Battalion, BSF and his Unit which is located at Punjab Border was insisting for early rejoining of the petitioner, he was, therefore, advised through Registered letter that he should join his Unit first and then should apply for leave on rejoining the Unit. The aforesaid intimation sent to him through registered post letter could not be served on him and accordingly such an intimation which was sent to him by post was pasted at the entrance door of his house on 19.8.1989. In spite of the aforesaid intimations, the Officer did not join his duties and was over staying leave. Even thereafter, one Sub-Inspector from EDP of BSF was also sent to hand over a copy of the letter to the Officer, but, the wife of the petitioner refused to accept the same on the ground that the petitioner was not available at his residence. Having no other alternative, the respondents issued an apprehension role to the petitioner for his apprehension through civil police in accordance with the provisions of Rules 60 and 611 of the BSF Act, but the same also could not be executed and the petitioner could not be apprehended.

(3.) A one man Court of Enquiry to enquire into the circumstances under which the petitioner who was transferred to 40 Battalion BSF from EDP (DTE) did not rejoin his new place of posting in spite of sending intimation through letters as well as by post and pasting, a copy of the same at the entrance door of his house was initiated and was completed under Section 62 of the BSF Act. The said Court of Enquiry opined that the Officer may be declared as a deserter. The Additional Director General, Punjab Frontier of BSF also agreed with the aforesaid opinion and held that the Officer might be declared as a deserter and removed from service by way of dismissal as his trial by General Security Force Court was considered to be inexpedient and impracticable and further retention of the Officer would be undesirable in the public interest.