HIROK JYOTI DAS Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Mr. R. Mazumdar, learned counsel appearing for the writ petitioner. Also heard Ms. B. Sarma, learned Central Govt. Counsel appearing for the respondents.

(2.) The writ petitioner herein, who is an ex-Border Security Force (BSF) Constable, has approached this Court by filing the present writ petition assailing the order dtd. 12/11/2009 passed by the Commandant of the 27th Battalion, BSF, dismissing the petitioner from service inter-alia contending that the provisions of Rule 173(8) of the Border Security Force Rules, 1969 has not been followed in this case and therefore, the impugned order as well as the enquiry proceeding which had commenced on 5/9/2009 stands vitiated in the eye of law.

(3.) The facts of the case, in a nutshell, are that the petitioner had joined as a Constable in the BSF in the year 2004. While in service, the petitioner had to avail 15 days casual leave with effect from 1/6/2009 to 20/6/2009 with two days in between viz. 7th and 14th June being Sundays and 18th to 20th of June being the joining period. The petitioner claims that he was not keeping well on being diagnosed of being suffering from hepatitis, associated with malaria and was advised bed rest for the period till 12/12/2009. However, the Commandant i.e. the respondent No.4 was of the view that the petitioner had overstayed his leave and accordingly, ordered a One-Man Court of Enquiry so as to enquire into the reason for such over stay. The Court of Enquiry assembled on 5/9/2009 and after examining five witnesses and 11 documents, had come to an opinion that the petitioner may be declared as a deserter and disciplinary action be initiated against him including issuance of apprehension rule for recovery of the I-Card. Consequently, follow up action was initiated which had culminated in the order of dismissal from service dtd. 12/11/2009. The appeal preferred by the petitioner against the order of dismissal from service was rejected by the appellate authority by order dtd. 7/12/2010 pursuant whereto, the petitioner had submitted a representation before the Director General of BSF viz. respondent No.2 on 109.01.2011. However, the said representation was not entertained by the respondent No.2 on the ground that the matter was already closed. Situated thus, the petitioner has approached this Court by filing the instant writ petition.