UNION OF INDIA & ORS. Vs. MOHINDER SINGH

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 02.01.2009 passed by the Writ Court in SWP No. 2247/2002, whereby the writ petition filed by the writ petitioner came to be allowed quashing the order of his dismissal from service with effect from 31.01.2001 (hereinafter, for short, impugned judgment), on the grounds taken in it.

(2.) The facts in brief are that the writ petitioner was enrolled as a Constable in the BSF on 24.05.1983. Vide order dated 11.01.1999 the writ petitioner was posted to 05th Bn. BSF, accordingly, he was relieved on 16.04.1999. But, instead of joining in the said battalion, the petitioner opted to remain absent till 17.05.1999 when his posting order to 05th Bn. came to be cancelled with a direction to him to resume his duty in 71 Bn. BSF through registered post. However, the writ petitioner at his will resumed his duties in the said battalion on 02.08.1999 after absenting himself without leave for a period of about 108 days, for which he was summarily tried and was awarded severe reprimand. Thereafter, the writ petitioner filed SWP No. 95/2000 questioning the order dated 17.05.1999 by virtue of which his posting order to 05th Bn. came to be cancelled. The writ petition came to be dismissed vide judgment dated 09.04.2001, the appeal (LPASW No. 223/2001) too tiled against the said judgment met with the same fate and came to be dismissed on 17.04.2002. Meanwhile, the writ petitioner proceeded on 15 days casual leave with effect from 11.10.1999 to 30.10.1999. He was to resume his duties on 01.11.1999, but when he did not join his duties, he was directed to resume his duties vide three registered post letters on 04.11.1999, 18.11.1999 and 07.12.1999. When he failed to do the needful, Court of Inquiry, as warranted under the provisions of Section 62 of the Border Security Force Act, 1968 (hereinafter, for short, the Act), was conducted vide order dated 07.12.1999 and completed by the Presiding Officer on 27.12.1999 recommending issuance of apprehension roll and a show cause notice to the writ petitioner. Thereafter the writ petitioner made three communications dated 28.12.1999,15.01.2000 and 20.01.2000 expressing his inability to join his duties on account of pain in his left leg.

(3.) We have heard learned counsel appearing for the parties and are of the considered view that the reasoning given by the Writ Court is not legally correct and the impugned judgment needs to be set aside for the following reasons.