MOHD. MAQBOOL HUSSAIN Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was enlisted in Border Security Force ["BSF"] as Cook vide 105 Bn BSF order No.Estt./105/Rectt/99/1657-62 dtd. 1/2/1999. The petitioner was later converted into Sweeper from Cook on his request vide 105 Bn BSF order dtd. 31/5/2000. While the petitioner was posted to 28 Bn BSF, he applied for and was granted 15 days casual leave w.e.f. 4/9/2001 to20.09.2001 but he reported back in the Unit on 8/10/2001 after overstaying more than 18 days. The petitioner again proceeded on 10 days earned leave w.e.f. 29/10/2001 to 7/11/2001 and was directed to rejoin duty on 7/11/2001. The petitioner, however, did not rejoin duty and overstayed the sanctioned leave. The petitioner was time and again communicated to rejoin his duty but he did not respond. On completion of 30 days of his overstay, one man court of inquiry was ordered vide order No.11217-19 dtd. 7/12/2001 to ascertain the circumstances under which the petitioner had overstayed his leave. After completion of COI, a show cause notice was issued and the petitioner was provided an opportunity to join back but he did not join back his duty within the stipulated time but reported in the Unit on 3/2/2002 at his own after overstaying leave of more than 88 days. The petitioner was heard by the Commandant on his reporting back under BSF Rules. Being not satisfied with the explanation tendered by the petitioner, Commandant ordered Record of Evidence vide order No.1571-72 dtd. 8/2/2002. After going through the Record of Evidence, the petitioner was put on trial before the Summary Security Force Court ["SSFC"], which was convened on 5/3/2002. The petitioner pleaded guilty and was sentenced "to be dismissed from service" w.e.f. 5/3/2002. It is this order of the respondents which is called in question by the petitioner in this petition.

(2.) The impugned order is assailed by the petitioner on numerous grounds. The grounds which were pressed into service by the learned senior counsel while arguing the matter on behalf of the petitioner may be summarized as under:-

(3.) On being put on notice, the respondents have filed their objections. It is submitted by the respondents that the entire laid down procedure was strictly followed and the petitioner was given adequate opportunity of being heard at all stages. It is submitted that the petitioner has a track record of remaining unauthorizedly absent from duty and has been reprimanded on many occasions. It is submitted that the petitioner was earlier convicted under Sec. 19(a) of BSF Act and was sentenced to 28 days rigorous imprisonment in force custody on 21/9/1999. He was again convicted for commission of offence under Sec. 19(b) of BSF Act and was sentenced to 07 days rigorous imprisonment in force custody on 17/7/2000. Again the petitioner was convicted under Sec. 19(b) of the BSF Act and sentenced to 14 days rigorous imprisonment in force custody on 20/10/2000. It is, thus, submitted that the petitioner is an incorrigible violator of the provisions of BSF Act and the Rules framed thereunder and overstaying leave and absenting without leave with impunity is virtually his habit.