ASSADULLAH KHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS letters patent appeal is directed against the judgement and order of a learned Single Judge dated February 15, 2001 in SWP No. 565/92, dismissing the writ petition of the appellant.

(2.) THE appellant, an ex -constable of the Border Security Force (BSF), filed the writ petition for quashing order of his dismissal from service dated 26th February, 1991. The short facts of the case are that upon his transfer to 91 Battalion of the Force, the appellant was granted thirty days earned leave from March 5, 1990 to April 3, 1990. Earlier, on representation on the ground of his mothers illness he was posted at BSF Sector Headquarters, Bandipora. On April 9, 1990, instead of joining the appellant filed representation against transfer which according to him remained pending. In the meantime, his wife allegedly fell ill preventing him from joining his duties. On August 12, 1990, a show cause notice was issued to the appellant. The show cause notice stated that he was overstaying without leave with effect from April 4, 1990 (FN). On account of absence without leave for such a long time, the competent authority was of the view that his retention in service was undesirable and the competent authority proposed to terminate his service by way of dismissal. If the appellant wanted to say anything in his defence or against the proposed action, he could do so before August 20, 1990. In case no reply is received by that date, it would be inferred that he has no defence to put forward.

(3.) ACCORDING to the appellant, he received the said notice on 5th September 1990 i.e. after the expiry of the date for submission of the show cause. He nevertheless filed show cause but nothing was communicated to him until service of the dismissal order. According to the appellant, he was denied due opportunity of hearing as provided in the Border Security Force Act, 1968 and the Border Security Force Rules, 1969 framed thereunder. The order being in violation of the statutory rules as well as the rules of natural justice is fit to be quashed.