UNION OF INDIA Vs. SUNIL KUMAR SINGH

JUDGEMENT

(1.) This Letters Patent Appeal is directed against the judgment dated 06.07.2001 passed by the learned single Judge in SWP No. 1731/1998, whereby the learned single Judge while setting aside the order of dismissal of the writ petitioner from service, has directed the appellant-Union of India to reinstate the writ petitioner.

(2.) Briefly stated, the relevant facts of this case are that the writ petitioner was enrolled as a Constable in the Border Security Force on 6th March, 1989. He proceeded on casual leave for 15 days with effect from 13th December, 1997 and was to report on duty on 31st December, 1997. After expiry of the leave period when he did not report back for duty, he was asked to join the duty vide registered letter dated 05.01.1998. Instead of reporting back, the writ petitioner sent a telegram seeking extension of 12 days leave, which was rejected by the competent authority. Again he was asked to report for duty vide registered latter dated 05.01.1998 followed by letters dated 11.01.1998 and 21.01.1998, but the writ petitioner failed to do so. A Court of Inquiry was ordered on 01.02.1998 to enquire into the circumstances under which the writ petitioner absented from leave. Thereafter, vide communication dated 04.02.1998 apprehension roll was issued to the concerned Superintendent of Police to contact the writ petitioner and direct him to report to his Unit. The Court of Inquiry found that the writ petitioner had absented himself from duty and he was recommended to be declared as a deserter. Thereafter too, when the writ petitioner did not report for duty, a Show-cause Notice dated 20.03.1998 was issued asking him to show-cause within 30 days as to why his services be not terminated under the provisions of the BSF Act and Rules. Even then no reply was received from the writ petition. Compelled by the Circumstances, Commandant 117 Bn. vide communication dated 20.04.1998 requested the Commandant 96 Bn. BSF to contact the writ petitioner and direct him to report to his Unit. On 24.04.1998 a telegram was received from the father of writ petitioner intimating that his son was very serious and would report to the Unit after treatment. On receiving the telegram, vide communication dated 30.04.1998 the writ petitioner was directed to submit the medical documents regarding his illness. However, he neither submitted the medical documents nor reported himself for duty till 01.08.1998, when the competent authority after considering all the merits of the case dismissed him from service with effect from 31.07.1998 (AN) under Rule 177 of BSF Rules, 1969.

(3.) Aggrieved by the same, the writ petitioner challenged the order of his dismissal before the learned Writ Court by the medium of SWP No. 1731/1998 on the ground that the competent authority without conducting any inquiry as required under Section 62 of the BSF Act and without following the procedure as required under Rules 170 to 176 of BSF Rules has wrongly and illegally dismissed him from service. The stand taken by the writ petitioner before the Writ Court was that he was suffering from abdomen disease and was advised by the doctor to take complete rest for the period 03.01.1998 to 31.08.1998. His further stand was that he was continuously intimating his Unit through telegrams regarding extension of his leave, therefore, the order of dismissal from service is disproportionate to the misconduct, if any.