BACHU SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner was enrolled in Border Security Force as Constable (GD) on 22.06.1988. After the basic training, the petitioner was posted to 25 BN B.S.F. and permanently absorbed in BSF Academy Tekanpur Training Company on 08.07.2000. It is further stated that the petitioner was granted one days casual leave on account of his ailment on 06.05.2001. His condition, however, became precarious and applied for extension of leave alongwith medical certificate to the respondents. It is further stated that the respondents, instead of giving sanction to the leave applied for, passed order dated 18th/19th January, 2002 by which he was dismissed from service. The period of absence of the petitioner from service was treated as 'Dies -Non. According to the petitioner, the order of dismissal was passed on account of absence without leave, without conducting enquiry and providing an opportunity to the petitioner of being heard. The order of dismissal having been passed without enquiry and in violation of the provisions of the B.S.F. Act and Rules, deprived the petitioner of his valuable right of service. The petitioner further stated that the order of dismissal amounts to harsh punishment awarded to him by the respondents and does not commensurate with the act of omission and commission attributed to him for absence without leave from duty. The order impugned, having been passed without following the provisions of the B.S.F. Act and Rules framed thereunder, the petitioner further pleaded, deserves to be quashed and the petitioner be reinstated by the Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India read with section 103 of the Constitution of Jammu & Kashmir.

(2.) THE stand of the respondents, in their reply, is that the petitioner was sanctioned leave from the B.S.F. Academy, Tekanpur, MP, which he overstayed. A Court of Inquiry, mandatorily required under section 62 of the B.S.F. Act, was conducted at the B.S.F. Academy Tekanpur. Show -cause notice and dismissal order were also issued by the B.S.F. authorities from their Academy at Tekanpur and, thus, questioned the jurisdiction and right of the petitioner to approach this Court. Respondents further stated that despite various opportunities provided to the petitioner to rejoin his duty, he did not report back to the Academy, which compelled them to resort to the provisions of section 11(2) of the B.S.F. Act read with Rule 22 of the B.S.F. Rules, and dismissed the petitioner administratively. A show -cause notice was issued to the petitioner through various communications but neither he reported on duty nor provided any information in regard to his overstay after the sanctioned leave nor replied to the show -cause notice, which persuaded the respondents to issue the order of dismissal on 18.01.2002. Respondents further denied to have received any application accompanying the medical certificate for extension of leave. In fact, the petitioner did not respond to the correspondence made by the respondents Unit. An apprehension order was issued against the petitioner even after the completion of the enquiry but his whereabouts could not be traced out by the police and ultimately the latter intimated the respondents vide their communication dated 22.11.2001, in expressing their inability to apprehend the petitioner. According to the respondents, the dismissal order of the petitioner from service was passed on 18.01.2002 after waiting for more than 40 days for his reply to the show cause notice. It was after due observance of the procedure and legal formalities, the order of dismissal from service of petitioner was passed by the respondents. In fact, the trial of the petitioner on account of his long absence had become virtually impracticable. The competent authority in such circumstances found that the retention of the petitioner was undesirable and by the impugned order terminated his services. The respondents further stated that when action is proposed to be taken under section 11(2) read with Rule 22 does not contemplate the recording of R.O.E. Respondents also assailed the maintainability of the writ petition and submitted that since no cause of action has arisen within the jurisdiction of this Court, the petition is required to be dismissed.

(3.) HEARD the learned counsel appearing for the respective parties and also perused the record meticulously.