SUNIL KUMAR MISRA Vs. UNION OF INDIA

JUDGEMENT

(1.) DISMISSAL of the petitioner vide order dated 10 -3 -2000 and treating the period of absence from 2 -8 -1999 to 9 -3 -1999 (221 days) as Dies Non is under challenge in the present petition. While working as Constable in 105 Bn. Of the Border Security Force, petitioner left for his home in 1999. It is alleged that he applied for leave which was orally sanctioned by the Assistant Commandant. Leave was sought on receiving information from his home that his house, animals and other property has been washed away in floods. It is further alleged that the petitioner applied for extension of leave through post. Petitioner received a show cause notice No. Estt/105 Bn/99 -2000/482 dated 27th January 2000 asking him to report on 28 -2 -2000. It is alleged that he joined the Unit on 28 -2 -2002 and also submitted affidavit as also the certificate issued by the Panchayat Sewak regarding the damage caused to his house in Floods. However, he was not permitted to join and the joining report was sent by him through registered post on 29th Feb 2000. Petitioner was informed that he has been dismissed vide the impugned order dated 10 -3 -2000 and his period of alleged absence from 2 -8 -1999 to 9 -3 -1999 has been treated as Dias non. This order has been challenged on the ground that no inquiry under was held against him. He was not afforded an opportunity of being heard though he sent a number of representations for extension of leave, but the same have not been taken into consideration. It is further stated that Rules 48 and 49 of the BSF Rules while recording the evidence, have also not been complied with. A petition was made under Rule 167 and 168 of the BSF Rules, 1969 which has not been decided. Finally, it is stated that the punishment awarded to the petitioner is harsh and dis -proportionate.

(2.) CASE of the petitioner is resisted by the respondents. Preliminary objection is raised that the petitioner has not exhausted the statutory remedy provided under Rule 28 -A of BSF Rules, 1969. Regarding the absence of the petitioner, it is stated that on 2 -8 -1999 the petitioner absented himself from duty from TAC HQ 105 Bn BSF. He was informed at his home town through letter dated 21 -8 -1999 to join the duties immediately, but he did not do so. On expiry of 30 days of his absence a Court of Inquiry under section 62 of the Act was ordered by the Commandant vide his No. Estt/ 105/ COI -OSL/ 99/ 9985 -87 dated 8 -10 -1999 to investigate the circumstances under which the petitioner absented without leave. The opinion of the Court of Inquiry is that the petitioner has absented without authority/permission. It is further stated that since the petitioner continued to remain absent action was initiated against him under section 11 of BSF Act read with Rule 22(2) and 177 of the BSF Rules, 1969 on the administrative side. A show cause notice was served on the petitioner at his home address through registered post vide letter No. Estt/105/99 -2000/482 dated 27 -1 -2000 whereby he was directed that if he had anything to urge in his defence against the proposed action, he may do so before 28 -2 -2000. Petitioner did not avail the opportunity given to him vide the afore -said communication. Accordingly, after the completion of the stipulated period in the notice he was dismissed from service under section 11 (2) of the BSF Act, 1968 read with Rule 22(2) and 177 of the BSF Rules, 1968 and the period of absence has been treated as Dias Non. It is further alleged that earlier also the petitioner earned adverse entries. He was awarded punishment of 14 days rigorous imprisonment in Force Custody under section 19(a) of the BSF Act 1968 for remaining absent without leave for 42 days w.e.f. 22 -5 -1991 to 2 -7 -1991. He was also awarded 28 days rigorous imprisonment in Force Custody for remaining absent without leave for 72 days w.e.f. 19 -11 -1992 to 29 -1 -1993. Further he was awarded 28 days rigorous imprisonment in Force Custody under section 19(b) for without sufficient cause over staying leave granted to him for 27 days w.e.f. 19 -10 -1994 to 14 -11 -1994. Petitioner is said to be an indiscipline soldier. A show cause notice No. Estt/ 105 -Bn/99 -2000/482 dated 27 -1 -2000 was served upon the petitioner asking him to reply which opportunity he did not avail. It is denied that the petitioner reported on duty on 26 -2 -2000 and was denied rejoining.

(3.) REJOINDER affidavit has been filed by the petitioner wherein the grounds urged in the writ petition have been reiterated. It is further submitted that Rules 20, 21 & 22 of the BSF Rules have not been followed and no opportunity was given to the petitioner to show cause.