UNION OF INDIA Vs. MANJIT SINGH

JUDGEMENT

(1.) This appeal is filed by Union of India against the order of learned Single Judge made in SWP No. 2289/1999, dated 31.10.2001 in allowing the writ petition challenging the dismissal order passed against the respondent dated 31.08.1999 and granting liberty to the appellant to pass fresh orders. The case of respondent before the learned Single Judge was that he was enrolled as a Constable in the Border Security Force on 25.06.1987 and attended training for nine months at Hisar. He was posted in 24 Bn. BSF. Subsequently petitioner was transferred to STC Srinagar and thereafter to 66 Bn. and again he was transferred to 105 Bn. of BSF. For the most of the period the respondent was posted at Border areas. While the respondent was posted in Budhal, he was issued an order on 21.01.1998 terminating him from services. The said order was challenged by the respondent in SWP No. 1885/1998 and during the pendency of the writ petition, by order dated 11.11.1998, the appellant reinstated the respondent in services. The respondent assumed his duty, however, after reinstatement respondent alleged that he was beaten by the Commandant 105 Bn. BSF mercilessly and was handcuffed on the ground that he has filed writ petition before the High Court. Respondent was produced before this Court and the Court ordered his medical treatment. Again another order was issued on 31.08.1999 by which the respondent was dismissed from services on the ground that he has absented from duty w.e.f. 25.04.1999 to 31.08.1999. According to the respondent, he was on medical leave due to injuries sustained by him due to the ill treatment of beating by the Commandant 105 Bn. According to the respondent, Sec. 62 of the Border Security Force Act mandates the conduct of Court of inquiry if a person absents himself from duty without authority for a period of thirty days by giving opportunity to the delinquent official, evidence of all the witnesses has to be taken on oath as per Rule 173 and further opportunity is required to be given to cross -examine the witnesses. Copies of the Court of inquiry proceedings have to be furnished to the delinquent official and show cause notice has to be issued thereafter. According to the respondent, he was not served with any show cause notice and without giving opportunity to defend his case, the order of dismissal was passed which is in violation of the Act and Rules. It is also contended by the respondents that a person has to be proceeded against for absenting himself, a charge -sheet has to be prepared, served, opportunity has to be given to reply and witnesses have to be examined in his presence giving opportunity to the delinquent official to cross examine them and only after the charge is proved after following the said procedure, major punishment of dismissal can be imposed. The said procedure having not been followed, the order of dismissal was challenged and the same was set aside by the learned Single Judge with liberty to the appellant to proceed afresh.

(2.) The said order is challenged by the appellant on the ground that the competent authority ordered reinstatement of the respondent on compassionate grounds and after giving sufficient opportunity subsequent order was passed for not reporting to the duty on 25.04.1999. Registered letter was issued at his home address requesting the respondent to resume duty without delay still there was no response, therefore, a show cause notice was issued by a registered letter on 01.07.1999 calling upon him to state as to why his services be not terminated for absence without leave. Apprehension note was also issue to the Superintendent of Police Hisar for apprehending the respondent, still there was no response from the respondent.

(3.) We have gone through the memo of appeal and objections filed by the appellant to the writ petition.