UNION OF INDIA AND ORS. Vs. YASH PAL

JUDGEMENT

(1.) THIS appeal has been filed against the order made in SWP No. 1579/2003 dated 05.03.2004 wherein the respondent has challenged the order of dismissal and prayed for reinstatement in service and release of salary and other benefits. The case of the respondent before the learned Single Judge was that he was recruited as Water Carrier in the Border Security Force in the year 1988. The respondent went on leave for seven days, which was granted vide order dated 18.04.2002 and he was to rejoin the duties after the expiry of the leave. However, due to his illness he was able to resume his duties on 19.05.2002 in 73 Bn BSF and the appellants did not allow the respondent to rejoin the duty and a charge -sheet was issued on 07.09.2002 calling upon the respondent to show cause for overstaying the leave granted to him. The respondent was kept in close arrest vide order dated 12.09.2002 till finalization of the Summary Security Force Court (SSFC). The trial was conducted and the respondent was awarded sentence, "to be dismissed from service" on the same day i.e. 12.09.2002. An appeal was preferred before the Deputy Inspector General, Border Security Force on 05.12.2002 in terms of Rule 167 of the BSF Rules, 1969 which was dismissed vide order dated 09.04.2003. Since the appeal was also rejected the respondent filed writ petition before this Court challenging order dated 09.04.2003 and the learned Single Judge considering the reasons pleaded by the petitioner -respondent that due to illness the respondent was unable to report back for duty gave the finding that the punishment imposed dismissing the respondent from service was disproportionate and remanded the matter for imposing a lesser punishment than dismissal from service. Having aggrieved of the said order, the instant appeal has been filed.

(2.) IN the memorandum of appeal filed by the respondent before the appellate authority, it was stated that due to illness he could not report for duty on the expiry of the leave and therefore he has overstayed the leave. It was also stated in the appeal memorandum that he was not given an opportunity to produce the medical documents. Even though such pleas were made in the appeal memorandum, order of the appellate authority nowhere reflects consideration of such grounds raised but simply rejected the appeal stating that the appeal is devoid of merits.

(3.) IN the appeal, memorandum the respondent has prayed for showing leniency in imposing punishment but such fact was also not considered by the appellate authority.