SHAM LAL Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) Through the medium of the present petition, the petitioner seeks direction in the nature of certiorari quashing Order No. Estt/Resign/126 BN/2001/285-91 dated 19th January 2001, whereby the resignation of the petitioner has been accepted without pensionary benefits. Further direction is also sought in the nature of mandamus commanding the respondents to allow the petitioner to resume duty against the post on which he was working as also to pay him salary by treating the petitioner in service.

(2.) Brief facts of the case are that the petitioner came to be appointed as constable in Border Security Force on 20th July 1986. After undergoing the basic training, the petitioner was posted in 78th Bn BSF and served various parts of the country. The petitioner was promoted as Lance Naik and posted as such in 126th Bn BSF. While the petitioner was posted in aforesaid Battalion, a case under sections 19-A, 22-E and 26 of BSF Act came to be registered against him on the grounds that the petitioner absented himself without prior permission from Bn. Headquarters on 8th October 2000, brought liquor in the Unit on 9th October 2000 as also found in drunken state on 5th December 2000. Charge-sheet was framed against the petitioner vide No. Estt/ROE/SL/126BN/2000/11741-45 dated 6th December 2000 but no proceedings were initiated against him even after framing the charge-sheet. According to the petitioner, the respondents through coercive method got his signatures on the papers and vide impugned Order No. Estt/Resign/126 BN/2001/285-91 dated 10th January 2001, accepted the resignation of the petitioner without pensionary benefits. Further the respondents vide another Order No. Estt/126BN/Resign/2001/58 dated 15th January 2001 struck the petitioner from the roll of BSF and turned him out from the unit where he was posted. The petitioner approached the respondents for allowing him to continue in service, requested them not to give effect to his resignation as also order dated 10th January 2001. Further case of the petitioner is that order dated 10th January 2001 was required to be withdrawn as the petitioner signed the documents without any knowledge what was stated therein. The petitioner preferred representation under Rules 167 and 168 of the BSF Rules for allowing him to resume duty and also treat him on duty but till date they have not considered the representation.

(3.) On being put to notice, counter has been filed on behalf of the respondents stating therein that the petitioner was enrolled in Border Security Force on 21.7.1986 as constable. After completion of basic training, the petitioner was posted to 126 Bn. The petitioner was found absent without proper permission from the aforementioned Unit without proper permission on 8.10.2000 and reported on 9.10.2000. The petitioner was medically examined and found in the state of intoxication. The petitioner was advised by the respondent- authorities to improve himself otherwise he will be dealt under BSF Act and Rules. It is further stated that on 3.12.2000, when the troops were fallen at Bn. HQ for Arms cleaning, the petitioner was again found absent from the unit line. On searching, he was found in a civilian house in an intoxicated condition in the nearby village. The petitioner was medically examined from PHC 82 Mile Dist Dhalai. The Second Command of 126 Bn. BSF was directed to record the evidence against the petitioner for offence under BSF Act. The petitioner also earned 4 bad entries during his service and he was habitually absentee. While the recording of Evidence was in progress, the petitioner approached respondent No. 5 as also Staff Officer of Unit and requested for early acceptance of his resignation as the petitioner was unable to serve in BSF due to domestic problems. The petitioner was advised by the respondent- authorities to continue in service but he insisted upon the respondents to accept his resignation. Keeping in view his previous record of the petitioner as also to maintain discipline in the force, the resignation of the petitioner was accepted by Unit Commander on 10th January 2001. After acceptance of the resignation of the petitioner, the recording of evidence was withdrawn.