SHAM LAL Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner seeks quashment of Order No.2/198/2002 /BSF/ CLO (D&L)/3232-37 dated 23.03.2006 passed by respondent No.2, rejecting his Statutory Appeal as also Order No. DIG/LAW/1043/95/123/962-1012 dated 03.02.1995 passed by respondent No.3. He seeks direction to respondents to reinstate him in service with all consequential benefits including full back wages and allowances with retrospective effect and to treat him in continuous and uninterrupted service without any break.

(2.) Petitioner pleads that he was selected as Sub Inspector in Border Security Forces (BSF). While posted at 79 Battalion BSF, located at Tura, Meghalaya, he claims to have applied for 14 days "? casual leave with effect from 9th December, 1992 on the ground of illness of his wife, who was staying along with petitioner "?s old parents at his native place in R.S. Pura, Jammu. The leave, it is averred, was duly sanctioned. After expiry of sanctioned casual leave, petitioner had to report for duties on 30th December, 1992. Since petitioner "?s wife was not well and had become weak and for want of proper care and treatment, being in advanced stage of pregnancy and there being no other member in the family except petitioner to take care of his wife, as such, he was constrained to extend the leave by another 15 days through telegram. However, when petitioner did not receive any intimation from respondent no. 4, Commandant, to whom the extension of leave was applied for, he went to join his duties before expiry of the requested-extended period of leave. He, it is next averred, took his ailing wife along with him as there was no other member in the family except his old parents to look-after and provide her timely medical treatment. It is claimed that after joining duties, petitioner met the Adjutant because respondent no.4 was out of station and requested him to assign him duties at Bn. Headquarter because of the precarious condition of his wife, who was at advanced stage of pregnancy. Respondent no.4, Commandant, after coming at Headquarter, and on seeing petitioner at Headquarter, asked him to explain the reasons for being late and not joining duties upon expiry of sanctioned leave of 14 days. To this, petitioner explicated his difficulty and circumstances, and narrated the entire episode of illness of his wife, who was in advanced stage of pregnancy and also submitted that since there was no other member in the family except old and sick parents, he was compelled to extend the leave by way of telegram. The petitioner also requested to assign him the duties at the Bn. Headquarter till his wife delivers the child and recovers/regains her health. The Commandant, instead of allowing petitioner to discharge his duties at the Bn. Headquarter, ordered petitioner to perform duties at "B-Coy", which was at a minimum distance of about 200 Kms. The petitioner again requested the Commandant to consider his difficulty on humanitarian grounds as leaving his wife alone at the Headquarter would endanger the life of his wife and unborn child as well. The petitioner also requested the Commandant that he was willing to obey the order and in case Bn. Headquarter duties were not to be assigned to him, he might be permitted to drop his wife back to his home town or at least to accompany her upto Guwahati, from where direct Train for Jammu was available, but this proposal was also not accepted. It is next claimed that on next day, petitioner again made an application, elucidating his difficulties and also requested him for personal interview, but the application went unheeded and petitioner was not granted an opportunity to explain his difficulties to the Commandant.

(3.) It is further contended that petitioner could not proceed for the Border on account of precarious condition of his wife, who was in advanced stage of pregnancy and was attending his duties at the Headquarter regularly with the fervent hope that the Commandant would give him an opportunity to explain his problem. Instead of granting an opportunity to the explain his difficulties, petitioner was served with two charge-sheets u/s 19(b) of Border Force Act of 1968, to the effect that he had over-stayed the period of leave granted to him without sufficient cause. The other charge sheet issued u/s 21 (1) of the BSF Act was for alleged disobedience and wilful defiance of authority and lawful command given by his superior. Petitioner avers to have supplied copy of abstract of evidence in regard to charge sheets for the alleged offence, however, not supplied record of evidence. The petitioner also received a letter from the Commandant 79 Bn, BSF to the effect that he occupied the Family Quarter, Assam-Type-III, after breaking open the lock and has brought his family to the location without prior permission, to which petitioner submitted his explanation, clarifying the true and correct facts and denying the allegation of breaking open the lock of the quarter. The petitioner received another letter from Commandant 79 Bn. BSF, stopping his pay and allowances and directing him to proceed to "B" Coy. It is further contended that under the circumstances when petitioner was neither permitted to go and drop his ailing wife to his native place in Jammu or at least upto Guwhati nor was permitted to perform duties at Headquarter so as to enable him to take care of his sick wife and that his pay and allowances were stopped and the money brought from home was almost spent, he was compelled to tender his resignation on 28.01.1993. When no action was taken by the authorities even after petitioner submitted his resignation, he made an application for leave but no action was taken on his leave application. He was compelled to leave for his home town along with his wife. The petitioner on coming back to Jammu sent a representation to Director General, BSF, Delhi, for his transfer to some other location as he had been unduly harassed by the Commandant and the resignation tendered by him was out of desperation, but he did not receive any reply nor he was permitted to meet the Director General.