BALRAJ SINGH Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) Impugned in this petition is Order No.21/10/2003-Estt/BSF/7207- 7407 dated 23.06.2004 issued by the respondent No.5, whereby the petitioner has been dismissed from service with immediate effect. The petitioner also prays for a direction to the respondents to consider his case for reinstatement on the post of Sepoy, which he was holding at the time of issuance of order impugned.

(2.) The factual matrix of the case relevant to the determination of issues raised in this petition is that the petitioner a resident of Harayana was enrolled as Follower (Cook) on 07.11.1992. Initially, he was posted in 90 Bn BSF and remained there upto 23.04.1997. Thereafter, the petitioner was posted to STC BSF Udhampur where he served upto 30.04.2001. On his transfer from STC BSF, Udhampur, the petitioner joined 153 Bn BSF on 10.05.2001 and remained there till his dismissal on 23.06.2004. The petitioner, when joined the Unit under the command of respondent No.5 was a known case of "PSORIASIS VULGARIS' an ailment, which results in development of plaques on the skin. For the aforesaid ailment, the petitioner was extended all the medical facilities as and when required. He was treated in the Unit MI Room, Frontier Hospital BSF, Jammu and the Government Medical College, Jammu etc. As is discernible from the reply affidavit of the respondents, having regard to the ailment of the petitioner, he was not assigned the duties of his original trade of Cook to avoid humidity and heat. On the application of the petitioner seeking earned leave, the respondent No.5 sanctioned the leave of two days so as to enable him to purchase the medicines and have medical consultation. As is apparent from the application for leave submitted by the petitioner, he indicated his address for correspondence during the leave period as resident of Jahroti, Tehsil Kharkhoda Distt Sonipat, Harayana. The petitioner claims that he applied for extension of leave and sent all requisite documents and medical certificates as the condition of the petitioner was not good. However, the petitioner has not placed on record any such application for extension of leave. When the petitioner overstayed his leave and did not report for joining back in the Unit after the expiry of the sanctioned leave, the respondent No.5 vide his Notice dated 29.09.2003, directed the petitioner to resume his duty forthwith and also informed him that his remaining absent without leave was an offence punishable under Section 19(b) of BSF Act, 1968. Instead of complying with the aforesaid notice and joining back his duty, the petitioner sent an application to the respondent No.5 seeking grant of leave for indefinite period so as to enable him to take treatment from Safdarjung Hospital, New Delhi as outdoor patient. The application was not accepted by the respondents on the ground that the ailment suffered by the petitioner was not serious enough as would incapacitate him to undertake journey nor he has been advised rest by the Doctors. Accordingly, the respondent No.5 advised the petitioner to report to Frontier Headquarters BSF, Jammu and also to bring complete medical documents. The aforesaid direction came to be issued by the respondent No.5 on finding that Specialist of the Safdarjung Hospital, New Delhi too had advised him to continue his treatment from Govt. Medical College, Jammu. The petitioner, however, preferred to visit Frontier Headquarters MI Room and then Safdarjung Hospital, New Delhi for treatment, but, did not report either to the Frontier Hospital, Jammu or Govt. Medical College, Jammu and made request for extension of leave for indefinite period. As is claimed by the respondents, the petitioner did not heed to the advice of respondents and continued to remain absent. The medical documents submitted by the petitioner were verified from the Unit Medical Officer, who, in turn, opined that the petitioner was taking treatment as outdoor patient and the disease of the petitioner was not such as would incapacitate him to undertake the journey from his native place to Jammu/Unit location. The respondents claim that they treated the petitioner absent without any leave and, accordingly, the Court of Inquiry was conducted as per the provisions contained in Section 62 of the BSF Act, which was finalised on 10.02.2004. As per the provisions of Section 60 of the BSF Act, an apprehension roll was also issued to the SSP, District Sonipat, Harayana with the request to arrange apprehension and delivery of the petitioner to the Force custody, who was the accused of committing the offence under Section 19 of the BSF Act, 1968, but, neither the petitioner re-joined his duty nor any intimation regarding the apprehension of the petitioner was received from the Police Authorities. When no such response was received from the Police Authorities, the respondent No.5 issued a Show Cause Notice dated 23.04.2004 calling upon the petitioner to show cause against his proposed dismissal. The petitioner, as is claimed by the respondents, did not respond to the Notice and as a result, the respondents issued another Show Cause Notice dated 03.06.2004. The petitioner was given an opportunity to say anything in his defence against the proposed dismissal from the service, but, he once again failed to avail the opportunity. The competent authority after considering the matter in its entirety concluded that the petitioner had unauthorisedly overstayed the leave without sufficient cause since 21.09.2003, which was an act of indiscipline by a member of the Belt Force and therefore, vide impugned order, the petitioner was ordered to be dismissed from the service. He made a representation to the respondent No.3 for reinstatement, which too was found devoid of any merit and rejected vide No. L/No.202-/Re-Inst/Estt-II/05/470-75 dated 05.01.2005.

(3.) In the backdrop of the aforesaid factual background, the petitioner has challenged the impugned order, primarily, on the grounds that prior to the issuance of Show Cause Notice of proposed penalty, the petitioner was never put to any notice nor was ever called upon to participate in the inquiry, if any, conducted by the respondents. He claims that the whole action was taken by the respondents including conducting of Court of Inquiry at the back of the petitioner, and therefore, the same could not have been made the basis for terminating the services of the petitioner. The petitioner has specifically challenged the impugned order on the ground that it violates the provisions of Rules 60, 61 and 62 of the BSF Act and the Rules framed thereunder. The petitioner claims that had he been given the adequate opportunity of being heard, he would have amply explained his absence, which was neither deliberate nor intentional, but, due to his ill health, which incapacitated him to join back his duty after the expiry of sanctioned leave. He claims that he had time and again been requesting the respondents to grant him extension in leave so that he could join back his duties after getting fully recovered from the disease. The petitioner also claims that he only received one Notice dated 23.04.2004, whereby he was called upon to show cause against the proposed penalty and was also directed to report to the Battalion Headquarters before 31.05.2004.The petitioner submits that in response to the aforesaid Notice, he asked for extension of leave and submitted all the requisite medical documents whereby intimating the respondents that he was still undergoing the treatment. The response of the petitioner was ignored by the respondent No.5, who, acting in a most arbitrate manner, dismissed the petitioner from the service. The petitioner further states that he filed an appeal before the respondent No.3, which was summarily rejected without giving any reason. The petitioner assails the order impugned on the ground that as per the provisions of Section 62 of the BSF Act and the Rules framed thereunder, the petitioner, was supposed to be given a period of thirty days to join. The petitioner also claims that so called Court of Inquiry conducted by the respondents in terms of Section 62 of the BSF Act is also vitiated as the procedure laid down in Rules 170 to 176 of the Rules framed under the BSF Act has not been followed. The petitioner also urges that the punishment awarded to him, even if he is presumed to have overstayed his leave, without permission, is too harsh and disproportionate to the act of misconduct attributed to him.