IMPORTANT POINT
The court established that disciplinary authorities have the jurisdiction to dismiss personnel for unauthorized absence, provided due process is followed as per the governing statutes.

JUDGMENT :

DEBANGSU BASAK, J.

1. Appeal is at the behest of a writ petitioner and directed against an order dated January 24, 2024 passed in W.P.A. No. 11780 of 2021. Appellant as the writ petitioner assailed the order dated April 26, 2021 passed by the DIG/PSO for Inspector General, Ftr HQ BSF, Meghalaya, confirming an order of dismissal from service of the appellant passed by the Commandant, 11th Battalion of BSF at Shillong, in the writ petition. By the impugned order the writ petition of the appellant was dismissed.

2. Learned advocate for the appellant submits that the, appellant was unfairly treated by the authorities. He refers to the earlier order of dismissal from services and submits that, the same was set aside by the High Court. Authorities failed before the Supreme Court also. He submits that, the authorities although allowed the appellant to rejoin his duties, did not take into account the medical condition of the appellant and his wife while passing the fresh order of dismissal from services. He refers to the conduct of the parties and the orders of the writ Court passed from time to time.

3. Learned advocate appearing for the appellant refers to Rule 173 of the Border Security Force Rules, 1969 and submits proviso to Rule 173 (8) takes away the power of the Court of Enquiry to decide on unauthorized absence. He also refers to Section 19 of the BSF Act, 1968 and submits that in respect of absence without leave, Security Force Court is required to be constituted. Therefore, the order of dismissal passed on the basis of the order of the Court of Enquiry was wholly without jurisdiction.

4. Learned advocate appearing for the BSF authorities draws the attention of the Court to Section 62 of the BSF Act, 1968. He submits that, enquiry into absence without leave can be made by a Court of Enquiry which was done. BSF authorities proceeded in accordance with law in dismissing the appellant from his services. He submits that, the provisions of the Statute will prevail over the Rules.

5. Learned advocate appearing for the BSF authorities submits that the Act and the Rules read together allows the authorities to invoke Rule 22 for dismissal or removal of person other than an officer on account of misconduct. In the present case, Rule 22 was invoked read with Section 11 of the Act.

6. An order of dismissal from service was initially passed against the appellant on July 4, 1998. Such order was challenged in a writ petition being W.P. No. 10019 (W) of 2000. The learned Single Bench allowed such writ petition by an order dated June 13, 2002. Division Bench upheld the order of the learned Single Judge on July 6, 2015. Special Leave Petition directed against the order dated July 6, 2015 was dismissed on July 7, 2017. Appellant was reinstated in service by a letter dated October 13, 2017. He resumed duties on October 2, 2017. Appellant was granted extra ordinary leave from January 3, 2019 to January 18, 2019. Appellant applied for extension of such leave which was rejected. He was asked to resume duties by several letters. Appellant made repeated representations for extension. However, a Court of Inquiry proceeding was instituted against the appellant for overstaying the leave granted. A Show Cause Notice was issued to the appellant on May 10, 2019. Thereafter, appellant joined his services on May 31, 2019. Appellant came on leave on August 10, 2019. Appellant became ill and applied for grant of resignation. Appellant filed a second writ petition being W.P. No. 17061 (W) of 2019 which was disposed of by an order dated November 25, 2019 directing the authorities to consider the representation of the appellant. Appellant submitted a representation dated December 2, 2019. A second show cause notice was however issued on November 30, 2019. Appellant filed the third writ petition being W.P. No. 24031 (W) of 2019 which was disposed of by an order dated January 24, 2020. Authorities disposed of the representation dated December 2, 2019 on Februa