( 1 ) THE Petitioner has sought the quashing of the impound order, annexure P-6 dated 9. 7. 1994, dismissing him from service.

( 2 ) PETITIONER was enrolled in Border Security Force as Constable on 5. 9. 1989. After completing the basic training, on 18. 6. 1990 he was posted at 209 Bn. , Border Security Force. He went on casual leave with effect from 29. 10. 1993 to 18. 11. 1993 and overstayed leave. It is respondents case that despite notices the petitioner failed to re-join his duty. Though a telegram was sent by him that he was seriously ill, neither any medical documents were submitted, nor petitioner reported to the unit. The following show cause notice was served upon the petitioner on 15. 4. 1994:

"whereas you have been overstaying without leave w. e. f. 24th Nov. 1993 I am of the opinion that because of this overstay without leave of such a long period, your further retention in service is undesirable. I, therefore, tentatively propose to terminate your service by way of dismissal.

WHEREAS, if you have anything to urge in your defence against the proposed action, you may do so before 5th May 1994. In case no reply is received by that date, it shall be presumed that you have no defence to put forward against the proposed action and ex parte decision shall be taken in this regard.

( 3 ) AFTER the aforementioned notice was served upon the petitioner two letters dated 25. 4. 1994 and 22. 5. 1994 were sent by the petitioner saying that he was undergoing treatment at Civil Hospital and was recovering and will resume duty on 25. 5. 1994. Petitioner did not join duty on 25. 5. 1994. Again, the petitioner was asked to join duty. When no intimation was received from the petitioner the following order was passed on 9. 7. 1994 by the Commandant of 109 Bn. Border Security Force:

"whereas, I have gone through the case of overstay from leave in respect of No. 89622978 Constable Ajaib Singh of the unit. He was given an opportunity to show cause vide this office letter No. Estt/137/osl/109/94/4776 dated 15. 4. 94 and No. 578-79 dated 10. 6. 94 which he had availed of. I am satisfied that No. 89633978 Constable Ajaib Singh is overstaying without leave w. e. f. 19th Nov. 1993 without any reasonable cause and that his further retention in service is undesirable. I, therefore, dismiss him from service with effect from 9-7-94 (FN) in terms of Section 11 (2) of the BSF Act, 1968 read with Rule 177 of BSF Rules 1969. (2)Period of absence from 19. 11. 1993 to 8. 7. 94 (AN) be treated as `dies Non . (3)A sum of Rs. 492-98 (Rupees four hundred ninety two and ninety eight paise) only being the cost of deficient clothing items be recovered from the amount of the individual lying as UD with unit cashier/cm and be deposited into Govt. treasury and balance amount if any be remitted to the individual concerned. (4)The individual is struck off the strength of this unit with effect from 9th July 94.

( 4 ) THE aforementioned order is under challenge on numerous grounds, including the one that the same is contrary to the provisions of the Border Security Force Act and the Rules framed thereunder and the same has been passed without complying with the procedure prescribed under the law.

( 5 ) WE have heard counsel for the parties and been taken through the record.

( 6 ) A bare reading of the contents of the show cause notice and the impugned order would show that the misconduct of absence from duty without leave was one of the grounds on which the petitioner s service was sought to be dispensed with. In the show cause notice in addition it was also alleged that the petitioner s retention in service was undesirable. The impugned order has been passed by way of penalty for misconduct of absence from duty without leave or in other words overstaying the leave w. e. f. 19. 11. 1993 without any reasonable cause. In addition the impugned order also says that the further detention of the petitioner in service was felt undesirable since he had overs