Continuous unauthorized absence and failure to respond to show cause notices justified administrative termination under Section 11(2) of the BSF Act.

PRADEEP NANDRAJOG, J

1. Exercising power conferred by Rule 22 read with Rule 177 of the BSF Rules and Section 11 (2) of the BSF Act, after serving a show cause notice upon the petitioner, his services were terminated.

2. On the subject whether such administrative termination was recognized by law, as per decision dated March 21, 2006 dismissing WP(C) 6577/2002 Ct. Akhilesh Kumar v. D.G.BSF & Ors. it was observed by a Division Bench of this Court as under:-

“Considering the facts and circumstances of this case we are of the considered opinion that ratio of the aforesaid decisions of this Court as also of the Supreme Court are squarely applicable to the facts and circumstances of this case as in the present case also the independent power vested in the Commandant under Section 11(2) read with Rule 177 was exercised after issuing show cause notice to the petitioner in terms thereof. Therefore we hold that no further inquiry was required to be held in view of the fact that the petitioner has failed to file any reply to the show cause notice and to deny the allegation in the process.

In a recent decision of the Supreme Court in State of Rajasthan and Another v. Mohammed Ayub Naz reported in 2006 I AD (SC) 308 the Supreme Court after referring to many other precedences has held that absenteeism from office for prolong period of time without prior permission by the Government servant has become a principal cause of indiscipline which have greatly affected various Government services. It is also held that in order to mitigate the rampant absenteeism and wilful absence from service without intimation to the Government the Government has promulgated a rule that if the government servant remains willfully absent for a period exceeding one month and if the charge of willful absence from duty is proved against him, he may be removed from service. The Supreme Court held that the order of removal from service passed in the said case was the only proper punishment to be awarded in view of the fact that Government servant was absent from duty for long period without intimation to the Government. Ram Pal (supra) is also a case where action was taken by the respondents under the provisions of Section 11(2). In the said decision it was held that once a show cause notice is issued recording tentative opinion as required, nothing further was required to be done in the said case as the employee did not reply to the notice. Therefore it was held that as there was no denial of the allegation nor was there any request for holding an inquiry, therefore the action taken is justified.

Facts of the said cases are similar to the facts of the case in hand and therefore we are bound by the ratio of the aforesaid decisions which laid down the law. In terms of the said decisions, we have no other option but to hold that the petitioner has failed to make out any case for interference under Article 226 of the Constitution. We find no merit in the petition and the same is dismissed.”

3. Facts of aforesaid case were that the petitioner therein had continuously absented himself from duty and in spite of call up notice issued did not report back. On his own he came back and was awarded punishment for an offence under Section 19 (b) of the BSF Act and the period of absence was regularized. There were past instances of unauthorized absence. He repeated the misdemeanor of once again absenting himself from June 1, 2000 and once again call up notices were issued as also the apprehension roll. He was neither found in his house nor he responded to the notices. A show cause notice was thereafter issued at his permanent address requiring him to respond as to why on account of continued unauthorized absence and thus his further retention in service being undesirable, his services be not terminated. No reply was received resulting in services being terminated.

4. As regards the instant writ petitioner the record would reveal that he joined service as a temporary Constable