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2014 Supreme(Del) 1105
High Court of Delhi
PRADEEP NANDRAJOG JAYANT NATH, JJ.
Suresh Kumar
Versus
Border Security Force & Another
W.P. (C) No. 5440 of 2002
Decided On : 16-04-2014
For the Petitioner:Jasbir Singh Malik, Advocate.
For the Respondents:Anjana Gosain, Pradeep Desodya, Arvind Sharma, Advocates.
The main legal point established is the requirement to follow the prescribed procedure for conducting an enquiry before dismissing or removing a person from service under the BSF Act, 1968.
Headnote:
Dismissal - Unauthorized Absence - BSF Act, 1968, Rule 177 - The court discussed the provisions of the BSF Act, 1968 and Rule 177, and the interpretation of the power of the Commandant to dismiss or remove a person from service. The court highlighted the requirement of conducting an enquiry before dismissing or removing a person, and the circumstances under which the prescribed procedure should be followed.
Fact of the Case:
The petitioner, a Constable in Border Security Force, was dismissed from service due to prolonged unauthorized absence. The petitioner claimed to be undergoing treatment for a mental ailment during the period of absence and challenged the dismissal.
Finding of the Court:
The court found that the dismissal was valid as the prescribed procedure for conducting an enquiry was followed. The petitioner's evidence, including a certificate regarding his brother's whereabouts, was deemed unreliable due to timing and inconsistencies.
Issues: The issues involved the validity of the dismissal based on unauthorized absence and the petitioner's claim of undergoing treatment during the period of absence.
Ratio Decidendi: The court held that the prescribed procedure for conducting an enquiry before dismissal must be followed, and the petitioner's evidence was unreliable, leading to the dismissal being upheld.
Final Decision: The petition was dismissed, and the court refrained from imposing costs on the petitioner.
Pradeep Nandrajog, J.
1. The factual backdrop leading to the filing of the above captioned petition is that on August 11, 1988 the petitioner was enrolled as a Constable in Border Security Force.
2. The petitioner availed earned leave due to him in the year 1989 and reported back in time. Thereafter, on several occasions the petitioner overstayed leave or proceeded on unauthorized leave. Put in a tabular form, the data would reveal as follows:-
Sl. No. Period of overstay/unauthorized leave Duration of overstay/unauthorized leave
1. February 23, 1990 to March 01, 1990 Seven days
2. March 12, 1990 to March 19, 1990 Eight days
3. September 21, 1990 to November 06, 1990 Forty seven days
4. January 08, 1992 to January 15, 1992 Eight days
5. June 05, 1992 to June 16, 1992 Twelve days
6. November 21, 1992 to November 24, 1992 Three days
7. December 08, 1992 to December 10, 1992 Three days
8. February 16, 1993 to February 20, 1993 February 16, 1993 to February 20, 1993
9. April 03, 1993 to April 05, 1993 Two days
10. September 24, 1993 to October 07, 1993 Fourteen days
11. November 19, 1993 to December 07, 1993 Nineteen days
12. April 09, 1996 to June 12, 1996 Sixty five days
13. October 17, 1996 to December 07, 1996 Fifty two days
14. February 24, 1997 to April 09, 1997 Forty four days
15. December 05, 1998 to January 27, 1999 Fifty four days
16. July 20, 1999 to July 31, 1999 Twelve days
17. September 20, 1999 to September 24, 1999 Two days
18. April 19, 2000 to June 23, 2000 Sixty six days
19. July 24, 2000 to September 13, 2000 Fifty days
20. October 13, 2000 to October 22, 2000 Ten days
21. November 14, 2000 to January 08, 2000 Fifty six days
22. January 15, 2001 to February14, 2001 Thirty one days
3. The aforesaid leave(s) were regularized by adjusting the earned leave, half paid leave, extra-ordinary leave, extraordinary leave on medical grounds etc. due to the petitioner.
4. As is evident from the afore-noted table, the petitioner remained absent from duty for a period of thirty one days from January 15, 2001 to February 14, 2001. It is the case of the department that armed with some medical documents the petitioner reported for duty on February 15, 2001. In view of the medical documents submitted by him the petitioner was examined at the Unit MI Room. The doctor who examined the petitioner at the Unit MI Room concluded that the petitioner was suffering from Bipolar Affective Disorder and referred him to Institute of Human Behaviour and Allied Sciences (hereinafter referred to as the ‘IHBAS’), Shahdara, Delhi for further treatment, where the petitioner was admitted on February 15, 2001. It is further the case of the department that the petitioner was got discharged from IHBAS by his brother Azad Singh on February 16, 2001.
5. When the petitioner did not join duty after getting himself discharged from IHBAS or was got discharged by his brother nor sent any intimation to the department regarding his absence, call up notices were sent at the residential address of the petitioner on March 09/19, 2001. Petitioner did not respond.
6. An Apprehension Roll was issued with a request to the Superintendent of Police, District Jind, Haryana since the petitioner resided in a village in District Jind, to apprehend the petitioner and hand him over to the Battalion Head Quarter, but no response was received from the police in said regards.
7. A Court of Inquiry was ordered which opined that in the absence of any communication received from the petitioner his absconding amounted to willful absenting from discharging duties i.e. unauthorized absence without sufficient cause. Suitable action was directed to be taken.
8. Since the petitioner had gone missing the Commandant opined that it would not be feasible to try the petitioner at a Security Force Court and thus a show cause notice dated June 02, 2001 was sent to the petitioner at his permanent residential address requiring the petitioner to show cause as to why he should not be dismissed from service. Be
