The nature of punishment should consider the reasons for overstay and be proportionate to the offense.

DEEPA SHARMA

1. Aggrieved by the order of his dismissal from service, the petitioner, a Head Constable/GD in ITBP (who overstayed his leave) has invoked the jurisdiction of this court challenging the said order on the grounds that it was passed without affording any opportunity to him and that the overstay was not wilful and that the authorities had failed to consider his compelling family circumstances including the illness of his mother of which she died on 17.04.2013 while imposing the penalty of dismissal. Reliance is also placed on Krushnakant B. Paramar vs. Union of India 2012 (3) SCC 178.

2. The brief facts relevant for the purpose of disposal of the writ petition are that the petitioner had proceeded on sanctioned leave from 26.10.2012 to 27.12.2012 but had overstayed without any intimation/information and was dismissed from service on 01.04.2013 after a Court of Inquiry. The contention of the petitioner is that he had reported for duty on 23.05.2013, but was denied. He thereafter gave a legal notice dated 29.09.2013 and filed W.P.(C) 5688/2013 which was disposed of with certain directions to the respondents. On failure of the respondents to comply with all those directions, a Contempt Case (Civil) No.8181/2013 was filed and it was then that the copy of the ex-parte departmental proceedings were supplied to him. He approached the appellate authority i.e. Deputy Inspector General, SHQ (Barreilly), ITBP, under Rule-28 of ITBP Rules, 1994 and his appeal was dismissed vide order dated 19.03.2014 on the ground of delay. Petitioner then filed revision petition dated 09.04.2014 against the order of the appellate authority. He again approached this court in W.P.(C) 4426/2014 and the said writ was disposed of with a direction to the respondents to decide the Revision Petition dated 09.04.2014 by a reasoned order. The revision petition was finally dismissed by the Revisional Authority vide impugned order dated 21.08.2014.

3. The contention of the respondent is that when the petitioner overstayed his sanctioned leave of 60 days and did not report for duty, two letters dated 04.01.2013 and 11.02.2013 were sent by registered post at the address of his home town, asking him to report for duty, but he failed to honour the letters. An apprehension roll was issued. A Court of Inquiry was ordered under Section 74 of Indo-Tibetan Border Police Force Act, 1992 (hereinafter referred to as ‘the ITBP Act’) to enquire into the circumstances of his absence from leave without permission/leave from competent authority. On the basis of the Court of Inquiry, he was declared a deserter, copy of which was sent to the petitioner at the address given by him in his leave application. Thereafter, a Show Cause Notice was issued and sent by registered post and also published in the newspaper in circulation in the area where the petitioner was residing during his leave period (the address was disclosed by him in his leave application). When no communication/explanation was received from the petitioner, he was dismissed from service under Rule 17 and 20 of ITBP Rules, 1994. Copy of dismissal order was also sent by registered post at his given address. It is also urged that earlier on five occasions (details of which are given in the impugned order dated 21.08.2014) he had overstayed his leave period for which he was suitably punished and since it was his sixth misconduct of the same nature, the penalty of dismissal from service was imposed.

4. On hearing the rival contentions and considering the record it is clear that the plea of petitioner of denial of opportunity of being heard during the Court of Inquiry is of no consequence in view of the facts that the respondents had done their best to communicate with the petitioner but could not succeed. All the letters were sent at the address supplied by the petitioner himself in the leave application i.e. Village Khedi Sundiyana, P.O.Sisoli, Tehsil-Budhana, Distt-Muzaffar Nagar (Uttar Pradesh). It is the cas