A dismissal order passed by a competent authority in accordance with the provisions of the Border Security Force Act and Rules is valid, even if the employee was absent from duty due to illness, if the employee fails to provide evidence to support the claim of illness and fails to respond to a valid show cause notice.

This writ appeal is directed against the order dated 2.11.1995 passed in Civil Rule No. 2539 of 1995 by alearned Single Judge of this Court, whereby the above civil rule was dismissed.

2. Facts of the case in brief are that - the writ appellant-petitioner was a Constable in the Border Security Force hereinafter referred to as the BSF. On 16.4.1991 the writ appellant was sent on duty to Morigaon but he did not report and he was found absent without permission. Thereafter, a Court of Enquiry was held as provided under section 62 of the Border Security Force Act, 1968, for short the Act. In spite of issuance of notice to him, the petitioner did not appear before the Court of Inquiry. The Court of Inquiry after examining the witnesses and records held that the appellant has remained absent without any a intimation and as such he is deemed to be a deserter. He was therefore dismissed from service. The petitioner feeling aggrieved, approached this Court challenging the order of dismissal and the learned Single Judge rejected the prayer of the petitioner-appellant and dismissed the writ.

3. In this case, there is no dispute at the Bar that the appellant remained absent form duty since 17.4.1991 to till the order of dismissal. The appellant claims that during these period he was suffering from Tuberculosis and undergoing treatment at Mangaldoi and he sent information to this effect to the authority concerned. The petitioner has also filed some copies of medical certificates but there is absolutely no material on record to show that any information whatsoever was sent by the appellant to the authority concerned. So far as the medical certificates are concerned, which are annexed as Annexure 2 to Annexure 10 of the writ petition, we find that all these certificates are dated 6.4.1993 and in Annexure 8 and 9 it is stated that the appellant was under treatment since 23.4.1993. Learned counsel for the appellant has fairly submitted that the appellant was not an indoor patient.

4. Before the learned Single Judge it is submitted that the order of dismissal was not passed by a competent authority and there is violation of section 11 (2) of the Act. The provision of section 11 (2) is to be read with the corresponding Rules and Rule 177, provides that a Commandant is competent to dismiss a Constable. The law stands well settled in the case of Gouranga Chakrabarty vs. State of Tripura, (1984) 3 SCC 314. As regards the question whether the power under section 11 (2) of the Act could be exercised without holding an enquiry, the learned Single Judge has held that the Court of Inquiry was in fact held as provided under section 62 of the Act and the proceedings of the Court of Inquiry were placed before the learned Single Judge. The said proceeding has also been made available to us during the course of hearing.

5. The learned counsel for the respondent Union of India has submitted that a show cause notice was issued to the appellant but the later preferred to remain silent and refused to respond to the show cause notice. The show cause notice reads as follows:

“Registered with AD No.Estt/JCN/193 Bn/92/6028 16 Nov. 1992.

Tac HQ 193 Bn BSFC/o56APO

N0.81922015CT

Jitendra Chandra Nath

Vill: Nawgaon Post: Aulachowka

Via: Mangal Dai

Dist: Darrang (Assam)

Subject: Show cause notice

You have absented without leave with effect from 17.04.1991 (FN). I am of the opinion that because of the absence without leave for such a long period, your further retention in service is undesirable. I, therefore, tentatively propose to terminate your service by way of dismissal. If you have anything to urge in your defence or against the proposed action, you may do so before 18th December' 1992.

In case no reply is received by the date, it will be inferred that you have no defence to put forward.

Sd/-MKSarkar

Commandant, 193 BN BSF. 16 Nov. 1992.

6. Learned counsel for the Union of India further submits that the facts and b circumstances of the present case are more o