Point of Law : Court regarding the allegation being of overstay in leave, the impugned order of dismissal is held to be unsustainable in law.

JUDGMENT :

The writ jurisdiction of this Court has been sought to be invoked by the petitioner in respect of an order of dismissal from service dated 18.04.2015. It is the case of the petitioner, who was a Constable (Cook) in the BSF that such dismissal does not have the legal sanctity and has been passed without affording the minimum opportunity to the petitioner. On the other hand, the authorities have contended that there is no violation of the law holding the field and therefore, the impugned action does not sustain from any legal infirmity.

2. Before coming to the issue which has arisen for determination in this case, it would be convenient to state the facts of the case in brief.

3. The petitioner was appointed as a Constable (Cook) in the Border Security Force (BSF) on 24.01.2013 and was posted at 25 Bn. in New Delhi. In the month August-September, 2014, he was posted under the Commandant 57 Bn., BSF, Praharinagar, West Garo Hills, Meghalaya. At that time, the petitioner had availed Casual Leave from 04.10.2014 to 25.10.2014. However, just prior to expiry of the said leave period, the mother of the petitioner had expired and the petitioner claims to have informed about the same to the authorities, subsequent to which, the Casual Leave was cancelled and transformed to Earned Leave from 04.10.2014 to 08.11.2014. The petitioner had projected that on 09.11.2014, he was diagnosed with Typhoid and Jaundice as a result of which, the petitioner was advised bed rest till 29.05.2015 on which date the petitioner was declared to fit.

4. On 30.05.2015, the petitioner had reported back to his place of posting. However, the petitioner has alleged that he was not allowed to join and rather on 28.06.2015 the petitioner had received an order of dismissal dated 14.04.2014. The said order was served upon the petitioner by the concerned Police Station.

5. Against the aforesaid order of dismissal, the petitioner had preferred an appeal on 20.07.2015 and thereafter the preset writ petition has been filed whereafter, on 24.11.2015, the appeal has been dismissed.

6. I have heard Shri R. Mazumdar, learned counsel for the petitioner. I have also heard Shri R.K.D. Choudhury, the learned Assistant Solicitor General of India appearing for all the respondents, who has also produced the relevant records.

7. Shri Mazumdar, learned counsel for the petitioner has opened his arguments by submitting that he could learn from the pleadings, more specifically the affidavit-in-opposition dated 03.03.2016 of the respondent that a Court of Inquiry was constituted on 28.12.2014. To formulate the grounds of challenge, the learned counsel has referred to the following provisions of the Border Security Force Rules, 1969 (hereinafter called the Rules) which are extracted hereinbelow-

“171. Assembly.- A Court of inquiry may be assembled by order of a Commandant or any officer or authority superior to the Commandant.

173. Procedure of Courts of inquiry.-

(i) …..

…..

(8). Before giving an opinion against any person subject to the Act, the Court will afford that person the opportunity to know all that has been stated against him, cross-examine any witnesses who have given evidence against him, and make a statement and call witnesses in his defence.

…

[Provided that this provision shall not apply when such inquiry is ordered to enquire into a case of absence from duty without due authority.]

…..”

8. It is contended that the aforesaid Rules come under Chapter XIV which deals with "Court of Inquiry". By referring to the Convening Order dated 28.12.2014 which is annexed as Annexure R5 in the affidavit-in-opposition, learned counsel for the petitioner has submitted that the said order of convening a Court of Inquiry has been issued by the Deputy Commandant (ADJT). The contention made is that a Court of Inquiry can be assembled only by an order of the Commandant or any Officer / Authority superior to the Commandant. However, in the instant case, apparently the Convening Order has been issued