JUDGMENT :

Heard Mr. R. Mazumdar, learned counsel appearing for the writ petitioner. Also heard Ms. B. Sarma, learned Central Govt. Counsel appearing for the respondents.

2. The writ petitioner herein, who is an ex-Border Security Force (BSF) Constable, has approached this Court by filing the present writ petition assailing the order dated 12.11.2009 passed by the Commandant of the 27th Battalion, BSF, dismissing the petitioner from service inter-alia contending that the provisions of Rule 173(8) of the Border Security Force Rules, 1969 has not been followed in this case and therefore, the impugned order as well as the enquiry proceeding which had commenced on 05.09.2009 stands vitiated in the eye of law.

3. The facts of the case, in a nutshell, are that the petitioner had joined as a Constable in the BSF in the year 2004. While in service, the petitioner had to avail 15 days casual leave with effect from 01.06.2009 to 20.06.2009 with two days in between viz. 7th and 14th June being Sundays and 18th to 20th of June being the joining period. The petitioner claims that he was not keeping well on being diagnosed of being suffering from hepatitis, associated with malaria and was advised bed rest for the period till 12.12.2009. However, the Commandant i.e. the respondent No.4 was of the view that the petitioner had overstayed his leave and accordingly, ordered a One-Man Court of Enquiry so as to enquire into the reason for such over stay. The Court of Enquiry assembled on 05.09.2009 and after examining five witnesses and 11 documents, had come to an opinion that the petitioner may be declared as a deserter and disciplinary action be initiated against him including issuance of apprehension rule for recovery of the I-Card. Consequently, follow up action was initiated which had culminated in the order of dismissal from service dated 12.11.2009. The appeal preferred by the petitioner against the order of dismissal from service was rejected by the appellate authority by order dated 07.12.2010 pursuant whereto, the petitioner had submitted a representation before the Director General of BSF viz. respondent No.2 on 109.01.2011. However, the said representation was not entertained by the respondent No.2 on the ground that the matter was already closed. Situated thus, the petitioner has approached this Court by filing the instant writ petition.

4. Mr. Mazumdar, learned counsel for the petitioner has argued that the proceedings in the Court of Enquiry was conducted without serving any notice or giving the petitioner an opportunity of being heard in the matter and hence, the same was in clear violation of the provisions of Rule 173(8) of the BSF Rules, 1969. Contending that the case of the petitioner is covered under the decision of this Court rendered in the case of Satish Kumar (Force No.970027836 Ex ASI/Ministerial) vs. Union of India and others reported in 2018 Legal Eagle (GAU) 780 wherein, a similar procedure adopted against another BSF Constable in violation of Rule 173(8) of the Rules 1969 was set aside by the learned Single Judge and a direction was issued to reinstate the constable back in service with liberty to initiate de novo Court of Enquiry against the delinquent. Mr. Mazumdar submits that since the proviso to Rule 173(8) was inserted with effect from 25.11.2011, the same would not have any retrospective application in this case in view of the fact that the Court of Enquiry was commenced on 05.09.2009 i.e. before the insertion of the proviso.

5. Ms. B. Sarma, learned Central Govt. Counsel appearing for the respondents has invited the attention of this Court to the statements made in the counter-affidavit in paragraph 6 and submits that in the present case a notice was issued to the petitioner but despite receipt of the same he did not reply to the notice sent by the authorities. As such, the ratio of the law laid down in the case of Satish Kumar (supra) would not be applicable in this case. The learned Central Govt. Counsel has als