The appellate authority must exercise its statutory duty quasi-judicially, considering all relevant materials and providing proper reasoning. Failure to do so would vitiate the order.

JUDGMENT :

Heard Mr. O. P. Bhati, learned counsel appearing on behalf of the writ petitioner. I have also heard Ms. B. Sarma, learned Central Government Counsel appearing on behalf of the respondents.

2. The writ petitioner herein had joined the Sashastra Seema Bal (SSB) as a Constable (General Duty) on 22.07.2006 at the 22nd Battalion of the SSB at Ranidanga. After serving at various places the petitioner was posted at Kajalgaon under the 15th Battalion of the SSB at Kajalgaon in the district of Chirang on 19.06.2017. While serving at Kajalgaon, the petitioner had applied for 31 days earned leave w.e.f. 10.01.2019 to 09.02.2019 with permission to avail suffix on 10.02.2019 for medical treatment of his ailing mother, who, at the relevant point of time, was suffering from liver cancer. The mother of the petitioner was residing at his native place in Uttar Pradesh. The leave application of the petitioner was sanctioned and accordingly, the petitioner proceeded on earned leave. However, after the completion of the leave period, the petitioner did not join back in duty. As per the case projected in the writ petition, the mother of the petitioner had to be admitted in Homi Bhabha Cancer Hospital, Varanasi on 07.01.2019 by the family members of the petitioner and though she was subsequently discharged from the hospital, yet, on several occasions, she had to be re-admitted and/or see the doctors for review of her treatment. Not only that, the petitioner’s case is also to the effect that he, with the assistance of his elder sister ,had to take his mother to the Tata Memorial Hospital, Mumbai from time to time for the treatment. Around the same time, the father of the petitioner, who was a heart patient and was overaged, had to be looked after as a result of which, the entire family along with the petitioner was in distress. During that time, notices were sent to the writ petitioner by his employer, while he had failed to respond as a result of which, the petitioner was declared as a “deserter” within the meaning of Section 74 of the Sashatra Seema Bal Act, 2007.

3. The petitioner had admitted that the notices sent by his employer, before issuing the order of dismissal from service dated 17.06.2019, had been received in his village address but since at the relevant point of time the petitioner was frequently travelling to Varanasi and Mumbai and was also under serious mental stress due to the ailment of his mother, he could not respond to the letters/notices issued by the authorities. Subsequently, the impugned order dated 17.06.2019 dismissing the petitioner from service was issued by the Commandant of 15th Battalion of the SSB at Kajalgaon i.e. the respondent No.5.

4. Aggrieved by the order dated 17.06.2019, the petitioner had preferred an appeal by narrating the factual background and the circumstances under which he had failed to either join back in service on expiry of the leave period or to respond to the notices sent by the department. However, by the order dated 18.11.2019, the appellate authority had rejected the appeal and had affirmed the order of dismissal from service. Hence, this writ petition.

5. Mr. O. P. Bhati, learned counsel for the petitioner submits that the punishment of dismissal from service, in the facts and circumstances of the case, is shockingly disproportionate since it is not a case where the petitioner was negligent in reporting back in duty but was unable to do so under compelling circumstances as he was discharging his moral duties by trying to get medical help and physical comfort for his ailing mother. According to Mr. Bhati, the aforesaid aspect of the matter was not at all considered by the appellate authority and to that extent none of the grounds stated in the appeal memo filed by the petitioner was even considered, far less dealt with by the appellate authority in the order dated 18.11.2019. It is also the submission of Mr. Bhati that the appellate authority had passed the order dated 18.11.2019