Equitable conduct and provision of evidence are crucial in exercising jurisdiction under Article 226 of the Constitution of India.

Heard Ms. U. Das, learned counsel for the petitioner. Also heard Shri S.S. Roy, learned CGC appearing for all the respondents.

2. The petitioner has put to challenge the action of the respondent authorities in not allowing him to join his duties as Constable in the Border Security Force (BSF).

3. The facts projected is that in the year 1999, the petitioner was appointed as a Constable and while working in the D’ Coy of the Unit of 124 Battalion BSF Roop Nagar, New Cooch Behar in the State of West Bengal, he fell sick and had accordingly prayed for and was granted earned leave for the period from 25.09.2013 to 24.10.2013. It is the case of the petitioner that after coming to his native place in the district of Barpeta, he had further health problems as a result of which, he could not return for his duty. The petitioner alleges that he had both physical ailment as well as mental ailment for which he was treated.

4. Due to his absence, a show-cause notice was issued on 25.01.2014 directing him to submit his defense. The petitioner claims to have submitted a representation in response to the same which however has not been annexed to the petition. It is submitted that the reason for the same is not being able to trace out the copy of the said representation.

5. Ms. Das, the learned counsel for the petitioner has submitted that after getting the clearance from the Doctor, the petitioner had visited the office of the respondent no. 2 with the necessary medical documents to resume his duties which however was not allowed and rather the petitioner was informed that he was dismissed from service for unauthorized absence. The learned counsel has submitted that the entire action was done behind the back of the petitioner without affording him a reasonable opportunity. The challenge is also based on the grounds of lack of transparency and fairness by which an adverse action has been taken against the petitioner without following the due process of law. The learned counsel accordingly submits that appropriate orders/directions be issued to allow the petitioner to resume his duties in accordance with law.

6. Per contra, Shri Roy, the learned CGC has submitted that the projection made by the petitioner are incorrect both on facts and in law. It is submitted that the petitioner had overstayed his leave and was unauthorisedly absent from duties. He submits that the nature of duties and the organization in which the petitioner was employed, is of utmost importance and directly related to the interest of the country.

7. Though the petitioner was granted Earned Leave from 25.09.2013 to 24.10.2013, he did not report for his duties. By drawing the attention of this Court to the averments made in paragraph 2 of the affidavit-in-opposition filed on 14.06.2018, the learned CGC has submitted that on the issue of the petitioner not having returned for resumption of his duties, various communications by registered post including letters dated 28.10.2013, 08.11.2013 and 16.11.2013 were issued to him which were not replied. Accordingly, as per Section 62 of the BSF Act, a Court of Inquiry was held to investigate the matter. An Apprehension Roll was also issued to apprehend the petitioner on 24.12.2013. However, no response was received from the concerned police authorities. In the Court of Inquiry, it was found that the petitioner was over staying the leave without any valid reasons.

8. Accordingly, a show-cause notice was issued to the petitioner vide registered post on 25.01.2014 by which the petitioner was directed to submit his defense. Though the communication was received, no response was submitted.

9. Shri Roy, the learned CGC further submits that to give a further opportunity, a representative No. 86007276 ASI (GD) P. Bora of the Unit was sent to the residence of the petitioner in his home town to enquire about the petitioner and to ascertain as to whether the petitioner was willing to serve the organization or not. The representative on his visit was how