The main legal point established in the judgment is the mandatory nature of procedural requirements in dismissal cases, emphasizing the need for compliance with Rule 22(2) of the BSF Rules, 1969 and the opportunity for the person subject to the Act to defend himself as per Rule 173(8).

S.N. Jha, J.-This special appeal is directed against the order of the learned Single Judge dated 110.2005 in

S.B. Civil Writ Petition No. 1374 of 1994 allowing the writ petition of the respondent. The respondent had filed the writ petition for quashing the order dated 20.04.1991 by which he had been dismissed from service, and for direction on the respondents to reinstate him with all consequential benefits-amount other reliefs.

2. The respondent was enrolled as a Water Carrier in the Border Security Force (BSF) on 210.1988 as posted in HQ 80 Bn. In 1990 the battalion moved to Srinagar. On 18.07.1990, the respondent was granted 30 days leave from 19.07.1990 to 17.08.1990. According to the respondent, in course of journey he developed high fever and reported at the BSF Hospital at Jammu Tawi where he was admitted on 20.07.1990. He was discharged from the hospital on 23.07.1990 with diagnosis of pyrexia. He continued treatment in his village but his condition did not improve and he was diagnosed as a case of Bil Kochs Chest (TB). Pursuant to his request to extend leave on medical ground, he was informed that medical rest was being given from 19.08.1990 to 18.09.1990 whereafter he should report for duty with fitness certificate. The respondent however was advised further treatment and he applied for sick leave for another thirty days from 19.09.1990 to 110.1990 alongwith medical certificate. On 010.1990 he submitted another application to grant sixty days medical/half pay/earned leave. According to the respondent he was advised medical rest for successive periods. On 011.1990 he was asked by the appellants to either return to the battalion headquarter or in the alternative to report at the nearest BSF hospital for necessary treatment. He reported at the BSF Hospital Jodhpur. After investigation he was referred to TB Hospital for further treatment from 112.1990 to 14.01.1991. He was advised to consult the TB specialist at S.P. Medical College & Associate Group of Hospitals, Bikaner where he was treated for TB. He was advised further medical leave for successive periods from 15.01.1991 onwards.

3. On 01.04.1991 notice was issued to the respondent informing him that he had been absent without leave from 18.08.1990; he had produced medical certificates upto 212.1990 but was still absent without any justification. He was informed that because of his absence without leave for such a long period, his further retention in service was undesirable, and the authority i.e. Commandant 80 Bn. proposed to terminate his service by way of dismissal. If he wanted anything to urge in defence, he could do so before 20.04.1991. In case no reply is received by that date, it would be inferred that he had no defence to offer.

4. Case of the respondent is that on 15.04.1991 he sent reply to the said notice stating therein that he had been advised treatment and medical rest upto 22.04.1991 for which he had already sent medical certificates, he requested the authority not to proceed with the contemplated action till he is given an opportunity of hearing. He reported at the transit camp, Jammu on 24.04.1991. Finally, he arrived at his battalion in late night on 26.04.1991. 27th and 28th April, 1991 being holidays, he was interviewed by the Commandant on 29.04.1991 and told that as no reply to the show cause notice had been received before 20.04.1991, he had been

dismissed from service with effect from 20.04.1991.

5. Stating these background facts in the writ petition the respondent urged that his dismissal from service without holding any enquiry into the absence was unjust, unfair and unconstitutional, and violative of the statutory provisions; the impugned order, therefore, deserved to be set aside.

6. In their reply, the appellants stated that a Court of Inquiry had been constituted vide order No. 4515-17 dated 210.1990 to inquire into the circumstances of respondents overstaying his leave. After completing the enquiry, the Court of inquiry gave