Honble BALIA, J.–This appeal is directed against the judgment of learned single Judge dated 25.7.1997. The writ petition filed by the respondent-petitioner was accepted by learned Single Judge by which Annex.5 dated 31th Jan., 1991, striking off the name of petitioner from Unit w.e.f. 31.01.1991 with immediate effect, and the show cause notice dated 11.1.1991 in pursuance of which termination order took place, were quashed.

(2). The respondent-petitioner was working as a Sweeper with the Boarder Security Force and was posted in 73 Battalion. He proceeded on sanctioned leave from 10.10.1990 to 29.10.1990. However, he did not report on duty after expiry of sanctioned leave. After show cause notice was issued, he applied for extension of leave on medical ground upto 30.01.1991. As per the petitioner, he had come to the office on 31.01.1991 after remaining absent from duty for the period including the period as alleged in the application for extension of leave but he was not taken on duty and was handed over the letter of dismissal from service on 31st Jan., 1991.

(3). The learned Single Judge allowed the writ petition by holding that no enquiry was held nor any report has been put before the Commandant thus the provisions of Rule 22 of the B.S.F. Rules has not been complied with. Learned Single Judge was of the opinion that proper opportunity of hearing should be given to the respondent-workman. Therefore, the show cause notice was set at naught. Consequently, the termination order was also set aside.

(4). It is submitted by the appellant-non-petitioners that the petitioner did not report on duty after expiry of sanctioned leave on 29.10.1999. Vide Annex.R/1 dated 18.12.1990, he was asked to join his duty as he was being treated absent and vide another letter dated 11.1.1991 Annex.R/2 the petitioner was informed that because of absence without leave, the retention of the petitioner is not desirable in service and, therefore, show cause notice was given that why his service may not be terminated. He was required to submit his reply by 25th Jan., 1991. However, no reply was submitted. His services were terminated vide Annex. 5 dated 31.1.1991 and appeal against the same was also dismissed on 10.04.1991. It was stated by the respondent that enquiry contemplated under Section 62 of the B.S.F. Act had been conducted after completing the enquiry in terms of Rule 22 of the B.S.F. Rules, the service of the petitioner were terminated.

(5). Reliance was placed on Annexure R/2, the show cause notice, however, learned Single Judge opined that enquiry under Rule 22 was not held in the manner prescribed inasmuch as according to the learned Single Judge, no report has been put before the Commandant nor the Commandant has made any report in the letter of show cause notice Annex. R/2. It is submitted that to proceed under Sec. 62, under which declaration from service of from duty is required to be made, for such declaration a court of enquiry must be held.

(6). The learned Single Judge was further of the view that the case of the petitioner is that he actually started on 27.1.1991 for reporting on duty at Karanpur and had reached in Karanpur on 29.1.1991 and in any case had actually reported for duty on 30.1.1991 but was not allowed to join on that date, there seems to be some truth in the submission of the petitioner that he has not received the show cause notice. Had he received show cause notice like Annex R/2 even though Annex. R/2 is vague and not in accordance with the rules, his conduct would have been different.

(7). The learned counsel for the appellant has pointed out that Section 62 of the B.S.F. Act is a procedure provided for declaring a person deserter from Security Force and then to suffer the consequence as a deserter. Desertion from B.S.F. tentamounts to an offence. On the other hand to face removal from service on alleged misconduct is governed by Rule 22. Under Rule 22 of the B.S.F. Rules only show cause notice is required to be give

Click Here to Read the rest of this document