Dismissal from service must be proportionate to misconduct; long service and mitigating circumstances warrant reconsideration of disciplinary actions.

Order :

(ARUN MONGA, J.)

1. Having rendered 25 years of service in the Border Security Force, which safeguards the nation's frontiers, the petitioner, an ex-constable, is before this Court seeking enforcement of his legal rights. He, inter alia, seeks issuance of a writ of certiorari to quash his dismissal order dated 27.11.2014, which was passed on the ground of his alleged misconduct i.e. remaining absent from duty for 238 days without sanctioned leave.

2. Petitioner has preferred both the above titled writ petitions. In SBCWP No.2348/2007, he impugns the show cause notice dated 20.12.2006, which proposed his reversion to the post of Class-IV Employee. Subsequently, by an order dated 27.11.2014, he was dismissed from service which is the subject matter of SBCWP No.3246/2015. The petitioner seeks quashing of both the impugned orders, along with all consequential reliefs, including reinstatement to the post of Constable with full pecuniary benefits and continuity of service.

Case set up by petitioner.

3. It is deemed appropriate that the prayer clauses of both the petitions be seen first. For ready reference, the same are reproduced as under:-

"SBCWP No.2348/2007

It is, therefore, humbly and respectfully prayed that this writ petition of the petitioner may kindly be allowed:-

(A) By an appropriate writ order or direction the respondents may kindly be restrained from reverting the petitioner from present rank of constable (General duty) to previous rank Class IV (Enrolled follower/Cook).

(B) By an appropriate writ order or direction, the notices issued for reversion and any other consequential orders for reverting the petitioner may kindly be quashed and set aside.

(C) By an appropriate writ order or direction the respondents may kindly be directed to condone the training for the petitioner to continue on the post of Constable as he has been deputed since 1992.

SBCWP No.9246/2015

It is, therefore, humbly and respectfully prayed that this writ petition of the petitioner may kindly be allowed and by appropriate writ order or direction:

(1) The impugned order dated 27-11-2014 (Annx.39) and the appellate order dated 15-01-2015 (Annexure-43), 22-01-2015 (Annexure-44), 07.02.2015 (Annexure-45) and 11-02-2015 (Annexure-46) may kindly be quashed and set aside and petitioner may be allowed to continue at his present place of posting and the impugned orders may be given effect as if it was never passed against the petitioner.

(2) That the respondent may kindly be directed to allow the petitioner to join as constable in the 102 Battalion BSF BaikhuntpurSalugara District Jalpaiguri West Bengal with all consequential benefits.

(3) That the respondent may kindly be directed to considered the medical leave of the petitioner and continue the petitioner on the post of constable w.e.f. 01-08-2014.

(4) That respondent may kindly be directed to initiate the disciplinary proceedings along with the civil and criminal proceeding against the private respondent.

(5) That the respondent may kindly be directed to the release the salary of the petitioner from the month of April 2014 onwards with all consequential benefit.

(6) That the respondent may kindly be directed to obtain the petitioner's things (Two Suitcase, two box, two attachi, one laptop, one mobile, uniform and civil dress etc) from the private respondent and delivered to the petitioner or in alternative directed to the private respondent to give the Rs.1 lack to the petitioner.

(7) That in the alternate prayer the respondent may kindly be directed to retire the petitioner as per their application w.e.f. 30-04-2014 with all consequential benefits."

4. For sake of brevity, facts are being taken from the later of the petitions, filed in the year 2015, since the events prior thereto are covered in the former one filed in the year 2007.

4.1. The petitioner was appointed as a Cook on 15.06.1989. He was re-mustered as a Constable in August 1992. After completing three months of basic training in 1990, he was confirmed a