Dismissal for desertion disproportionate for long-serving employee overstaying leave due to illness with prior intimation, absent proper inquiry; substitute with deemed discharge upon 20 years pensionable service, no back wages.

JUDGMENT :

Sandeep Sharma, J.

Petitioner herein is aggrieved of order dated 07.11.2016 (Annexure P-16), whereby representation having been filed by the petitioner in terms of order/judgment dated 28.04.2016 passed by this Court in CWP No. 177 of 2009, titled Mahender Singh vs. Union of India and others, came to be rejected.

2. Precisely, the facts of the case, as emerge from the pleadings adduced on record by the respective parties, are that on 10.12.1988, petitioner joined the Indo-Tibetan Border Police Force (ITBP) as Constable General Duty. On 13.12.2005, petitioner, while on active duty, met with an accident, while travelling from Barsar to Head Office at Ludhiana, as a result of which, he remained admitted in the Hospital at Ludhiana for treatment of Neuro problem. Besides above, petitioner was also diagnosed as a patient of Tuberculosis, for which he was subsequently treated in the Army Hospital, Dehradun. On 13.01.2006, petitioner proceeded on 30 days’ sanctioned leave w.e.f. 13.01.2006 to 10.02.2006. Vide communication dated 10.02.2006 (Annexure P-2), petitioner applied for extension of leave beyond 30 days, but such prayer of him was not considered. Since petitioner failed to join duty within the stipulated time, respondents issued office memorandums, thereby cautioning the petitioner to join his duty at the first opportunity, but despite his having received office memorandums, as have been placed on record as Annexures P-4 & P-5, petitioner failed to join duty. Consequently, the respondents issued show cause notice dated 20.05.2006 to the petitioner (Annexure P-7), thereby informing that on account of continuous absence from the service, he had been declared as “deserter” from service w.e.f.15.02.2006, however, one more opportunity is afforded to him to report back on duty at 13th ITBP Police Force, P.O. Barsar, West Siyang (Arunachal Pradesh) within 15 days of publication of the notice in the daily newspaper, failing which, he would be dismissed from the service under the provisions of ITBP Rules and Act. Since despite issuance of aforesaid show cause notice, petitioner failed to resume duty, respondents vide office memorandum dated 12.06.2006 (Annexure P-8) again called upon him to report for duty within a period of 15 days from the date of receipt of notice, but fact remains that petitioner failed to join, as a result whereof, the disciplinary authority vide order dated 10.07.2006 (Annexure P-9), dismissed the petitioner from the service.

3. After passing of order dated 21.06.2006, petitioner, vide communication dated 12.07.2006 (Annexure P-10), apprised the authorities that on account of his ill-health, he was unable to report before the authority and, vide aforesaid communication, he requested the authorities to constitute a Medical Board for his examination. However, such request of him was rejected vide communication dated 02.08.2006 (Annexure P-11)on the ground that petitioner is no longer employee of ITBP, as he stands dismissed from the service and as such, there was no occasion, if any, to constitute Medical Board.

4. Petitioner, being aggrieved and dissatisfied with the order of dismissal, preferred an appeal under Section 168/169 Chapter XIII of the ITBP Rules, 1994 before the Director General, I.T.B.P. (Annexure P-13), but same was dismissed vide order dated 18.11.2008 (Annexure P-14). In the aforesaid background, petitioner approached this Court by way of CWP No. 177 of 2009, titled Mahender Singh vs. Union of India and othe