In this petition, preferred under Article 226 of the Constitution of India read with section 103 of the Constitution of Jammu & Kashmir State, challenge is thrown to an order No. D.IX/Estt-I/19/92/13736-55 dated 28/12/1992, whereby Commandant of 19th Bn. of BSF dismissed the petitioner from service and treated the period effective from 29/09/1992 to 27/12/1992 as `dies non and further challenge is to the order No. 13/68/94-RECTT/BSF/2125-29 dated 23/03/1995 issued by the Ministry of Home Affairs, by virtue of which the representation made by the petitioner for re-instatement, has been rejected by the Additional DY. Director (Estt), as constable in the Border Security Force. Order passed by the Commandant, 19th Bn. of BSF, challenged in the writ petition and referred to above, is being reproduced as under:-

"OFFICE OF THE COMMANDANT 19 BN B.S.F. C/O 56 APO.

No. D.IX/Estt-I/19/92/13736-55 Dated: 28 Dec 92.

ORDER

Whereas, I have gone through the case of absence without leave against No. 89005099 Const DWARIKA NATH MISHRA, D Coy of this unit. He was given opportunity to explain the cause for his prolonged absence vide this office letter No. D.IX/Estt-I/19/92/12804 dated 10 Dec 1992, which he has not availed of. I am satisfied that he is absent without leave without any reasonable cause and that his further retention in the service is undesirable. I, therefore, DISMISS him from service with effect from 28 Dec 1992 (FN) under rule 177 of BSF Rules 1969. His absence period from 29 Sep 1992 to 27 Dec 92 is hereby treated as `DIES NON.

2. Govt dues Rs.1399/- (Rupees one thousand three hundred ninety nine) and Rs.351/- (Rupees three hundred fifty one) Total Rs.1750/- on account of cost of deficient Govt. clothing and equipment and over payment made to the individual on account of pay Oct 92, may be recovered from his pay and allowances, Bonus, TA, RM due to him and deposited in Govt. Treasury.

Sd/-

(G.S. Bal)

Commandant

19 BN BSF"

The grievance of the petitioner is that the order, dismissing him from service, has been passed without holding an inquiry. In precise, his case is that dismissal order is violative of Service Rules, CCA Pension Rules, Laws and By-laws governing his service besides being illegal and arbitrary against all cannons of fair play and natural justice, and that by virtue of said order, respondents have deprived the petitioner from his valuable right of service and, thus, is violative of Articles 14 & 16 of the Constitution of India.

The case of the respondents on the other hand, projected in their reply to the writ petition, is that several opportunities were given to the petitioner to join his duties by sending him numerous communications but he never joined and as such he was dismissed after conducting Court of Inquiry and issuing a show-cause notice, to which he did not respond and file reply.

In order to appreciate the respective contentions of the parties, the facts ,in brief, may be noticed.

Petitioner was enrolled as a Constable in BSF on 24/12/1988. On the completion of his basic training at STC BSF Kharka Camp, Hoshiarpur, Punjab, he was posted in 19th Bn. on 25/12/1989 vide Ftr HQ BSF Jodhpur Signal No. A/4412 dated 21 Sept 1989. The petitioner regularly overstayed the leave during his past service for which he was punished twice; (i) U/S 19(b) awarded 14 days Rigorous Imprisonment in Force Custody; and (ii) U/S 19(a) awarded 28 days Rigorous Imprisonment in Force Custody by the Commandant 19 Bn BSF. The petitioner, however, proceeded on 15 days casual leave w.e.f. 08/09/1992 to 28/09/1992 by making an application on the ground that his mother has expired. The petitioner, however, did not join back after the expiry of the leave. It is stated in the petition that on reaching home, the petitioner learnt that his mother was alive but in serious condition and admitted in hospital at Deoria. He further stated to have applied for the extension of his leave in narrating about the precarious condition of his mother vide app

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