Compliance with the procedure for serving notices and show cause notices is essential under the Border Security Force Act and Rules.

1. This appeal is directed against the judgment and order dated 02.01.2009 passed by the Writ Court in SWP No. 2247/2002, whereby the writ petition filed by the writ petitioner came to be allowed quashing the order of his dismissal from service with effect from 31.01.2001 (hereinafter, for short, impugned judgment), on the grounds taken in it.

2. The facts in brief are that the writ petitioner was enrolled as a Constable in the BSF on 24.05.1983. Vide order dated 11.01.1999 the writ petitioner was posted to 05th Bn. BSF, accordingly, he was relieved on 16.04.1999. But, instead of joining in the said battalion, the petitioner opted to remain absent till 17.05.1999 when his posting order to 05th Bn. came to be cancelled with a direction to him to resume his duty in 71 Bn. BSF through registered post. However, the writ petitioner at his will resumed his duties in the said battalion on 02.08.1999 after absenting himself without leave for a period of about 108 days, for which he was summarily tried and was awarded severe reprimand. Thereafter, the writ petitioner filed SWP No. 95/2000 questioning the order dated 17.05.1999 by virtue of which his posting order to 05th Bn. came to be cancelled. The writ petition came to be dismissed vide judgment dated 09.04.2001, the appeal (LPASW No. 223/2001) too tiled against the said judgment met with the same fate and came to be dismissed on 17.04.2002. Meanwhile, the writ petitioner proceeded on 15 days casual leave with effect from 11.10.1999 to 30.10.1999. He was to resume his duties on 01.11.1999, but when he did not join his duties, he was directed to resume his duties vide three registered post letters on 04.11.1999, 18.11.1999 and 07.12.1999. When he failed to do the needful, Court of Inquiry, as warranted under the provisions of Section 62 of the Border Security Force Act, 1968 (hereinafter, for short, the Act), was conducted vide order dated 07.12.1999 and completed by the Presiding Officer on 27.12.1999 recommending issuance of apprehension roll and a show cause notice to the writ petitioner. Thereafter the writ petitioner made three communications dated 28.12.1999,15.01.2000 and 20.01.2000 expressing his inability to join his duties on account of pain in his left leg.

In communication dated 15.01.2000 he even stated that he has filed a writ petition in this Court for cancellation of his posting and till the decision arrives in the said matter he would not join his duties. After considering the response of writ petitioner, he was served with a show cause notice on 07.09.2000 under Rule 22 of the Border Security Force Rules, 1969 (hereinafter, for short, the Rules) at the address given by him when he was enrolled in the BSF and when he applied for 15 days leave, i.e., H.No.642-A, P.O. Gandhi Nagar, District Jammu (J&K). However, the respondent failed to respond; consequently, vide order dated 31.01.2001, he came to be dismissed from service in terms of Section 11(2) of the Act read with Rule 177 of the Rules. The said order was even published vide Unit Order No. Estt/71Bn/Dismiss/2001/915-1025 dated 31.01.2001. Feeling aggrieved, the writ petitioner filed an appeal before the Director General, Border Security Force against his dismissal order. However, during the pendency of said appeal, he filed SWP No. 2247/2002 questioning his dismissal order. The Writ Court allowed the same vide the judgment, impugned herein, holding that the appellants while dismissing the writ petitioner from service did not comply with the procedure as required under Rule 22 of the Rules. It was further held that it was the duty of inquiry officer as well as appellants to ensure service of show cause notice upon the writ petitioner at the given address and, in case the address was not available, then Order 5 Rule 17 of the Code of Civil Procedure had to follow.

3. We have heard learned counsel appearing for the parties and are of the considered view that the reasoning given by the Writ Court is not