The main legal point established in the judgment is the requirement for adherence to principles of natural justice, particularly the need to furnish all adverse reports to the respondent and provide an opportunity to show cause as per Rule 22 of the Border Security Force Rules.

1. Vide judgment impugned dated 15.05.2009, writ petition of the respondent has been allowed. The order of dismissal dated 18.10.1999 as was against the respondent has been set aside. The appellants have been directed to re-instate the writ petitioner (respondent herein) with all consequential benefits. However, have been left free to hold fresh enquiry. Aggrieved thereof, the Instant Letters Patent Appeal under Clause 12 has been filed.

2. Learned counsel for the appellants would project that the order of dismissal dated 18.10.1999, was passed by the appellant No. 5, after observing the provisions of the Border Security Force Act, 1968 and the Rules (hereinafter for short referred to as "the Act" and "the Rules"). The respondent belonged to a disciplined Force. He was undesirable to be retained in the service, in view of his negligent attitude of remaining absent with impunity, that too without any authorization. Learned counsel has also produced the records so as to support his contention that all procedural safeguards have been observed in letter and spirit.

3. In opposition, learned counsel for the respondent would contend that absence of the respondent was circumstantial. Firstly, he was ailing so required regular medical checkup. Secondly, the respondent is resident of village Chhanni Tana Tehsil Akhnoor situated near the border area. During the disturbance in the month of May/June, 1999, the Government had advised the inhabitants of the village for migration to safer places. Firstly, no punishment was warranted, sec#31;ondly has been awarded disproportionately while observing the Rules in breach. The respondent had also been condemned unheard.

4. For appreciating the controversy, precise factual matrix of the case has to be noticed.

5. Respondent, admittedly, was working as Constable bearing No. 89004797. He had reported to "D" Coy 108 Bn. BSF on 17.10.1998. He had proceeded to Ftr Hospital Jammu for treatment but in the process, was found to have gone to GMC Hospital on various dates in the months of November, December, 1998 and months of January and March of the year 1999. He was directed to report to TAC Headquar#31;ter, which he did not and remained continuously absent without leave with effect from 23rd June, 1999.

6. When the respondent remained absent without leave from 23rd June, 1999, order dated 13th July, 1999 was issued by the Commandant whereunder Sh. Naresh Kumar, Assistant Commandant, was detailed to conduct One Man Court of En#31;quiry to enquire about the absence without leave/over stayal from leave of the two Constables which include the respondent who had remained absent without leave with effect from 23rd June, 1999 (FN). It is provided therein that if a person is found guilty, the Court shall comply with Rule 173 (d) of the BSF Rules.

7. The said One Man Court of Enquiry initiated the proceedings. Despite hectic efforts, the participation of respondent could not materialize, proceedings were concluded in ex-parte. On conclusion thereof, it has been observed that Rule 173 (d) of BSF Rules, could not be complied with as the respondent did not remain present at the time of enquiry.

8. The Commandant, on 14.9.1999, on the basis of the findings of the Court of enquiry, agreed with the opinion then observed that the show cause notice as per BSF Act and Rules be issued to respondent to join duty failing which his services will be terminated under BSF Act and Rules. It is thereafter the show cause notice was issued which reacts as under:-

"Subject: SHOW CAUSE NOTICE

Whereas, you have been absent without leave with effect from 23.06.1999 (FN). I am of the opinion that because of this absence without leave for such a long period, your further retention in service is undesirable. I therefore, tentatively propose to terminate your service by way of dismissal. 02. Whereas, if you have anything to urge in your defence against the proposed action you may do so before 15 Oct 1999. In case no reply is received by