The main legal point established in the judgment is that the dismissal order must adhere to the provisions of the Border Security Force Act, 1968 and the Border Security Force Rules, 1969, and failure to do so may result in the quashing of the dismissal order.

ORDER :

1. The petitioner- Aziz Ahmed (Now dead) and substituted by his wife, namely, Shaziya (present petitioner) invoked the extraordinary writ jurisdiction of this Court enshrined under Article 226 of the Constitution of India, for quashment of order of dismissal of his services being No.Estt/Disc/Dismissed/1148/2002/2240-490 dated 19.04.2002 (for short “the order impugned”) issued by the respondent No. 5 herein for a further relief to issue direction to the respondents to reinstate the petitioner and also to treat his period of absence from duty as on duty and release his salary with all consequential benefits to which he is entitled thereto.

2. The facts under the cover of which the instant petition came to be filed and as are stated in the petition are that the petitioner came to be appointed as Washer-man in the Border Security Force (for short “BSF”) on 18.03.1989 under No. 891414696 and after undergoing training at STC Jodhpur, the petitioner came to be posed in 141 Bn. at Jodhpur whereafter the petitioner came to be posed in STC BSF, Jodhpur and subsequently transferred to 194 Bn. and lastly was posted in the then State of Jammu & Kashmir, and while serving the BSF efficiently and honestly earned various rewards.

3. It is next stated that the petitioner came to be granted 60 days leave with effect from 05.09.2001 to 03.11.2001 on account of the illness of his mother and while availing said leave, the petitioner suffered mental disorder and had to remain under the treatment of a Psychiatrist and after recovering from the said ailment upon being certified by a doctor in terms of a certificate dated 15.03.2003, certifying therein the petitioner to be mentally fit to resume the duties, the petitioner came to know that a show cause notice had been issued by the respondent 5 herein bearing No.Estt/THQ/194/2002/1089-91 dated 19.02.2002, stating therein that he is of the opinion that because of absence of the petitioner without leave, his retention in the force is undesirable and thus tentatively proposed to terminate the services of the petitioner and that though on account of his ailment, the brother of the petitioner had informed his unit about his ailment, respondent No. 5 yet issued the notice dated 19.02.2002 and that even the respondent No. 5 herein came to be informed about the ailment of the petitioner by his brother after the issuance of a notice dated 19.02.2002.

4. It is next stated that after recovering from his ailment, the petitioner approached the unit for resuming his duties on 18.03.2003, however, was not permitted to enter the unit and came to be informed that he stands dismissed from the services.

5. It is being further stated that the petitioner was never served with order of termination except the proposed termination notice dated 19.02.2002.

6. It is being next stated that the petitioner had been dismissed by the respondents from the service without conducting any inquiry under the provisions of the Border Security Force Act, 1968 (for short “the Act of 1968”) and the Border Security Force Rules, 1969 (for short “the Rules of 1969”).

7. Objections to the petition have been filed by the respondents wherein the petition is being opposed inter-alia on the premise that the petitioner has mis-stated and mis-represented the facts and that admittedly the petitioner was working as a Washer-man in the BSF having been appointed on 18.03.1989 and after completion of his training came to be posted in 141 Bn. and lastly deployed in Srinagar on internal security duty while working in the said battalion and that the petitioner had been habitual in overstaying the leave granted to him previously as well though the said overstaying of leave had been later on regularized.

8. It is being further stated that the petitioner initially came to be granted 60 days earned leave on 05.09.2001 for his sister’s marriage with a direction to report back to duty on 04.11.2001, in which he failed and infact overstayed with effect from 05.11.2