Dismissal without adherence to natural justice principles and statutory procedures is invalid, necessitating reinstatement of the employee.

JUDGMENT :

BRIEF FACTS OF THE CASE :

1. The petitioner, through the medium of the instant petition, has called in question Order bearing No. Estt/Dism/7221/38BN/2008/1562-75 dated 4th February, 2008 passed by Respondent No.3 and has also prayed for summoning of the record from the respondents-office. Besides, the petitioner is seeking a Writ in the nature of Mandamus directing the respondents to reinstate the petitioner in his original position and pay him all the service benefits as accrued to him with effect from 4thFebruary, 2008 till date with all consequential benefits, which are due to him since 2007.

ARGUMENTS ON BEHALF OF THE PETITIONER :

2. It is submitted by the learned counsel for the petitioner that the petitioner was appointed as Cook in Border Security Force on 23rd March, 1996 and he proceeded on leave with effect from 5thJune, 2007 to 22nd July, 2007. The petitioner belongs to a far-flung area of Tehsil Karnah District Kupwara. It is the specific case of the petitioner that when the petitioner reached his home town, all of a sudden, the health of the petitioner deteriorated and the petitioner was accordingly, admitted to Sub District Hospital Tangdar Karnah on 15th June, 2007 and accordingly, he was advised to take bed rest.

3. The further case of the petitioner is that the Order of his dismissal, which has been issued by the Respondent No. 3 i.e. Commandant 37 BN C/O 56 APO, received by him on 9th March, 2008 was passed without issuing any show cause notice to the petitioner and without providing him an opportunity of being heard. The further case of the petitioner is that the petitioner had filed a detailed representation before the respondents, narrating therein whole situation, which has been faced by the petitioner as well as by his family members, wherein the petitioner has pleaded that he, as well as his family members, was receiving threats from the militant organizations. He further submits that the Respondent No. 3 has issued a communication to the petitioner on 7th April, 2008 through registered post, wherein Respondent No.3 has rejected the representation of the petitioner without providing any opportunity of being heard to the petitioner.

4. It is the specific case of the petitioner that the petitioner was a patient of depression and was under supervision of doctors adjacent to his native place i.e. Sub District Hospital, Tangdar, Karnah, and the petitioner was admitted in District Hospital, Tangdar, Karnah from 15th June, 2007 to 26th February, 2008 and according to the petitioner, the doctors had declared him as a case of “OAC Depression Neurosis” and thereafter, the petitioner was discharged from the said Hospital on 26th February, 2008.

5. The further case of the petitioner is that the petitioner had filed another representation before the Respondent No.2 for his reinstatement, which was also rejected vide communication dated 25th March, 2010 by the competent authority, being devoid of any merit.

6. It is the specific case of the petitioner that the respondents have not complied with the provisions of the Border Security Force Act, 1968 (for short the Act of 1968) and the rules framed there-under and that the order impugned has been passed is in flagrant violation of Rule 22 of the Border Security Force Rules, 1969 (for short the Rules of 1969) and that too without providing any opportunity of being heard to the petitioner and without issuing any show cause notice to the petitioner.

7. The learned counsel for the petitioner has vehemently argued that the respondents ought to have exercised the power under Section 19 of the Act of 1968 with particular reference to Section 19 (b) of the Act of 1969.

8. The learned counsel submits that Section 19 of the Act of 1968 deals with absence without leave and any person subject to this Act, who commits any of the offence as reflected in the said Section from 19(a) to 19(g), shall suffer imprisonment for a term, which may extend to three years or such less