Disciplinary proceedings must adhere to procedural rules and ensure fairness to the employee.

JUDGMENT :

1. The petitioner was working as a constable in ITBP and was granted 10 days leave with effect from 06.03.2002 to 19.03.2002 vide order dated 05.03.2002. It is stated that during the period of leave, the wife of the petitioner, who had already lost three children, suffered medical complication during the period of her pregnancy and as the petitioner was not in a position to leave his wife, the petitioner sent telegrams for extension of leave due to unavoidable circumstances. It is also stated that the petitioner was a resident of border area as the house of the petitioner was located within five kilometers of the border and the Army authorities had issued an order to all the residents residing within five kilometers of the border to leave the area and some time was also consumed for shifting his family to the safe location. The petitioner claims that when the condition of his wife started improving, he joined his duty on 25.05.2002 and submitted a representation dated 29.05.2002 demonstrating the reasons of his over staying the leave. The petitioner also claims to have submitted the medical certificates to the respondents.

2. It is averred in the petition that the respondents decided to proceed against the petitioner on the allegation of the petitioner’s over staying the leave for 66 days without sufficient cause and framed the charge-sheet under Section 21 of ITBP Force Act. The petitioner has alleged that the respondents did not conduct any enquiry as required under the ITBP Force Rules and without affording any opportunity of hearing to the petitioner, dismissed him from the service vide order dated 12.08.2002.

3. The petitioner filed an appeal under Rule 168 of ITBP Force Rules against the order of his dismissal and specified the reasons of his over staying the leave. The Deputy Inspector General i.e. respondent No. 4 vide order dated 27.09.2002 rejected the appeal preferred by the petitioner, thereby maintaining the order of the respondent No. 5. It is urged by the petitioner that the respondent No. 4 neither assigned any cogent reason while dismissing the appeal nor personally heard the petitioner before deciding the appeal preferred by the petitioner.

4. The petitioner through the medium of the present writ petition has not only impugned the orders dated 12.08.2002 and 27.09.2002 passed by the respondent Nos. 5 and 4 respectively but has also prayed for quashing of the departmental proceedings conducted by the respondents against the petitioner. The petitioner has further sought issuance of directions to the respondents to consider the case of the petitioner for his reinstatement & to allow him to perform his duties as a Constable and further to restrain the respondents from treating the period with effect from 12.08.2002 till the date of joining the duty, as break in the service.

5. The petitioner has complained that the respondents without conducting any enquiry and affording any opportunity of hearing to the petitioner as required under the ITBP Force Rules, has dismissed him from the service. It is further urged that the respondents directly framed the charge against the petitioner, whereas in terms of the provisions of the ITBP Force Rule Nos. 171 to 177, an enquiry was required to be conducted. It is further contended that no offence report was prepared under Rule 43 of the ITBP Force Rules (though wrongly mentioned as Rule 43 of the BSF Rules in the petition). The further grievance of the petitioner is that the respondents have not prepared any record of evidence as required under Rule 50 of the ITBP Force Rules. In a nutshell, the stand of the petitioner is that the respondents have not followed the mandate of ITBP Force Rules while proceeding against the petitioner and dismissing him from the service.

6. Response stands filed by the respondents, stating therein that various acts of indiscipline were committed by the petitioner during his service career of seven years and six months with the Force. It is fu