Dismissal from service upheld as lawful under the BSF Act due to unauthorized absence and lack of due process claims by the petitioner.

JUDGMENT :

1. The petitioner has filed this petition seeking quashment of Order No.1071/Estt/Dismiss/99/6806-24 dated 10.07.1999 issued by the Commandant, 102 Bn., respondent No.5 herein, whereby he has been dismissed from service with effect from 10.07.1999 and the period with effect from 13.02.1999 to 09.07.1999 was treated as dies non. The petitioner is also seeking quashing of Order No.13/82/2003-Rectt/BSF/02-05 dated 01.09.2003 issued by the Director General of BSF, respondent No.2 herein, whereby the appeal filed by the petitioner came to be rejected. The petitioner is also seeking a direction to the respondents to allow him to resume/perform his duties as a Washerman on which post he had been working prior to his dismissal from service.

2. The facts-in-brief, as gathered from the file, are that the petitioner was appointed as a Washerman on 17.02.1991 and was posted in 136 Bn. Sunderbani. Thereafter, the petitioner remained posted at different places. It is contended that in November, 1998 a fire had broken in his house and the wife of petitioner got serious burn injuries. The petitioner was granted two months leave on 13.11.1998. However, in January, 1998 the wife of petitioner expired due to serious burn injuries. It is averred that since there was no one to look after the three children after the demise of his wife and since he too was not keeping good health, he applied for extension of leave. The respondents vide order dated 25.02.1999 extended 15 days leave with effect from 13.02.1999 to 27.02.1999. It is averred that as the petitioner was not well, he again applied for extension of leave. However, the respondents did not extend the leave of petitioner, instead, vide order dated 24.03.1999 directed him to report for duty. It is averred that since there was none to look after the three children and as the petitioner too was not well, he again applied for extension of leave, but respondent No.5 vide Order No. 1071/Estt/Dismiss/99/6806-24 dated 10.07.1999 dismissed the petitioner from service with effect from 10.07.1999 and the period with effect from 13.02.1999 to 09.07.1999 was treated as dies non. It is averred that the petitioner could not file the statutory appeal in time because of his ill health. When his health was recovered, he filed the statutory appeal before the Director General of BSF on 03.06.2003. However, the same came to be rejected by him vide Order No.13/82/2003-Rectt/BSF/02-05 dated 01.09.2003. Hence, the present writ petition.

3. Objections have been filed on behalf of respondents. It is averred that on completion of 85 days leave of petitioner, vide letter dated 04.03.1999 he was directed to report for duty. Again vide letter dated 24.03.1999 he was directed to report back to his duties along with all medical documents, but neither the petitioner reported back nor any communication was received from him. Accordingly, after 30 days of absence without leave, a court of inquiry as provided under Section 62 of the BSF Act was conducted and finalized on 24.05.1999 appending the remarks of Commandant 102 Bn. BSF. Thereafter, as per Sections 60 and 61 of the BSF Act, an apprehension roll was issued through District Magistrate, Jammu on 24.05.1999, but was of no effect. Thereafter, a show cause notice giving him opportunity to put his stand for his prolonged overstayed leave was served upon the petitioner on 10.06.1999, which he did not avail. It is averred that after giving reasonable time when no response either in writing or through other means was received on behalf of the petitioner nor the petitioner resumed his duty, the respondents dismissed him from service with effect from 10.07.1999 (FN). It is further averred that since the petitioner neither reported for duty nor any response was received from him, as such Summary Security Force Court trial of petitioner was impracticable and he was dismissed from service under Rule 177 of BSF Rules, 1969.

4. Learned senior counsel appearing for petitioner argu