The main legal point established is the consideration of proportionality in imposing dismissal as a penalty, taking into account the circumstances and unblemished career of the appellant.

ORDER :

(R. Mukhopadhyay, J.)

Upon hearing the learned counsel for the respective sides, the Court made the following order :

2. This appeal is directed against the order dated 19.10.2022, passed in W.P.(S) No. 149 of 2009 whereby and whereunder the prayer of the appellant for quashing of the order no. Adm/2051/dismiss/2007/1967-1716 dated 7.4.2007 issued under the signature of the Officer Commandant TC and BSF Hazaribagh dismissing the appellant from service on the ground of being absent from duty has been rejected.

3. The factual aspects of the case reveal that the appellant was appointed in the service of Border Security Force on 5.8.2000 and was posted as a constable in 31 BH BSF attached with Jazz Band of TC & 5 BSF Meru Camp Hazaribagh.

4. The appellant was granted leave for ten days for the period 29.08.2006 to 09.09.2006. Since the appellant did not join, vide letter dated 25.09.2006, the Staff Officer (Adm) TC & S BSF Hazaribagh had directed the appellant to join, failing which disciplinary action was sought to be initiated under the BSF Act & Rules. Several letters followed directing the appellant to join his duty. Since the appellant continued to remain absent, a one Man Enquiry Committee was constituted to enquire the circumstances, under which the appellant was absent from duty without leave with effect from 16.09.2006 (AN). The One Man Enquiry Committee had submitted a report pursuant to which a show cause notice was issued to the appellant on 5.2.2007 for his proposed dismissal from service. Vide letter no. ADM/205/dismiss/2007/1997-1716 dated 7.4.2007, the Officer Commanding had struck off the appellant’s name from the strength of 31 BN BSF & TC & S BSF, Hazaribagh with effect from 7.4.2007.

5. It is the case of the appellant that being unaware about the order of dismissal passed against him he came to resume duty and on coming to know about the letter dated 7.4.2007, he had filed an application stating the entire facts before the Commandant BSF Maupat East Khashi Hills Meghalaya as also before the Director General Border Security Force, Lodhi Road, New Delhi but such application of the appellant was rejected by the Inspector General, BSF, Meghalaya vide letter no. F/No.26/5/08 ESTT/SHG/B 763. The act of the respondents in dismissing the appellant from service and rejection of his representation by way appeal prompted the petitioner to move this Court in W.P.S. No.149 of 2009, which, however, was dismissed vide order dated 19.10.2022.

6. Assailing the impugned order dated 19.10.2022, passed in W.P.S. No. 149 of 2009, Mr. Atanu Banerjee, learned counsel for the appellant, has submitted that the appellant had completed more than 6 years in service without any complaint whatsoever and since during the period the appellant was granted leave, he had lost his mental balance and also had become traceless, for which the father of the appellant had intimated the police. The delay on the part of the appellant in resuming duty was neither deliberate nor intentional. It has further been submitted that considering the past record of the appellant even if the concerned respondents were of the opinion that no sufficient cause has been given by the appellant in absenting from duty without intimation, the same also would not have attracted a punishment of dismissal. Learned counsel submits that in similar circumstances in the case of Yasodhar Kamat Vs. Director General, Border Security Force and Others, reported in 2020 SCC OnLine SC 134, the Hon’ble Supreme Court taking into consideration the factual aspects of the said case had substituted the order of dismissal from service by replacing it with discharge from service with effect from the date on which the said applicant completes pensionable service of 20 years.

7. Mr. Shiv Kumar Sharma, learned Central Government Counsel, has submitted that the impugned orders clearly reveal that the appellant had absented from duty without leave and without intimating the concerned officers