Non-compliance with statutory provisions and principles of natural justice led to the quashing of the dismissal order and the rejection of the appeal.

JUDGMENT :

B.R. Sarangi, J.

1. The petitioner, who was working as constable in Border Security Force in 47th BN, Boarder Security Force (BSF) of South Bengal Frontier (SBF), has filed this application seeking to quash the order of punishment of dismissal from service w.e.f. 07.05.2010 under Annexure-6, for unauthorized absence, and consequential order passed by the appellate authority confirming the same in Annexure-5 dated 04.09:2012 respectively.

2. The factual matrix of the case, in hand, is that the petitioner by following due process of selection was appointed as constable in 47th BN, Boarder Security Force (BSF) of South Bengal Frontier (SBF) on 05.07.1998 having personal number as 98098135. He was discharging his duty assigned to him as per the deployment order issued by the competent authority. While he was on deployment at Jammu, he was granted leave for 15 days from 11.01.2010 and was to join in service on 01.02.2010. The petitioner, while availing the leave on his village, suffered from infective hepatitis and was hospitalized from 28.01.2010 till 11.05.2010, therefore he could not join duty on 01.02.2010. He was declared fit by the medical officer of Unit-4 Government Hospital, Bhubaneswar on 11.05.2010. Soon after recovery, he submitted his joining report on 15.05.2010 along with the medical certificate, but he was not allotted duty rather he was intimated by his authority that he has been dismissed from service on 07.05.2010 (F/N). Against the said order of dismissal, the petitioner preferred appeal and he was assured of an inquiry, but his appeal was rejected by a cryptic order on 27.08.2010. Against rejection of his appeal, the petitioner preferred W.P.(C) No. 12792 of 2010, which was disposed of by this Court, vide order dated 07.05.2012, directing the appellate authority to rehear the matter and pass a reasoned and speaking order within a period of three months from the date of communication of the order after dealing with all the points raised by the petitioner by giving opportunity of hearing to the petitioner; But the Deputy Inspector General rejected the appeal on 04.09.2012 in Annexure-5. Hence this application.

3. Dr. A.K. Mohapatra, learned Sr. Counsel appearing along with Mr. S.C. Sahoo, learned counsel for the petitioner contended that action of the authorities in passing the impugned order of dismissal from service in Annexure-6 dated 7.05.2010 and consequential order of the appellate authority in Annexure-5 dated 04.09.2012, after remand from this Court, is illegal and arbitrary. It is contended that the authority, while passing the order of dismissal from service, has not followed Rule-22 of Border Security Force Rules, 1969 (hereinafter referred "Rules, 1969"), thereby the order of dismissal cannot sustain in the eye of law. It is further contended that the Dy. I.G., who has passed the consequential order in appeal in compliance with the remand order dated 07.05.2012 passed by this Court, is not the appellate authority, and as such, the order passed by him for I.G., BSF is without jurisdiction, contrary to the provisions of law and also violates Rule-28-A of Rules, 1969.

To substantiate his contention, reliance has been placed on the judgments of the apex Court rendered in the case of M/s. R.B. Shreeram Durga Prasad and Fateh chand Nursing Das v. Settlement Commission (IT & WT), (1989) 1 SCC 628 ; Chhel Singh v. M.G.B. Gramin Bank Pali, AIR 2015 SC 598 ; Chamoli District Cooperative Bank Ltd. v. Raghunath Singh Rana, AIR 2016 SC 2510 ; and judgment of this Court rendered in the case of Golak Chandra Swain v. Union of India, 118 (2014) CLT 250.

4. Per contra, Mr. B. Nayak, learned Central Government Counsel justifies the order of dismissal passed by the disciplinary authority on 07.05.2010 and stated that the petitioner having remained in discipline service could not have remained unauthorized leave for more than 94 days beyond the command issued to him. It is further contended that the petitioner had g