JUDGMENT :

SANDEEP MOUDGIL, J.

Prayer

1. The present writ petition has been preferred invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, seeking prays for quashing of the impugned order dated 25.06.1996 (Annexure P-5) whereby the petitioner has been dismissed from service while further seeking direction to the respondent-department to reconsider the impugned orders and to re-examine the petitioner’s case with respect to the quantum of punishment imposed.

Factual Matrix :

2. The petitioner was enlisted in the Border Security Force on 16.12.1969 as a Constable (General Duty) and served the Force for several years, including postings in hard areas in Jammu & Kashmir and North-East India. The petitioner availed 45 days of earned leave w.e.f. 31.01.1996 to 18.03.1996 and was required to report back for duty on 19.03.1996. Though the leave was sanctioned vide certificate dated 29.01.1996, the petitioner could proceed on leave only on01.02.1996 due to official requirements.

3. During the leave period, the petitioner fell seriously ill and suffered from severe abdominal pain. He was taken to Primary Health Centre, Kahinjhari, District Kanpur Dehat, a Government Hospital, where he was advised medical rest. Owing to his illness, the petitioner could not rejoin duty on the due date and duly informed the Commandant, 151 Bn BSF, by an application dated 19.03.1996 (Annexure P-2) sent under postal certificate.

4. The petitioner’s condition deteriorated further and he was diagnosed with jaundice and chronic hepatitis, for which he remained under continuous medical treatment and bed rest. He again intimated the authorities vide application dated 06.05.1996. Medical certificates issued by Government hospitals certified that the petitioner was advised complete rest from 18.03.1996 till 24.06.1996 (Annexure P-3).

5. After recovering and obtaining a fitness certificate dated 25.06.1996, the petitioner reported back to the unit, where he came to know that an order dated 25.06.1996 (Annexure P-5) dismissing him from service under Section 11(2) of the BSF Act, 1968 read with Rule 177 of the BSF Rules, 1969 had already been passed ex parte, allegedly in pursuance of a show cause notice dated 10.06.1996, which was never served upon him.

6. The petitioner thereafter submitted a detailed statutory petition dated 24.07.1996 (Annexure P-6) seeking reinstatement, followed by reminders dated 19.11.1996 (Annexure P-7) and 09.08.1997 (Annexure P-8). However, no decision was communicated to him. Believing that legal proceedings were pending, the petitioner waited for several years and later came to know that no case had in fact been filed on his behalf.

7. Left with no alternative, the petitioner submitted a mercy petition dated 15.09.2012 (Annexure P-9). Ultimately, vide order dated 06.12.2012 (Annexure P-10), the said petition was rejected without dealing with the grounds raised by the petitioner, leading to the present cause of action.

Contentions

On behalf of the petitioners

8. Learned counsel for the petitioner submits that the impugned dismissal order dated 25.06.1996 (Annexure P-5) is wholly illegal, arbitrary and violative of the principles of natural justice, as the same was passed ex parte, without service of the alleged show cause notice and without affording any opportunity of hearing to the petitioner.

9. It is contended that the petitioner’s absence from duty was neither wilful nor intentional but was on account of genuine medical reasons duly supported by medical certificates issued by Government hospitals, which were timely communicated to the competent authority.

10. Learned counsel further submits that the petitioner had an unblemished service record spanning more than 26 years, including service in sensitive and hard areas, and there was no justification for imposing the extreme penalty of dismissal.

11. It is argued that the statutory petition and subsequent representations were kept pending for years witho