Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Cal) 209

IN THE HIGH COURT AT CALCUTTA
Amrita Sinha, J.
Sudip Kumar Pal - Petitioner
Vs.
The Union of India & Ors. - Respondent
WPA No. 28953 of 2023
Decided On : 27-04-2026

Advocates:
Advocate Appeared:
For the Petitioner: Mr. Surajit Samanta, Adv. Mr. Sukhendu Banerjee, Adv. Mr. Balai Lal Sahoo, Adv. Mr. Dilip Kumar Mandal, Adv. Ms. Sohini Samanta, Adv.
For the Respondents: Mr. Ashok Kumar Bhowmik, Adv. Ms. Tanusree Ghosh, Adv.

Unauthorized absence in a disciplined security force, when persistent or habitual, constitutes misconduct. Disciplinary authorities may terminate employment provided that the accused is given adequate opportunity to defend themselves and the decision is based on established, non-arbitrary service records.

Headnote:(A) Service Law - Dismissal from service - Unauthorized absence from duty - Principles of natural justice - Adherence to disciplinary procedures.

(B) Misconduct - Interpretation of wilful absence - Obligation of the disciplinary authority to establish the wilful nature of absence in departmental proceedings - Weightage of past conduct and service records in professional discipline - Scope of judicial review in matters pertaining to security personnel. (Paras 6, 7, 8, 20, 28).

Facts of the case:
The petitioner, a member of a security force, remained absent from duty beyond the authorized period of leave. Despite the issuance of multiple notices and the initiation of an inquiry, the petitioner failed to report for duty or provide a valid justification. Consequently, the disciplinary authority passed an order of dismissal, citing instances of habitual unauthorized absence and the undesirable nature of the petitioner's continued service.

Findings of Court:
The court found that the disciplinary authority acted in accordance with the relevant rules. Evidence indicated that the petitioner was given sufficient opportunities to resume duty and provide explanations. The claims regarding the violation of natural justice were unsubstantiated, as the petitioner failed to demonstrate any efforts to obtain or review the inquiry documents. Given the petitioner's history of professional indiscipline, the decision to remove the petitioner from service was deemed legally sound.

Issues: Whether the absence constituted misconduct justifying dismissal and whether the disciplinary proceedings violated the principles of natural justice.

Ratio Decidendi: In a disciplined force, unauthorized absence without justification, particularly when committed by a habitual offender, constitutes misconduct. Disciplinary authorities are empowered to dismiss members where repeated indiscipline indicates that further retention is contrary to service standards, provided that procedural fairness and opportunities for defense are extended.

Result: Petition dismissed.

Table of Content
1. arguments concerning procedural fairness and willful misconduct definitions. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9)
2. respondent provided factual evidence of habitual absence. (Para 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18)
3. discipline remains paramount for armed force members. (Para 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27)
4. no procedural violations or jurisdictional errors identified. (Para 28 , 29 , 30 , 31)
5. evidence confirms willful absence constitutes professional misconduct. (Para 32 , 33)
6. writ petition dismissed due to lack of merit. (Para 34 , 35 , 36)

Judgment :

Amrita Sinha, J.

1. The order passed by the Deputy Inspector General (PSO), South Bengal Frontier, Border Security Force dated 23rd June, 2023 affirming the order of dismissal dated 4^th February, 2023 passed by the disciplinary authority against the petitioner is impugned in the instant writ petition.

2. Submission of the petitioner is that the appellate authority lacked the jurisdiction to either decide or pass any order in the appeal preferred by him. Malice both in law and in fact has been pleaded. Prayer has been made to set aside the impugned order of dismissal and the affirmation thereof and to reinstate the petitioner in service with all consequential benefits.

3. It has been submitted that the documents relied upon by the authority, especially the proceeding of the Court of Inquiry, were never supplied to the petitioner. He was not aware of the contents of the said documents. Violation of principle of natural justice has been alleged.

4. It has been contended that though the petitioner produced documents in support of not joining service immediately on completion of his leave period, the authority in hot haste passed the order of dismissal.

5. Learned advocate for the petitioner submits that the petitioner reported to duty on 4^th February, 2023 as per his commitment made in writing and handed over to the representative of the authority who visited his house to enquire about his overstaying of leave, but the authority passed the order of dismissal on 4^th February, 2023 itself without allowing the petitioner to re-join duty.

6. It has been submitted that the provision of Rule 22 (2) of the Border Security Force Rules, 1969 has not been complied with by the authority. It has been contended that there was no occasion on the part of the authority to invoke the aforesaid provision to initiate proceeding against him.

7. It has further been argued that without a proper finding that the petitioner wilfully absented from duty, the order of dismissal on the ground of misconduct cannot be supported in law. It has been contended that without specific finding by the authority that the absence is wilful, the employee cannot be held guilty.

8. In support of such submission, learned advocate for the petitioner relies on the order passed by the Hon’ble Supreme Court in the matter of Krushnakant B. Parmar vs. Union of India & Anr. reported in (2012) 3 SCC 178 wherein the Hon’ble Court held that in a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is wilful. In the absence of such finding, the absence will not amount to misconduct.

9. According to the petitioner, as there is no finding either by the disciplinary authority or the appellate authority that the absence of the petitioner or his overstaying of leave was wilful, the same cannot be treated as misconduct and the dismissal on such ground is liable to set aside.

10. Learned advocate representing the respondents opposes the prayer of the petitioner. The affidavit filed on behalf of the respondents mentions that the petitioner took leave from 19^th October, 2022 to 28^th October, 2022. He was supposed to join duty in the forenoon of 29th October, 2022. The petitioner failed to report on the due date. As per procedure, three letters dated 7^th November, 2022, 14^th November, 2022 and 22^nd November, 2022 was