JUDGEMENT

Sanjeev Kumar, J.

1 This intra-Court Appeal is directed against judgment dated 08.06.2012 passed by the learned Single Judge of this Court [„the Writ Court‟] in SWP No. 706/2004 titled „Sandeep Singh vs. Union of India and others‟ whereby the Writ Court has dismissed the writ petition of the appellant.

2 Briefly put, the facts, leading to filing of this appeal are that the appellant came to be enrolled as Constable in Border Security Force [„BSF‟] in April, 1986 and was subsequently promoted as Head Constable on 03.01.2003. He was, however, dismissed from service by the Deputy Inspector General of BSF vide his order No. Estt/SS/DISM/04/186-386 dated 03.01.2004 on the charge of his unauthorized absence from duty for 39 days w.e.f 02.10.2003 to 09.11.2003. Prior to his dismissal from service, the appellant had been awarded three punishments; on two occasions under Section 19 (a) and on one occasion under Section 19(b) of Border Security Force Act, 1968 [„the Act of 1968‟]. The appellant was reprimanded for an act punishable under Section 19(a) of the Act of 1968 for remaining absent without leave w.e.f 01.10.1991 to 02.10.1991. He was administered severe reprimand again for remaining absent without leave w.e.f 08.04.1999 to 06.06.1999. The appellant again overstayed his leave without any sufficient cause by six days w.e.f 05.04.2001 to 24.04.2001 and was awarded severe reprimand yet again.

3 On 02.10.2003, the appellant absented himself from the campus of SHQ-CI OPS Rawalpora without any leave or authority and remained absent for 39 days. He joined back his duty voluntarily on 09.11.2003. During his absence without leave, the respondents vide letter dated 09.10.2003 intimated to the appellant to join duty forthwith and was warned of disciplinary action, should he fail to join forthwith. The appellant, however, joined his duty on 09.11.2003 thereby remaining unauthorisedly absent from duty for 39 days at his own. On joining the duty, an explanation was sought from the appellant to for remaining absent without leave or prior permission of the competent Authority vide letter dated 10.11.2003. The appellant submitted his explanation in writing and submitted that due to his brother‟s death, some relatives had come to meet him and since he was urgently required at his home to complete certain documentary work, as such, he left the campus along with his relatives. The explanation offered by the appellant was not found satisfactory by the competent Authority and, accordingly, a decision was taken to initiate disciplinary action against the appellant under the statutory provisions of the Act of 1968 and the rules framed thereunder.

4 The appellant was attached with 42nd Bn of BSF vide order No. Estt/SHQ CI OPS-I 9798 dated 10.11.2003 issued by the Deputy Inspector General, BSF for disciplinary purpose. The Commandant 42nd Bn., at whose disposal the services of the appellant were placed, heard the petitioner under Rule 45 of BSF Rules, 1969 on 15.11.2003 on the charge of “Absenting Himself Without Leave” under Section 19(a) of the Act of 1968. After hearing the charge, the Commandant ordered Record of Evidence (ROE) by the Deputy Commandant of the Unit vide order dated 19.11.2003. During the Record of Evidence, the appellant was afforded an opportunity to defend himself. The Deputy Commandant Sh. Jai Ram Singh prepared the Record of Evidence.

5 The Commandant 42nd Bn. BSF, after going through ROE under Rule 51 of the BSF Rules, 1969, decided to try the appellant by the Summary Security Force Court (SSFC). After due appreciation of the evidence adduced against the appellant during trial, the SSFC found him guilty of the charge and sentenced him “to be dismissed from service”. The sentence was promulgated to the appellant on 03.01.2004 itself. Feeling aggrieved of the manner in which the proceedings were conducted against the appellant and he was handed down the sentence of “to be dismissed from service”, the appellant filed SWP No. 70