Devinder Gupta, J. (Oral) - (1.) Order, Annexure P-3/A, dated 27.1.1993 dismissing the petitioner from service with effect from 16th January, 1993 is under challenge in this petition.
(2.) The petitioner while posted as a Constable in Border Security Force proceeded on 30 days Earned Leave w.e.f. 9th May, 1992. After availing of leave he did not report for duty though he ought to have reported for duty on 9.6.1992. Petitioner's case is that he had applied for extension of leave due to his sickness whereas respondents case is that extension of leave was not sought. Respondents' version that on 16.7.1992 an intimation was sent to the petitioner to rejoin duty immediately, failing he was apprised that disciplinary action would be taken against him. Thereafter a Court of Inquiry under Section 62 of the Border Security Force Act, 1968 was ordered to inquire into the absence of the petitioner, but without awaiting the outcome thereof, it appears that the Deputy Inspector, Border Security Force, Jammu proposed to dismiss the petitioner from service administratively for which show cause notice (annexure P-3) was sent to the petitioner under registered post, which reads: "You have been absent without leave with effect from 9th June 1992. I am of the opinion that because of this absence without leave for such a long period, your further retention in service is undesirable. I, therefore, propose to dismiss you from service. If you have anything to urge in your defence or against the imposition of this penalty, you may do so before 14 January 1993. In case no reply is received by that date, it would be inferred that you have no defence to put forward."
(3.) Petitioner state that a reply was sent by him on receipt of the aforementioned show cause notice explaining the cause of his delay that he was still bed-ridden and sought extension of leave but the Commandant on 7.1.1993 proceeded to pass in the impugned order annexure P-3/A, which reads: "Whereas, I have personally gone through the case of absence without leave in respect of No. 85005244 Const (Dvr) Sudesh Kumar of this HQ. He was given an opportunity to show cause vide this HQL/No. 0124/Estt.I/Leave/92/3029 dated 30 Dec. 92 without any reasonable cause and his further retention in the service is undesirable. I, therefore, dismiss him from service w.e.f. 16 Jan. 1993 (AN) under BSF Act, 1968 read with Rule 177 of BSF Rule 1969. The period of unauthorised absence from duty from 9 June 1992 to 16 Jan. 1993 be treated as `dies non'. The individual is struck off the strength of this HQ w.e.f. 16 Jan. 1993 (AN). 2. A sum of Rs. 329.82 (Rupees three hundred twenty nine and paise eighty two only) as Govt. dues on account of deficient kit/clothing items be recovered from his pay and allowances due/payable to him.";