Decided on May 03,2006

AGYA RAM Appellant
UNION OF INDIA Respondents


- (1.) THE facts in brief be noticed as under: - Petitioner was enrolled in Border Security Force on 15th June91, as a Cook. After completion of training, he was remustered as Constable (GD) on 30th May95. He proceeded on one days casual leave on 1st March99 with permission to avail one days gazetted holiday on 2nd March99. He was due to join his duties on 3rd March99 but he did not join and instead sent an application on 18th March99 for grant of 30 days earned leave due to the sickness of his wife without any medical document in support of his claim. His request for grant of said leave was not accepted by the competent authority due to exigency of service. The petitioner was informed at his residential address on 5th March99 vide letter No. Estt/41/Disc/AR/75BN/99/3938 directing him to join the duty. After more than 30 days of absence of the petitioner, a one man Court of Inquiry was ordered on 29th May99 under Section 62 of the Border Security Force Act (here -in -after referred to as the Act). After completion of the Court of Inquiry, a show cause notice was issued to the petitioner through Registered letter dt. 2nd July99, at his home address but the show cause notice was received back un -delivered. Petitioner reported for duty on 24th Aug99 after overstaying for 174 days. Petitioner was arrested as per Rule 36(1)(iii)(d) of BSF Rules, 1969 (here -in -after referred to as rules), for disposal of disciplinary action under Section 19(B) of the rules.After completion of Summary court proceedings, petitioner was dismissed from service. Petitioner impugned order of dismissal in this court in SWP No. 2650/99. The said writ petition was disposed of by observing as under: - "In view of what has been stated above, the respondents are directed to reconsider the issue as to whether the extreme penalty of dismissal was required to be inflicted or the ends of justice would be served by reverting the petitioner to the post which he was occupying earlier to whom he was remustered as a Constable. These are matters on which decision has to be taken by the respondents. They are left free to take a decision. This petition would be treated as a statutory appeal in terms of Section 117 -A of the Border Security Force Act read with Section 168 of the Border Security Force Act. Let a decision be taken within a period of four months from the date, a copy of the order passed by this Court is made available by the petitioner to the respondents and also to the learned counsel (Mr Ajay Sharma, Additional Central Government Standing Counsel), who has put in appearance on behalf of the respondents today. The competent authority to see as to what relief the petitioner is found entitled. Disposed of accordingly."
(2.) IN pursuance of order passed by this court, respondent No.2 considered the appeal of the petitioner and rejected the same vide order dt. 7th Oct02, impugned in the present writ petition. Petitioner thus, is seeking quashing of order dt. 7th Sept99 vide which the petitioner was dismissed from service and order dt. 7th Oct02, vide which the appeal of the petitioner has been rejected. Petitioner is also seeking mandamus directing respondents to treat the petitioner on active duty and pay him all consequential benefits.
(3.) MR Sudershan Sharma, learned counsel for the petitioner submitted that the petitioner had not committed any such misconduct in discharge of his official duty which deserved dismissal from service. He submitted that the punishment awarded is not commensurate with the act of the petitioner. It was stated that while imposing the punishment, the disciplinary authority must act reasonably and should impose the penalty which commensurates with the act of the delinquent official. He submitted that the petitioner proceeded on one days casual leave but could not join his duty as the wife of the petitioner fell ill and the petitioner had applied for earned leave, which was not sanctioned and, in the meanwhile, the petitioner himself fell ill as a result of which the petitioner could not join his duty. It is submitted that respondents in their reply have admitted that the petitioner approached Commandant of the Battalion for grant of 30 days earned leave on the ground of sickness of wife but the said leave application was rejected as there was no medical document attached with the application. He contended that the Commandant should have directed the petitioner to produce the medical evidence. It is stated that the petitioner has placed on record the medical certificates issued by a Government doctor which would substantiate the claim of the petitioner that his wife as also he himself fell ill. On the other hand, the learned counsel appearing for respondents submitted that no error whatsoever has been pointed out by the learned counsel for the petitioner in holding the Court of Inquiry or proceedings adopted by the respondents. He submitted that the Court of Inquiry was conducted according to the rules and the principles of natural justice were also followed. It is submitted that the petitioner is a habitual absentee and he has now made a ground that firstly his wife fell and then he himself fell ill. The learned counsel submitted that the writ courts are not to disturb the punishment awarded by the competent authority under the Act as the writ court is not a court of appeal. In support of his submission, reliance was placed on AIR 1988 SC 705, Vidya Parkash v. Union of India, AIR 1998 SC 577, Union of India and ors v. Major A.Hussain and AIR 2003 SC 1437, Director General, RPF and ors v. Ch. Sai Babu.;

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