SEES RAM Vs. UNION OF INDIA
HIGH COURT OF DELHI
UNION OF INDIA
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Devinder Gupta, J. -
(1.)The petitioner has sought the quashing of order of dismissal from service dated 6.3.1991 passed by the Commandant, 67 Bn., Border Security Force in exercise of powers conferred under Section 11(2) of (he Border Security Force Act, 1968 (hereinafter referred to as 'the Act') along with all consequential reliefs.
(2.)The petitioner was enlisted as Constable (Messenger) on 23.2.1961 in Punjab Police and later on embodied in Border Security Force (for short BSF) with effect from 1.3.3966. The petitioner remained posted in Punjab, Nagaland, Tripura and New Delhi. On 17.2.1989 he was attached from his Unit 67 Bn. BSF Ferozepur to BSF Signal Regiment, Delhi for 3 months for the treatment of his only son, who had got fractured his leg in an accident. He was ordered to return back to his unit at Ferozepur on 31.3.1989, i.e., before the expiry of the said period of 3 months' leave. The petitioner represented against the premature recall and on 4.5.1989, it is alleged by him, that he was stopped from entering the unit and from marking his presence. He again is alleged to have represented to the authorities but of no avail. On 28.5.1989 the petitioner filed a civil suit for injunction against the respondents, inter aha, praying for mandatory injunction directing the respondents to permit him to mark his attendance and assign duty in the unit at Delhi and for payment of his salary. It is further alleged that on 20.6.1990 a show cause notice, annexure A-2 was served upon him by the respondents to show cause against the proposed termination of his service. On 2,7.1990 a reply was submitted, inter alia, stating that the matter was still subjudice in a civil court and it would be illegal to dismiss him administratively during the pendency of the suit. The petitioner in reply stated that he was readily available for his trial by a Security Force Court, He had been residing in Government allotted quarter at Delhi along with his family. His whereabouts were also fully known to the authorities and as such no Departmental administrative action for his dismissal ought to be taken on the basis of show cause notice. He denied that he was absent without leave. Despite this reply, on 6.3.1991 the impugned order of dismissal was passed, which the petitioner has alleged, was never served upon him, nor brought to his notice, except on 28.8.1992, when the counsel for the respondents in the civil suit, which had been filed by him, dis closed about the same. Civil suit in view of the subsequent events was withdrawn as infructuous. Accordingly this petition was preferred on 30.3.1993 for redressal of his grievance, after having served a notice on 4.2.1993.
(3.)In nutshell the submission made on behalf of the petitioner is that the impugned dismissal from service for the alleged absence without leave is illegal and void ab initio. Absence without leave is an offence under Section 19-A of the Act and is punishable by Security Force Court under Section 48 of the Act. Only in those cases where trial by Security Force Court is not expedient or is impracticable that an order of dismissal from service by an administrative order can be passed and that also on compliance with the requisite provisions of the Act and the Rules. In the instant case it is alleged, the trial of the petitioner by Security Force Court, for the alleged offence of absence without leave was neither inexpedient, nor impracticable and as such his dismissal by an administrative action, only on serving a show cause notice is bad in law. Reliance is placed by the learned counsel for the petitioner on the decision of the Supreme Court in Major Radha Krishan v. Union of India & Ors. JT 1996 (3) SC 650.
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