- (1.) DILIP Gupta, J. The petitioner who was working as a Constable in the Border Security Force at Srinagar has filed this petition for quashing the order dated 27th January, 1994 by which he was dismissed from service as well as the order dated 19th August, 1998 by which his representation before the Director General, Border Security Force, New Delhi was rejected. .
(2.) IT has been stated that while the petitioner was posted as a Constable at Srinagar, he was dismissed from service by the order dated 18th July, 1990 as he was absent without leave. The petitioner filed a representation dated 20th August, 1990 before the Director General, Border Security Force, New Delhi, and also filed Writ Petition No. 26949 of 1990 for setting aside the order dated 18th July, 1990. An interim order was granted in this petition on 21st May, 1991 staying the operation of the order dated 18th July, 1990. The petitioner was permitted to work on the basis of the interim order but he again absented without leave as a result of which the order dated 27th January, 1994 was passed dismissing the petitioner from service. The petitioner moved an amendment application in the said writ petition to challenge this order also. Writ Petition No. 26949 of 1990 was ultimately disposed of by this Court by the judgment and order dated 7th April, 1998 with the following observation: ". . . . After hearing the learned counsel for the parties it appears that there was an enquiry in respect of each of the said dismissal orders and also admitted by the petitioner did not participate in any of them. Contention of the petitioner is that he was lying ill and as such he could neither join duties nor could participate in the said enquiry. The respondents' contention is that the petitioner did not avail of the said opportunity. Admittedly the petitioner filed an appeal against the first dismissal order and in respect of the second dis missal order the petitioner came to this Court as already this writ petition was pending. It is the case of the petitioner that in the aforesaid circum stances he was deprived of opportunity of producing evidence including the medical certificates before any of the said dismissal order was passed, al though he sought relief by sending telegram. It is further contended by the j learned counsel for the petitioner that the petitioner produced medical certifi cate in support of his claim at earliest opportunity before the appellate au thority and the said appeal was dismissed without considering the said ma terial. Although the respondents have contended that the appeal/representa tion of the petitioner had been dismissed by the appellate authority but nei ther the date of the order nor the copy of the said order has been disclosed by them. In the aforesaid circumstances, it appears that the respondents are un able to show that the medical certificates produced by the petitioner were considered by the respondent No. 1, the Director General Border Security Force New Delhi. But, in the facts of the case,/am of the opinion that the said medical certificates are relevant materials for deciding the issue as to whether the petitioner was really unable to join duties or to participate in the enquiry. Therefore, the appellate authority is required to consider the appeal of the petitioner along with the medical certificates. As admittedly the petitioner could not file any appeal against the second dismissal order as he had already preferred this writ petition which was then pending, the petitioner is granted liberty to file an appeal against the second dismissal order within four weeks. If the petitioner files the appeal as above the respondents will consider the same as an appeal/representation filed within time. The respondent No. 1 is directed to decide the representation/appeal already filed by the petitioner against the first dismissal order as a/so the appeal/representation to be filed in terms of the liberty granted herein- above in accordance with the law within a period of three months from the date of production of a certified copy of this order. The respondent No. 1 will communicate the order to the petitioner expeditiously. In considering the aforesaid appeals/representations the respondent No. 1 will not rely on or consider any of the findings in the order, if any, passed in the earlier appeal/representation filed by the petitioner against the first dismissal order. " (emphasis supplied) The petitioner has been informed regarding the decision on these two representations by the communication dated 19th August, 1998. The representa tion filed by the petitioner against the dismissal order dated 18th July, 1990 has been allowed, but the representation against the second dismissal order dated 27th January, 1994 has been rejected with the following observations: ". . . . As regard your second dismissal order issued vide letter No. 1071/estt/dismiss/2061 dated 27th January, 1994 the Director General, BSF, after carefully considering all the points raised by you in your representation and circumstance of the case has rejected your petition being devoid of merit. "
(3.) I have heard learned counsel for the petitioner and Sri S. C. Mishra, learned counsel appearing for the respondents. A preliminary objection has been raised by learned counsel for the respon dents that this Court does not have the jurisdiction to entertain the petition as the petitioner was working at Srinagar where the dismissal order was passed and in support of his connection he has placed reliance upon the decision of the Full Bench of this Court in Rajendra Kumar Mishra v. Union of India and others, 2002 (5)AWC4542.;