- (1.) THIS is an appeal by the Union of India and it is directed against an order dated June 26, 1979, passed by a Ld. single Judge of this court in C. R. No. 9774 (W)/76. That was a writ petition "and by the order impugned, the Ld. single Judge had allowed the said writ petition ex parte against the appellant since the appellant did not appear to contest.
(2.) THE writ petitioner is the respondent Anil Bandhu Mitra. He was enrolled as a constable in the 1st Battalion of the West Bengal Rifles which was later converted into Border Security Force. At the material time the respondent was serving as a Lance Naik. According to the respondent, on a urgent information being sent to him about his son's serious illness,-he went home on September 14, 1974, intimating the said fact to the company Commandant. Unfortunately for him, his son died within a day and he himself lost his mental balance for over a year. In such circumstances on march 17, 1975, the respondent No. 1, namely, the Commandant, 70th Battalion, B. S. F. , issued a show cause notice calling upon him to show cause why he should not be dismissed from service for unauthorised absence without any leave. Since the writ petitioner-respondent was not in his senses, his wife wrote a letter to the Commandant intimating the fact that the respondent had lost 5. In the affidavit in opposition filed by the Union of India arid the authorities of the Border Security Force a stand has been taken that the writ petitioner left his duties while he was in charge of a special camp without any prior intimation and without taking any leave. Since he was absent for more than three months without any leave, a court of enquiry was held under section 62 of the act and a show cause notice was issued upon the writ petitioner why he should not be dismissed from service in exercise of administrative powers under section 11 of the Act. In the affidavit in opposition it has been strongly disputed that ;any intimation was sent to the authorities by the wife of the writ petitioner [informing about his mental derangement. Since there was no reply to the show cause, the writ petitioner was dismissed from service in exercise of administrative powers under section) 11 of the Act read with Rule 117 and administrative instructions incorporated in a Central Government circular dated 1. 1. 70. 6. In the affidavit in reply the writ petitioner has again challenged the plea taken by the authorities that he left his duties without any intimation. According to him, in view of the information received, he had to leave for his home immediately and he did so by intimating the Company Commander. It has further been reiterated in. this affidavit in reply disclosing a certificate of posting that in answer to the show cause notice dated March 17, 1975, the wife of the writ petitioner intimated the authorities that the writ petitioner being mentally sick, was not in a position to show any cause. 7. Upon the pleadings thus put forward before us the basis of the judgment his mental balance and was under medical treatment. Notwithstanding such intimation by the wife, respondent No. 1, namely, the Commandant passed an order on March 26, 1975, dismissing the respondent from service. An appeal to the Director General failed and hence, the respondent moved this Court in the writ jurisdiction challenging the aforesaid order of dismissal from service dated March 26, 1975,, on the ground that such an order was not in accordance with law and had been passed in breach of the principles of natural justice and the provision of Article 311 of the Constitution. Since the appellant did not appear to contest and did not file any opposition in their defence, the Ld. Single judge in allowing the writ petition held that the action taken against the respondent was by way of imposing a penalty for an offence under the Border security Force Act but without a proper trial as envisaged by the said Act. It is the said order which is the subject-matter of challenge before us in this appeal by the Union of India.
(3.) AFTER the appeal was heard in part, we decided to give an opportunity to the Union of India and the authorities of the Border Security Force to file an opposition to the writ petition instead of binding them by the ex parte order passed by the Ld. Single Judge. We did not remand the proceeding back to the writ Court since it involves, dismissal of a poor employee for over. 10 years.;