Prakash Tatia, J. - (1.) HEARD learned Counsel for the petitioner.
(2.) THE petitioner is challenging the order dated 10.10.2004 by which the petitioner on account of remaining absent from duty without leave of 177 days was treated as "dies non" for all purposes and his name was struck off from the unit w.e.f. 10.10.2004. Learned Counsel for the petitioner vehemently submitted that petitioner was not mentally fit and when he went to join the duties, he could not reach to the place of joining and could not be found by the family members and even by his employer, therefore, the order dated 10.10.2004 which was passed ex -parte is absolutely illegal. It is submitted that the petitioner came to know in reply to the petitioner's notice through is Advocate sent by the respondent that petitioner's brother preferred appeal against the order dated 10.10.2004 which was dismissed on 26.3.2009. The petitioner has not been supplied the copy of the order dated 26.3.2009 and, therefore, he has not placed on record the copy of the order dated 26.3.2009.
(3.) THE facts which already have come on record reveal that petitioner was removed from service by order dated 10.10.2004. The petitioner's first representation submitted on 26th June, 2009 copy of which has been placed on record as Annex. 2 reveals that according to petitioner himself after his appointment he was assigned some other work than the work of Barber and he was not happy with that work. He was well aware of the fact that he has been removed vide the impugned order dated 10.10.2004 as he has admitted in his representation. He clearly stated that he is not ready to work in 166 BN BSF and he may be given appointment anywhere other than in 116 BN BSF. Then the petitioner contacted advocate and after taking legal advise he served notice upon the respondents on 6.10.2009. In para No. 6 of the notice and other paras, the petitioner stated that he was ill treated in Headquarter 116 BN BSF and thereafter it has been stated that he was not heard before passing the order dated 10.10.2004. In fact, the petitioner in his letter dated 26th June, 2009 had already accepted that he was removed from service in the year 2004 by the order dated 10.10.2004 and he is not willing to join the duties at 116 BN BSF and was not found by his family members appears to be also concocted story and the petitioner failed to explain under what circumstances his brother preferred appeal seeking relief for his reinstatement when petitioner himself was not willing to work and discharge the duties in service. The petitioner after knowing the fact that his brother preferred appeal did not choose to obtain the copy of the order of dismissal of his appeal. However, the petitioner's brother's appeal's dismissal is of no consequence because of the reason that petitioner himself did not prefer appeal nor according to the petitioner he authorized his brother to prefer the appeal then petitioner is virtually challenging the appealable order dated 10.10.2004 directly in the writ petition.;