Mohammad Rafiq, J. - (1.) This writ petition has been filed by petitioner- Shankar Lal Jatolia assailing the order dated 3/3/1998 (Ann.9) by which, he was dismissed from services of the respondents with the prayer to quash and set-aside the same and that the respondents be directed to reinstate him in service with all consequential benefits.
(2.) Petitioner was appointed in the services of Border Security Force of Faridkot, Punjab on the post of Constable on 1/5/1991. While he was in services of the respondents, he was embroiled in a criminal case for offence u/Ss.302 and 201 IPC. He was arrested by the police of Police Station Narena, Jaipur. He was placed under suspension by the respondents vide order dated 20/12/1996 (Ann.1). Petitioner was lateron granted bail by this Court on 6/5/1997. Respondents vide letter dated 23/5/1997 (Ann.2) conveyed to the petitioner about his entitlement to salary during the suspension period and other benefits. Petitioner submitted an application to the Commandant of the concerned Battalion on 16/6/1997 (Ann.3) requesting for appropriate direction whether he should stay at home or with the unit. Then, he submitted another application on 16/7/1997 (Ann.4) that a false accusation has been made against him and that during suspension, he is being paid only half of the salary and that he be permitted to stay with the Regiment. The Officer Commanding by his order dated 16/7/1997 (Ann.5) permitted him to stay with the Regiment. It was thereafter that petitioner submitted an application on 20/8/1997 (Ann.6) contending that there was no one to defend him in criminal trial and that he had a child alone in his house and therefore he be permitted to leave the headquarters. The Officer Commanding by his order dated 20/8/1997 (Ann.7) permitted petitioner to leave the Regiment. Petitioner thereafter submitted an application to him with regard to payment of certain amount. In response to that, Commanding Officer vide letter dated 22/9/1997 (Ann.8) communicated to him that so far amount of subsistence allowance has not been received from the headquarter and he shall be informed after it was received.
(3.) Shri V.S. Yadav, learned counsel for the petitioner has argued that petitioner was a confirmed employee of the respondents and they could not have dismissed him without a thorough departmental enquiry after giving opportunity of hearing to the petitioner. Premise on which petitioner was dismissed from service is his absence for the period from 8/10/1997 to 3/3/1998, whereas fact is that petitioner had left the Regiment with due permission of the Officer Commanding-respondent No.4, which is evident from the order dated 20/8/1997 (Ann.7) passed by said respondent No.4. Petitioner requested for permission to leave the headquarter on the premise that there was no one to defend him in the criminal case and to look after his child. In the letter of permission for leaving Regiment, no time was specified within which, petitioner was required to report back. Since the petitioner was under suspension, under bonafide belief that he would report back after his ultimate acquittal from the criminal case, did not report back. Learned counsel in this regard, produced a certified copy of the order dated 25/7/2005 passed by the Court of Additional District and Sessions Judge, Sambharlake, District Jaipur by which petitioner has been acquitted of all the charges in the said criminal trial. Learned counsel submitted that no notice whatsoever was served upon the petitioner with regard to absence. If at all the respondents wanted to proceed against petitioner in departmental enquiry on the ground of absence, they ought to have associated the petitioner with such enquiry, which they did not do. It is argued that the respondents themselves in the impugned-order of dismissal dated 3/3/1998 (Ann.9) mentioned that period of absence from 8/10/1997 to 3/3/1998 will be treated as "dies non", which means that his absence in the way has been regularized and therefore same charges cannot be form the basis for dismissal of his service in an illegal manner.;