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2007 DIGILAW 1847 (PAT)

Gautam Kumar v. Union Of India

2007-12-04

SHEEMA ALI KHAN

body2007
Judgment 1. The petitioner has filed this writ petition for quashing the order, dated 13.6.2001 by which respondent no. 3 has dismissed the petitioner from service with effect from 13.6.2001 and the order, dated 13.12.2001 passed under rule 28A of the Border Security Rules, 1969. 2. The facts giving rise to the filing of the present writ petition is that the petitioner was a trainee in the Border Security Force posted at Hazaribagh. It is the case of the petitioner that he was absent from duty from 22.1.2001 to 12.3.2001. He appeared at the Centre on 12.3.2001 when he was permitted to join his training on 12.3.2001. Again the petitioner absented himself from 22.4.2001 to 13.6.2001. On remaining absent the petitioner was served a show cause notice on 15.5.2001 and thereafter he was dismissed from service under Sec. 11 (2) read with Sec. 177 of the Border Security Act (hereinafter to be referred to as the Act). 3. The contention of the petitioner is that his absence should be condoned and further that he was not given adequate opportunity to show cause and as such there is a violation of the principles of natural justice. 4. The case of the respondents, on the other hand, is that the petitioner was recruited in service on 17.3.1997. On 13.6.1997 he was awarded the punishment of confinement in line upto fourteen days. Thereafter, the petitioner absented himself from 6.4.1998 to 13.4.1998 for which he was again punished. On 7.6.1998 while serving at Hazaribagh, the petitioner was dismissed from service because of his absence. The order of dismissal was set aside on 23.3.2000 and the period of his absence of 480 days was regularised by granting him different types of leaves. 5. When the petitioner absented himself from training, it is contended that four show cause notices were issued at his home address and after completion of thirty days, the C.O.I, was ordered to find out the circumstances under which the petitioner had absented himself without leave under Sec. 62 of the Act. During the enquiry the petitioner reported back on 12.3.2001 after absence of 49 days and he was allowed to undergo basic recruitment training. The petitioners statement was recorded and before completion of the enquiry he again absented himself from 22.4.2001. 6. It was asserted on behalf of the respondents that the court of enquiry was completed and finalised under the Addl. The petitioners statement was recorded and before completion of the enquiry he again absented himself from 22.4.2001. 6. It was asserted on behalf of the respondents that the court of enquiry was completed and finalised under the Addl. DI.G., S.T.C., B.S.F., Hazaribagh on 28.4.2001. It is further contended that after his absence on 22.4.2001 the Supdt. of Police, Jehanabad was informed so that the petitioner could be produced before the authorities. However, when the apprehension could not take place, a show cause notice was issued to the petitioner on 14.5.2001 to put forward his reply in his defence. The petitioner, however, neither reported for duty nor any reply was received from him and after waiting for one month, the petitioner was dismissed from service. 7. Learned counsel appearing on behalf of the respondents submits that it is not a fact that petitioner was not given an opportunity to submit his defence and it also appears that during the pendency of himself. The circumstances and the conduct of the petitioner indicates that he was not fit to be retained in service. The show cause notice issued to the petitioner has been annexed as Annexure A which reads as follows: "You have absented without leave from 22.1.2001. After issuing four notices you have reported at S.T.C. on 12.3.2001 but again deserted on 22.4.2001. After consideration the report relating to your absence I am satisfied that your trial by a security force court is impracticable and I am of the opinion that your further retention in service is undesirable." 8. It, therefore, appears that the petitioner was issued a show cause notice, he appeared and again absented himself and as such the authorities concerned proposed to dismiss him from service and accordingly Annexure A was issued which is in accordance with the Rules. 9. Learned counsel for the petitioner relied upon a decision of the Supreme court in the case of Union of India V/s. Ram Pal, A.I.R. 1996 SC 1500. In that case the facts were different. 9. Learned counsel for the petitioner relied upon a decision of the Supreme court in the case of Union of India V/s. Ram Pal, A.I.R. 1996 SC 1500. In that case the facts were different. The dismissal order indicated that the absence of the incumbent was condoned and treated as E.O.L. and, therefore, the apex court held that the "charge of absence from duty cannot be sustained after the person had been treated on leave of whatsoever kind it may be." It was further held that the dismissal order was inconsistent with the facts contained in the order itself and the appeal was allowed. 10. Learned counsel then argued that the petitioner was suffering from illness and could not present himself in court for that reason. 11. Counsel for the respondents, on the other hand, has argued that when the petitioner appeared before the authorities, he did not present medical documents and they have been presented in this court at a belated stage. 12. In this case I find that the petitioner is a resident of Jehanabad district and the medical reports which have been produced are from Koelwar which is a small Sub-divisional town in Bhojpur district which is far away from Jehanabad and medical facilities are also not available there in comparison to Jehanabad and Patna. 13. In view of the aforesaid facts, I find that the petitioner was given ample opportunity to submit his show cause and file a reply against the order impugned. Accordingly, I find no merit in the submissions made on behalf of the petitioner. 14. In the result, this writ petition is dismissed but with no order as to costs.