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2010 DIGILAW 426 (JK)

Ram Dass v. Union Of India

2010-07-31

J.P.Singh

body2010
1. The petitioner was serving as L/NK in `C’ Coy of 8 Bn Border Security Force at Kargil when he was granted 30 days commuted leave w.e.f 09.06.1998 to 08.07.1998 for self rest on recommendations of the Unit Medical Officer. He was supposed to report back at Transit Camp, Jammu on 09.07.1998. He, however, neither joined nor responded to the letters sent to him to report back on duty. A Court of Inquiry was thereafter ordered to investigate his overstayal of leave. As recommended by the Court of Inquiry, a Show Cause Notice was issued to the petitioner by Registered Post on September 30, 1998 informing him to show cause as to why he be not dismissed from service for his absence without leave from duty for a long time. The Registered Letter was refused by him. Another attempt was made by the respondents to contact him through Commandant CTS, Udhampur but his whereabouts could not be known. In view of his long absence without leave from duty, he was dismissed from service under Section 11(2) of the Border Security Force Act, 1968. 2. He approached this Court by Writ Petition SWP No.2541/1999 questioning his dismissal. This Writ Petition Was disposed of by issuing a direction to the respondents to dispose of his Appeal, which was then stated to be pending with the respondents. His Appeal having been dismissed, he has again approached this Court questioning his dismissal from service. 3. I have heard learned counsel for the parties and perused the material on records. 4. Petitioner’s plea that it was because of his mental illness that he was disabled to respond to the respondents’ communications and join after the expiry of his leave period, is not found substantiated as the documents placed on records do not bear testimony to the facts pleaded by him about his disablement to respond to the Notice issued by the respondents calling upon him to join duty and show cause as to why he be not dismissed from service. 5. The material placed on records by the respondents indicates that the Postal Authorities had recorded on the Registered Letter issued on the address of the petitioner that the addressee i.e. the petitioner had refused to accept the letter. 5. The material placed on records by the respondents indicates that the Postal Authorities had recorded on the Registered Letter issued on the address of the petitioner that the addressee i.e. the petitioner had refused to accept the letter. Relying on the presumption of truth, which the endorsement on the Registered Letter carries, under law, I do not find any worthwhile material on records to come to the conclusion that the endorsement made on the Registered Letter was not based on facts. 6. That apart, the documents produced by the petitioner do not indicate his admission in any Hospital, on the basis whereof, it may be said that the petitioner was disabled to join his duty. Certificate placed on records by the petitioner indicating him to have received treatment at Udhampur hospital too does not demonstrate his disablement to join duty, in that, he is shown to have been treated as an Out Patient in the hospital meaning thereby that the doctors attending on him had not considered him fit for admission in the hospital. There was thus no sufficient cause for him to justify his absence from duty. 7. Even otherwise, being a member of the Discipline Force, the petitioner was required to report at the Transit Camp and inform the authorities about his illness rather than avoiding the authorities, who had permitted him to go on leave only from 09.06.1998 to 08.07.1998. In such cases of overstayal of leave, a member of the Discipline Force is required to inform the unit concerned about his disability to join rather than avoiding contact with them. His failure to do so raises presumption of his intentional avoidance to join duty warranting action under law. 8. For all what has been said above, I do not find any case to have been made out by the petitioner justifying exercise of extra ordinary jurisdiction of the Court to interfere with the orders passed by the respondents for petitioner’s dismissal from service for his unexplained absence from duty. 9. Found without merit, this Writ Petition is, accordingly, dismissed.