Yaqoob, J.— 1. Vide judgment impugned dated 15.05.2009, writ petition of the respondent has been allowed. The order of dismissal dated 18.10.1999 as was against the respondent has been set aside. The appellants have been directed to re-instate the writ petitioner (respondent herein) with all consequential benefits. However, have been left free to hold fresh enquiry. Aggrieved thereof, the Instant Letters Patent Appeal under Clause 12 has been filed. 2. Learned counsel for the appellants would project that the order of dismissal dated 18.10.1999, was passed by the appellant No. 5, after observing the provisions of the Border Security Force Act, 1968 and the Rules (hereinafter for short referred to as "the Act" and "the Rules"). The respondent belonged to a disciplined Force. He was undesirable to be retained in the service, in view of his negligent attitude of remaining absent with impunity, that too without any authorization. Learned counsel has also produced the records so as to support his contention that all procedural safeguards have been observed in letter and spirit. 3. In opposition, learned counsel for the respondent would contend that absence of the respondent was circumstantial. Firstly, he was ailing so required regular medical checkup. Secondly, the respondent is resident of village Chhanni Tana Tehsil Akhnoor situated near the border area. During the disturbance in the month of May/June, 1999, the Government had advised the inhabitants of the village for migration to safer places. Firstly, no punishment was warranted, secondly has been awarded disproportionately while observing the Rules in breach. The respondent had also been condemned unheard. 4. For appreciating the controversy, precise factual matrix of the case has to be noticed. 5. Respondent, admittedly, was working as Constable bearing No. 89004797. He had reported to "D" Coy 108 Bn. BSF on 17.10.1998. He had proceeded to Ftr Hospital Jammu for treatment but in the process, was found to have gone to GMC Hospital on various dates in the months of November, December, 1998 and months of January and March of the year 1999. He was directed to report to TAC Headquarter, which he did not and remained continuously absent without leave with effect from 23rd June, 1999. 6. When the respondent remained absent without leave from 23rd June, 1999, order dated 13th July, 1999 was issued by the Commandant whereunder Sh. He was directed to report to TAC Headquarter, which he did not and remained continuously absent without leave with effect from 23rd June, 1999. 6. When the respondent remained absent without leave from 23rd June, 1999, order dated 13th July, 1999 was issued by the Commandant whereunder Sh. Naresh Kumar, Assistant Commandant, was detailed to conduct One Man Court of Enquiry to enquire about the absence without leave/over stayal from leave of the two Constables which include the respondent who had remained absent without leave with effect from 23rd June, 1999 (FN). It is provided therein that if a person is found guilty, the Court shall comply with Rule 173 (d) of the BSF Rules. 7. The said One Man Court of Enquiry initiated the proceedings. Despite hectic efforts, the participation of respondent could not materialize, proceedings were concluded in ex-parte. On conclusion thereof, it has been observed that Rule 173 (d) of BSF Rules, could not be complied with as the respondent did not remain present at the time of enquiry. 8. The Commandant, on 14.9.1999, on the basis of the findings of the Court of enquiry, agreed with the opinion then observed that the show cause notice as per BSF Act and Rules be issued to respondent to join duty failing which his services will be terminated under BSF Act and Rules. It is thereafter the show cause notice was issued which reacts as under:- "Subject: SHOW CAUSE NOTICE Whereas, you have been absent without leave with effect from 23.06.1999 (FN). I am of the opinion that because of this absence without leave for such a long period, your further retention in service is undesirable. I therefore, tentatively propose to terminate your service by way of dismissal. 02. Whereas, if you have anything to urge in your defence against the proposed action you may do so before 15 Oct 1999. In case no reply is received by that date, it shall be presumed that you have no defence to put forward against the proposed action and an ex-parte decision shall be taken in this regard." 9. The said show cause notice was challenged by the respondent by medium of SWF No. 2375/1999. Vide interim order dated 20th October 1999 passed therein, following direction was issued:- "....In the meanwhile, the respondents shall permit the petitioner to join the duties, provided his services are regularized." 10. The said show cause notice was challenged by the respondent by medium of SWF No. 2375/1999. Vide interim order dated 20th October 1999 passed therein, following direction was issued:- "....In the meanwhile, the respondents shall permit the petitioner to join the duties, provided his services are regularized." 10. It is during the pendency of the writ petition, the appellant-Commandant passed the order dated 18th October, 1999, which reads as under:- "Whereas, I have gone through the case of absence without leave against No. 89004797 constable Babu Singh of D coy this unit. He was given an opportunity to show cause vide this office registered letter No. Estt/108/AWL/99/1185-86 dated 16 Sept 999 which he has not availed off. I am satisfied that he is absenting without leave w.e.f 23.06.99 (FN) without any reasonable cause and his further retention in this service is undesirable. I, therefore, dismiss him from the service w.e.f. 18 Oct 99 (AN) under BSF Act 1968 Section 11 (2) and Rule 177 of BSF Rules, 1969. His absence period from 23.6.99 (FN) shall be treated as 'DIES NON'. 2. The individual is struck off strength of this unit wef 18.10.99 (AN). 3. A sum of Rs. 634/- (rupees six hundered thirty four) only being the cost of clothing/equipment items found deficient out of those items issued to him by the government be recovered from the dues payable to him and deposited into government treasury." 11. The respondent challenged this order dated 18.10.1999 by medium of SWP No. 343/2000 which was resisted on the ground that the writ petitioner has an alternative remedy of filing appeal before the next higher authority. The writ petitioner (respondent herein) had submitted that he will file an appeal before the Competent Authority by or before 31st May, 2001. The appeal so filed before the competent authority, i.e., Deputy Inspector General of BSF SHQ BSF CI (OPS), Ramban has been rejected vide detailed order dated 13th November, 2001. 12. Again fresh writ petition, SWP No. 3142/2001 was filed, seeking quashment of both order dated 18.10.1999 passed by the appellant-commandant and order dated 13th November, 2001 passed by appellant-Deputy Inspector General of BSF, which has been allowed by the order impugned dated 15.05.2009. 13. 12. Again fresh writ petition, SWP No. 3142/2001 was filed, seeking quashment of both order dated 18.10.1999 passed by the appellant-commandant and order dated 13th November, 2001 passed by appellant-Deputy Inspector General of BSF, which has been allowed by the order impugned dated 15.05.2009. 13. From the perusal of records what has surfaced is that the respondent in response to the show cause notice dated 16.9.1999 proposing punishment, has sent his representation under registered post, the envelop as well as the said representation is available on the records, as produced. The envelop would reveal that the representation has been sent on 15.10.1999 which has been received by the appellant- Commandant on 21.10.1999. When as per show cause notice, the respondent was to submit his reply by or before 15th October, 1999, the order of termination has been passed on 18th October, 1999, which means the response to show cause notice has reached to the appellant-commandant after the order of termination dated 18.10.1999 was passed. 14. From the records, it is not shown as to when the show cause notice was dispatched and when same reached to the respondent. The observation in the order-dated 18.10.1999 that the respondent has not availed the opportunity of showing cause, in the said background, though correct, but situation as has emerged, is such, which has to be taken care of so as to avoid injustice. 15. The show cause notice, as was sent, does not comply with the requirement of Rule 22 (2) of the Rules as the show cause notice was not accompanied with the reports adverse to the respondent when the same is mandatory requirement so as to enable the person to project his defence as against the proposed punishment. The scheme of Rule 22 of the Rules would suggest that to provide opportunity to show cause against the proposed punishment without furnishing the adverse reports infringes the right. To accord consideration to the explanation and defence has an object, i.e., to comply with the requirement of principles of natural justice which has been frustrated. Non-adherence in the peculiar facts of the case rendered the orders as invalid. The adherence to the principles of natural justice has to be fair so that the underlying logic and object is achieved. 16. Non-adherence in the peculiar facts of the case rendered the orders as invalid. The adherence to the principles of natural justice has to be fair so that the underlying logic and object is achieved. 16. Even though the respondent belonged to a disciplined force but that will not dilute the application of principles of natural justice except when it is found that adherence shall be an empty formality which in the present given facts and circumstances of the case, cannot be countenanced. 17. It is not discernable from the records as to when the show cause notice proposing punishment dated 16.9.1999 was actually dispatched and when the same had reached to the respondent. The respondent has submitted his representation as against the proposed punishment and dispatched the same on 15th October, 1999 which was the last date for receipt of the said representation but it had reached to the appellant-Commandant on 21.10.1999 as is clear from the stamps affixed on the envelop (R Cover) in which the said representation was sent. Under such circumstances, the respondent has been deprived of hearing when in the representation, he appears to have given certain cogent reasons which required consideration before passing the order of dismissal. The said order cannot be sustained, as it has the effect of depriving the respondent of his right to be heard and has the effect of defeating the very object of Rule 22 of the Rules, as a whole. 18. What the respondent has projected in defence in the representation as against the proposed punishment precisely is that he is resident of bordering village Chhanni Tana-Akhnoor. In view of disturbance in the Month of May/June, 1999, the Government has advised the families to migrate to safer places. He too had to move his family. So requested the Company Commander for grant of leave and had sought oral permission for shifting his family from border area as there was no one else other than the respondent to look after the family. The village Guard (Chowkidar), Lumberdar and the SHO of the concerned Police Station have issued certificates regarding disturbance and shifting of the families. Even his Company Commander had recommended for providing some accommodation to his family. Then has stated that he shall be allowed to join his duty as he had not remained absent but had sought oral permission. The village Guard (Chowkidar), Lumberdar and the SHO of the concerned Police Station have issued certificates regarding disturbance and shifting of the families. Even his Company Commander had recommended for providing some accommodation to his family. Then has stated that he shall be allowed to join his duty as he had not remained absent but had sought oral permission. Being a poor man, if not allowed to join, his family will suffer. It is also mentioned that he is ready to serve the country. 19. The appellant-Commandant, in terms of Section 11(2) read with Rule 177 of 'the Act' and 'the Rules' is a prescribed authority to dismiss or remove from service any person under his command other than an officer or a subordinate officer. The contention of the respondent that the Commandant was not competent to impose punishment is accordingly repelled. 20. The Commandant, no doubt, is competent to impose penalty, as held above, but he had to adhere to Rule 22 of 'the Rules' which provides that when the punishment of termination is proposed, the delinquent is required to be given chance to show cause in the manner specified under Sub-rule (2) of Rule 22 of the Rules. Rule 22 is relevant to be reproduced herein:- "22. Dismissal or removal of persons other than officer on account of misconduct,- (1) When it is proposed to terminate the service of a person subject to the Act other than an officer, he shall be given an opportunity by the authority competent to dismiss or remove him, to show cause in the manner specified in sub-rule (2) against such action; Provided that this sub-rule shall not apply - (a) where the service is terminated on the ground of conduct which has led to his conviction by a criminal court or a Security Force Court; or (b) where the competent authority is satisfied that, for reasons to be recorded in writing, it is not expedient or reasonably practicable to give the person concerned an opportunity of showing cause. (2) When after considering the reports on the misconduct of the person concerned, the competent authority is satisfied that the trial of such a person is inexpedient or impracticable, but, is of the opinion that his further retention in the service is undesirable, it shall so inform him together with all reports adverse to him and he shall be called upon to submit, in writing, his explanation and defence; Provided that the competent authority withhold from disclosure any such report or portion thereof, if, in his opinion, its disclosure is not in the public interest. (3) The competent authority after considering his explanation and defence if any may dismiss or remove him from service with or without pension; Provided that a Deputy Inspector General shall not dismiss or remove from service, a Subordinate Officer of and above the rank of a Subedar. (4) All cases of dismissal or removal under this rule, shall be reported to be Director General." (emphasis supplied) 21. In terms of sub-rule (2), all reports adverse to the respondent were to be furnished to him, which, admittedly, have not been nor any reason has been recorded by the competent authority that disclosure of such report or portion thereof was withheld in the public interest. Breach thereof renders the order of dismissal as invalid. The competent authority which has heard the appeal against the order dated 18.10.1999, too has not looked into the said rule position and while ignoring the same, has rejected the appeal. Both the two orders dated 18.10.1999 passed by the appellant-Commandant and order dated 13.11.2001 passed by the appellant-Deputy Inspector General having been passed in violation to the Rule 22 of the Rules are liable to be set aside, as such are set aside. 22. The appellant-authorities shall be at liberty, if they so choose to proceed against the respondent afresh and in the process observe the rules and thereafter lo pass appropriate orders. The said exercise shall be undertaken and completed within 12 weeks, if not undertaken, the respondent shall be deemed to have been exonerated and shall be granted all consequential benefits. 23. For the stated facts and reasons, the judgment impugned is maintained. Resultantly, the appeal is dismissed. 24. SWP No. 2375/1999 has remained to be disposed of, which now in view of the aforestated position does not survive for any further consideration, as such shall be deemed disposed of. 23. For the stated facts and reasons, the judgment impugned is maintained. Resultantly, the appeal is dismissed. 24. SWP No. 2375/1999 has remained to be disposed of, which now in view of the aforestated position does not survive for any further consideration, as such shall be deemed disposed of. 25. The records, as produced by the learned counsel for the appellants, be returned to him.