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2013 DIGILAW 754 (JK)

Union of India v. Gorakh Nath

2013-12-26

Hasnain Massodi, M.M.Kumar

body2013
1. Writ petitioner /respondent was enrolled as Constable in BSF on 01.07.1971. He was selected in February, 1988 for deputation to the Ministry of External Affairs to perform his duties in Indian Embassy at Abu-Dhabi till 11.07.1993. On completion of deputation he was repatriated to Headquarter IG BSF Jammu. Writ Petitioner/respondent was granted 30 days leave by Indian Embassy and had to report to Headquarter IG BSF, Jammu on 10.08.1993. He, instead joined Headquarter IG BSF on 01.12.1993. He justified his absence on the ground of ill health and prayed for regularization of the period of overstay on medical grounds. He also sought voluntary retirement on compassionate grounds. 2. Respondents deferred consideration of his application for voluntary retirement on the ground that the writ petitioner/respondent had to serve for a period of one year after his return from deputation, before his request for voluntary retirement would be considered. He was further directed to report to his new place of posting i.e 56 BSF by or before 10.02.1994. The movement order in this regard was issued on 18.02.1994. He however, failed to report to 56 Bn.BSF. Repeated communications requesting him to report to duty went without any response. 3. The Commandant 56 Bn.BSF, issued show cause notice to the writ petitioner/respondent on 06.05.1994 requiring him to show cause against his proposed termination on the ground of his unauthorized absence from duty. The notice did not evoke any response. The commandant 56 Bn. BSF thereafter, vide No. Estt/56/94/Ab.94/7478-84 dated 09.06.1994 dismissed the writ petitioner/respondent from service w.e.f. 09.06.1994. The period of absence w.e.f. 01.03.1984 was directed to be treated as " dies-non". 4. The dismissal order dated 09.06.1989 was questioned by writ petitioner/respondent in writ petition being SWP No. 1183. The case set up was that the order impugned in the petition was passed without enquiry and without giving him opportunity to project his stand. 5. The writ court partly allowed the writ petition and upheld order dated 09.06.1994. However, punishment imposed vide aforesaid order was quashed and ordered to be substituted with that of compulsory retirement w.e.f 09.06.1994. The period of absence w.e.f. 01.03.1994 was directed to be treated as dies-non. 6. The respondents-present appellants were directed to calculate the retiral benefits payable to the writ petitioner/respondent, complete the exercise within six months and thereafter the retiral benefits were to carry interest at the rate of 9% per annum. 7. The period of absence w.e.f. 01.03.1994 was directed to be treated as dies-non. 6. The respondents-present appellants were directed to calculate the retiral benefits payable to the writ petitioner/respondent, complete the exercise within six months and thereafter the retiral benefits were to carry interest at the rate of 9% per annum. 7. The writ court judgment dated 19.04.2004 was questioned in Letters Patent Appeal on hand on the grounds set out in the memo of appeal. 8. Heard and considered. 9. There is no scope for dis-agreement with learned counsel for the appellant that court while exercising power of Judicial review is not to modify the punishment awarded by disciplinary authority, on asking of the delinquent official in absence of compelling reasons. Punishment awarded must not only be disproportionate but of such nature as shocks the court and prompts it to make it commensurate with the mis-conduct proved against the delinquent official. However, in the present case there are most distinguishing features that rightly persuaded learned Single Judge to substitute the punishment imposed i.e removal from services with compulsory retirement. 10. In the first place, writ petitioner/respondent while reporting to Headquarter IG BSF after the delay of little less than four months, explained his overstay on leave on the ground that he suffered from Hepatitis on his return from Abu- Dhabi and was confined to bed. This aspect of case was not looked into during enquiry. The writ petitioner/respondent had even appended a medical certificate issued by Dr. J.S. Soodan, certifying that the writ petitioner/respondent was suffering from infective Hepatitis and was under his treatment. 11. Secondly, writ petitioner/respondent while submitting the joining report also submitted application for his voluntary retirement. He volunteered to deposit three month's salary on 11.02.1994 and requested that his voluntary retirement be approved. He also prayed for leave till his case for voluntary retirement was finalized. This is evident from application dated 11.02.1994 submitted by the writ petitioner/respondent to Frontier HQrs BSF, Jammu appended as Annexure "F" to the writ petition. This aspect of the case was also ignored by the enquiry officer and thereafter by the disciplinary authority while awarding punishment. 12. Thirdly, writ petitioner/respondent had more than 22 years' unblemished service to his credit. The disciplinary authority did not appreciate this aspect of the matter while awarding the punishment. This aspect of the case was also ignored by the enquiry officer and thereafter by the disciplinary authority while awarding punishment. 12. Thirdly, writ petitioner/respondent had more than 22 years' unblemished service to his credit. The disciplinary authority did not appreciate this aspect of the matter while awarding the punishment. The disciplinary authority while throwing him out on the ground of unauthorized absence did not realize that it was not only showing him the door but depriving him and his dependents of the right to get pension, retiral benefits to which he had become entitled due to long service to his credit. 13. All these factors were sufficient for the writ court to review the punishment awarded and substitute it with the compulsory retirement. 14. For the reasons discussed, we do not feel persuaded to take a view different from one taken by the learned single judge. 15. The appeal does not disclose any merit and deserves to be dismissed. 16. Dismissed.