ORDER BY THE COURT:- 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. 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. 4) Shri V.S. Yadav, learned counsel has referred to Section 62 of the Border Security Force Act, 1968 (for short, the “Act of 1968”) and argued that the said provision superficially provides that there shall be a Court of enquiry into the charge of absence. No such enquiry was held and thus dismissal of the petitioner is bad in law. He left the Regiment after the permission granted by the commanding officer vide order dated 20/8/1997 (Ann.7). No such enquiry was held and thus dismissal of the petitioner is bad in law. He left the Regiment after the permission granted by the commanding officer vide order dated 20/8/1997 (Ann.7). Since petitioner was under suspension, he in any case was not required to remain on active duty. Learned counsel submitted that absence in the meaning of Section 19 of the Act of 1968 is an absence without leave, whereas in the present case, petitioner left the Regiment with the prior permission and proper leave and therefore his absence cannot be treated as willful absence. Learned counsel argued that respondent No.4 i.e. commanding officer had no power to dismiss petitioner, who is permanent Constable of the Border Security Force. He had only power to issue the certificate in a prescribed proforma as laid down in Section 12 of the Act of 1968. Respondent No.4 neither complied with the Act of 1968 nor the Border Security Force Rules, 1969 (for short the “Rules of 1969”) framed thereunder. And therefore the impugned-order is liable to be quashed and set-aside. 5) Shri S.S. Raghav, learned Additional Solicitor General for Union of India has opposed the writ petition and argued that petitioner never granted leave of any kind. Leave that was granted to the petitioner vide order dated 20/8/1997 (Ann.7) was granted to leave the Regiment but the petitioner reported back the Regiment in the first week of October 1997. Petitioner collected G.P.F. amount of Rs.15,000/-and arrears of subsistence allowance of Rs.12,477/- from the Regiment in the first week of October, 1997. He has also endorsed his signatures on the attendance roll. Thereafter, he left the Force without getting the permission from respondent No.4 and thus absented himself from the Regiment from 8/10/1997. The respondents while doing so adopted the prescribed procedure. The Officer Commanding thereafter vide order dated 10/11/1997 (Ann.R/5) detailed Shri Ajay Ram Pal of the Regiment to conduct Court of enquiry to enquire into the circumstances under which petitioner was absenting without leave from 8/10/1997. Repeated letters were sent to the petitioner at his address to report back on duty on 23/10/1997, 29/10/1997 and 23/11/1997, which have been placed on record as Ann.R/6, Ann.R/7 and Ann.A/8, respectively. Repeated letters were sent to the petitioner at his address to report back on duty on 23/10/1997, 29/10/1997 and 23/11/1997, which have been placed on record as Ann.R/6, Ann.R/7 and Ann.A/8, respectively. The respondents have also issued to the petitioner two show causes notices on 7/1/1998 (Ann.R/9) and 28/1/1998 (Ann.R/10) at his home address indicating his absence without leave and asking him to report back on duty and a letter of apprehension was also sent to the Superintendent of Police, Jaipur 6/1/1998 (Ann.R/11) to apprehend and produce petitioner. Show cause notices were returned with the remarks that petitioner was residing elsewhere and that his address was not known. In fact, petitioner did not accept the show cause notices only with a view to continuing his stay at home. Competent authority was therefore perfectly justified in passing the order of dismissal dated 3/3/1998 (Ann.9). 6) I have given my anxious consideration to the rival submission and perused the material available on record. 7) Rule 40A of the Rules of 1969 inter-alia provides that notwithstanding anything contained in these rules, the appointing authority may, at its discretion, place a person serving under him, under suspension,- (i) where a disciplinary action under the Act against him is contemplated or is pending; or (ii) where in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest or security of the State; or (iii) where a case against him in respect of any civil offence is under investigation, inquiry or trial. Petitioner was placed under suspension owing to this reason. First proviso to that rule provides that the Director General may exercise the powers of suspension in respect of officers of the Force upto the rank of Deputy Commandant. Second proviso thereto stipulates that Director General shall report the facts of each case immediately to the Central Government and all such orders of suspension shall become ab-inito void unless confirmed by the Central Government within a period of one month from the date of the said orders, irrespective of the fact that the suspension is revoked by the said authority within that period. Sub-rule (2)(i) of Rule 40A of the Rules of 1969 provides that a member of the Force shall be deemed to have been placed under suspension by an order of the appointing authority – (i) with effect from the date of his detention by civil police on criminal charge or otherwise for a period exceeding 48 hours. Sub-rule (3) thereof provides continuation of an order of suspension until it is modified or revoked by the authority competent to do so. Sub-rule (5) thereof provides that when a person remains under suspension for more than 90 days, a report giving reasons for delay in the finalization of his case shall be submitted to the Director General by the Commandant of accused, and thereafter, subsequent reports shall be submitted every month till the case is finalized or the order of suspension is revoked, whichever is earlier. Since no pleadings have been made nor any arguments have been agitated regarding infraction any of these rules, this Court is not required to go into all that. 8) Whether the Act or the Rules, they in any case postulate that a member of the Force or for that matter, an army personnel enrolled with the Force, despite being placed under suspension continues to be such member/enrolled person and his relationship with the Force, does not thereby get snapped. Though petitioner was indeed granted permission to leave the Regiment vide order dated 20/8/1997 (Ann.7) but that leave came to end the day he reported back on duty in the first week of October, 1997 and thereafter collected the amount of G.P.F. of Rs.15,000/-and arrears of subsistence allowance of Rs.12,477/- from the Regiment and also endorsed his attendance on the rolls of the respondents, which is proved from attendance roll which is produced by them at Ann.R/4. Leave so granted on 20/8/1997 thus outlived its purpose. It was thereafter that petitioner absented from unit lines on 8/10/1997 and this time without permission from the Officer Commanding. He continued to remain absent till the impugned-order dated 3/3/1998 (Ann.9) was passed. Petitioner cannot take shelter of the fact of criminal case because as per his own showing, he was granted bail by this Court on 6/5/1997. Then onwards, he was a free man, yet he did not report. Being a member of a disciplined armed force, he could not treat himself like a ordinary civil servant. Petitioner cannot take shelter of the fact of criminal case because as per his own showing, he was granted bail by this Court on 6/5/1997. Then onwards, he was a free man, yet he did not report. Being a member of a disciplined armed force, he could not treat himself like a ordinary civil servant. 9) Misconduct though it is but the absence of the petitioner has been made basis for his dismissal from service on the basis of enquiry conducted by the respondents. Respondents have produced on record three letters dated 23/10/1997 (Ann.R/6), 29/10/1997 (Ann.R/7) and 23/11/1997 (Ann.R/8) sent to the petitioner for reporting back on duty at his home address at Ram Udyog, Tehsil Ke pas Nava City, District Nagour. These communications, according to the petitioner, were not served upon him. Then, the disciplinary authority served upon the petitioner the show cause notice dated 7/1/1998 (Ann.R/9) but this time at his address at Village Chaprt, P.O. Korsinha, District Jaipur. But it was returned back with the remark that recipient is residing elsewhere and address was not known. When this show cause notice dated 7/1/1998 (Ann.R/9) was not served, the respondents have sent another show cause notice to him on 28/1/1998 (Ann.R/10) and this time, on his both the abovenoted addresses viz. (i) Ram Udyog, Tehsil Ke pas Nava City, District Nagour and (ii) Village Chaprt, P.O. Korsinha, District Jaipur. Respondents even issued a letter of apprehension to the Superintendent of Police, Jaipur 6/1/1998 (Ann.R/11) to secure the presence of the petitioner before them. Petitioner deliberately and continuously avoided to accept any of the communications received from the B.S.F. and simultaneously continued to remain absent from duties. 10) As regards the competence, Section 11(1) of the Act of 1968 provides that an officer not below the rank of Deputy Inspector-General or any prescribed officer may dismiss or remove from the service any person under his command other than an officer or a subordinate officer of such rank or ranks as may be prescribed. Such prescription has been made under Rule 177 of the Rules of 1969, which stipulates that the Commandant may, under sub-section (2) of Section 11, dismiss or remove from the service any person under his command other than an officer or a subordinate officer. Such prescription has been made under Rule 177 of the Rules of 1969, which stipulates that the Commandant may, under sub-section (2) of Section 11, dismiss or remove from the service any person under his command other than an officer or a subordinate officer. Such procedure has also been provided under Rule 22 of the Rules of 1969, which inter-alia provides that 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. Section 19 of the Act of 1968 provides that any person of the BSF absents himself without leave; or without sufficient cause overstays leave granted to him; or being on leave of absence and having received information from the appropriate authority that any battalion or part thereof or any other unit of the Force, to which he belongs, has been ordered on active duty, fails, without sufficient cause, to rejoin without delay; or without sufficient cause fails to appear at the time fixed at the parade or place appointed for exercise or duty; or when on parade, or on the line of march, without sufficient cause, or without leave from his superior officer, quits the parade or line of march; or when in camp or elsewhere, is found beyond any limits fixed, or in any place prohibited, by any general, local or other order, without a pass or written leave from his superior officer; or without leave from his superior officer or without due cause, absents himself from any school when duly ordered to attend there, shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is mentioned in the said Act. Section 62 (1) of the said Act provides that when any person subject to this Act has been absent from duty without due authority for a period of thirty days, a court of inquiry shall, as soon as practicable, be appointed by such authority and in such manner as may be prescribed; and such court shall, on oath or affirmation administered in the prescribed manner, inquire respecting the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or necessaries; and if satisfied of the fact of such absence without due authority or other sufficient cause, the court shall declare such absence and the period thereof and the said deficiency, if any, and the Commandant of the unit to which the person belongs shall make a record thereof in the prescribed manner. Section 62 (2) of the said Act provides that if the person declared absent does not afterwards surrender or is not apprehended, he shall for the purpose of this Act, be deemed to be a deserter. 11) It is therefore that the respondents conducted the Court of inquiry under Rule 174 (1) of the Rules of 1969, which provides that a court of inquiry may be held to investigate into any disciplinary matter or any other matter of importance. Sub-rule (2) thereof provides that in addition to a Court of inquiry required to be held under Section 62, a Court of inquiry shall be held in all the matters incorporated therein. Rule 175 of the said Rules provides that the proceedings of a Court of inquiry shall be submitted by the Presiding Officer to the officer or authority who ordered the Court. Such officer or authority on receiving the proceedings may either pass final orders on the proceedings himself, if he is empowered to do so, or refer them to a superior authority. In the present case, two options were open to the Officer Commanding. One option was to hold the Security Force Court, which course he did not adopt and the other course according to Rule 177 of the Rules of 1969 was to pass order of removal, which is one of the course option as per Section 11(2) of the Act of 1968, which what has been done in the present matter. One option was to hold the Security Force Court, which course he did not adopt and the other course according to Rule 177 of the Rules of 1969 was to pass order of removal, which is one of the course option as per Section 11(2) of the Act of 1968, which what has been done in the present matter. 12) In view of above discussion, no fault can be found with the action of the respondents. 13) The writ petition is dismissed with no order as to costs.