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2017 DIGILAW 633 (JK)

Rajinder Kumar Mishra v. UOI

2017-08-14

B.S.WALIA

body2017
JUDGMENT : 1. Prayer in the instant writ petition is for the issuance of a Writ of Certiorari to quash Order No. Estt/THQ/115/Resign/2002/1624 dated 12.02.2002 passed by respondent No.4 as also for issuance of a Writ of Mandamus directing the respondents to treat the petitioner as on duty as Constable w.e.f 12.02.2002 and to pay him all consequential benefits including arrears of pay and other benefits. 2. Brief facts of the case leading to the filing of the instant writ petition are that the petitioner was appointed as Constable in the year 1988 in the Border Security Force and after successful completion of training was initially posted in 13th Bn. BSF at District Bikaner and in the year 1991, the petitioner was posted in 121 Bn. at Kupawara (J&K) and at that relevant point of time, respondent No.4 was serving as Deputy Commandant/Adjutant in 121 Bn. at Kupwara. It is the allegation of the petitioner that he was ill treated by respondent No.4 during his posting in 121 Bn. It is further alleged that on a number of occasions, respondent No.4 compelled the petitioner to consumer liquor and thereafter, got the petitioner medically checked up where-after he was issued warnings. 3. Petitioner also alleged that in the year 2000, when he was posted in 115 Bn at Gurdaspur (Punjab), he proceeded on leave for a period of 30 days to visit his home but due to family circumstances, could not resume duty and eventually, submitted his joining on 29th September, 2000 wherein it was learnt by the petitioner that respondent No.4 had assumed the charge of Commandant of 115 Bn (Gurdaspur). Respondent No.4 against his wishes obtained the signatures of the petitioner on blank papers and granted further 10 days leave. However, petitioner could not resume duty within the extended period of 10 days leave and was late by 3 days whereupon he was awarded rigorous imprisonment of 28 days by respondent No.4 and during his confinement, signatures of the petitioner were obtained on certain papers and the petitioner was compelled to tender his resignation on 25.02.2000 which was accepted on the same date. However, respondent No.4 is claimed to have told the petitioner that in case he would do certain work for him which would be disclosed to him by his wife in his native village, he would rescind the order accepting his resignation. However, respondent No.4 is claimed to have told the petitioner that in case he would do certain work for him which would be disclosed to him by his wife in his native village, he would rescind the order accepting his resignation. It is further claimed that in order to save his career, the petitioner acceded to the dictates of respondent No.4 and thereafter, the order of resignation was rescinded on 28.02.2000, but shown to have been rescinded on 25.02.2000. Thereafter, Battalion 115 was shifted from Gurdaspur to Batmaloo Bus Stand Kashmir where from the petitioner was assigned to 120 Bn. Nagore Rajasthan i.e. 100 kilometres away from the residence of respondent No.4 in Rajasthan and after reaching Rajasthan, the petitioner contacted respondent No.4's wife and met her family members including sons and daughters and was told by respondent No.4's wife to eliminate a certain person which the petitioner flatly refused to do. Learned counsel contends that resignation dated 11.2.2002 was submitted by the petitioner in the aforementioned circumstances and the same was accepted. 4. As per Annexure R dated 11.02.2002, the petitioner had tendered his resignation on account of family circumstances and same was accepted on the very next day. Learned counsel contends that despite resignation having been made in the circumstances as referred to above and despite the petitioner having approached the higher authorities after acceptance of his resignation w.e.f 12.2.2002 with the plea that the resignation was not voluntary, no action was taken by the authorities concerned. 5. Per contra, learned counsel for the respondents contended that the allegations as made by the petitioner are a concoction of facts in order to gain the sympathy of the Court, otherwise there is nothing on record to show any truth in the allegations and mere bald assertions have been made without any proof in respect thereto and same would not be of any avail to the petitioner. Learned counsel for the respondents has further contended that the petitioner has alleged that he was compelled to consume liquor where-after he was got medically examined and if that was the position, at least complaint ought to have been filed by the petitioner to the higher authorities, but there was nothing in respect thereto forthcoming from the averments made in the writ petition that a complaint had been made to the higher authorities against the alleged illegal action of respondent No.4. Learned counsel further contended that another allegation of the petitioner was that he had been compelled to extend his leave for a period of 10 days though he did not want leave, but the same was also patently false contention in view of the fact that if it was against the wishes of the petitioner that respondent No.4 extended the leave then the petitioner in view of the alleged inimical attitude of respondent No.4 ought to have been vigilant and ought to have reported for duty within time but reported three days late as per his own admission. Learned counsel contended that in view thereof, it was apparent that the allegations were a mere concoction of facts. 6. I have considered the submissions made by learned counsel and am of the considered view that in the light of allegations and counter allegations, disputed questions of fact arise which it is not possible for this Court in exercise of its jurisdiction under Article 226 of the Constitution of India to decide. In view thereof, without commenting upon the merits of the case, it is deemed appropriate to relegate the petitioner to avail of his remedy in accordance with law as is available otherwise than by way of writ petition. Needless to mention, in case the petitioner invokes the jurisdiction of a competent authority/Court of law, he would be given the benefit of pendency of the proceedings before this Court and no objection would be taken with regard to limitation provided that the petitioner takes appropriate steps within four weeks from today. 7. Writ petition is disposed of in the aforementioned terms.