JUDGMENT : B.R. Sarangi, J. 1. The petitioner, who was working as constable in Border Security Force in 47th BN, Boarder Security Force (BSF) of South Bengal Frontier (SBF), has filed this application seeking to quash the order of punishment of dismissal from service w.e.f. 07.05.2010 under Annexure-6, for unauthorized absence, and consequential order passed by the appellate authority confirming the same in Annexure-5 dated 04.09:2012 respectively. 2. The factual matrix of the case, in hand, is that the petitioner by following due process of selection was appointed as constable in 47th BN, Boarder Security Force (BSF) of South Bengal Frontier (SBF) on 05.07.1998 having personal number as 98098135. He was discharging his duty assigned to him as per the deployment order issued by the competent authority. While he was on deployment at Jammu, he was granted leave for 15 days from 11.01.2010 and was to join in service on 01.02.2010. The petitioner, while availing the leave on his village, suffered from infective hepatitis and was hospitalized from 28.01.2010 till 11.05.2010, therefore he could not join duty on 01.02.2010. He was declared fit by the medical officer of Unit-4 Government Hospital, Bhubaneswar on 11.05.2010. Soon after recovery, he submitted his joining report on 15.05.2010 along with the medical certificate, but he was not allotted duty rather he was intimated by his authority that he has been dismissed from service on 07.05.2010 (F/N). Against the said order of dismissal, the petitioner preferred appeal and he was assured of an inquiry, but his appeal was rejected by a cryptic order on 27.08.2010. Against rejection of his appeal, the petitioner preferred W.P.(C) No. 12792 of 2010, which was disposed of by this Court, vide order dated 07.05.2012, directing the appellate authority to rehear the matter and pass a reasoned and speaking order within a period of three months from the date of communication of the order after dealing with all the points raised by the petitioner by giving opportunity of hearing to the petitioner; But the Deputy Inspector General rejected the appeal on 04.09.2012 in Annexure-5. Hence this application. 3. Dr. A.K. Mohapatra, learned Sr. Counsel appearing along with Mr. Hence this application. 3. Dr. A.K. Mohapatra, learned Sr. Counsel appearing along with Mr. S.C. Sahoo, learned counsel for the petitioner contended that action of the authorities in passing the impugned order of dismissal from service in Annexure-6 dated 7.05.2010 and consequential order of the appellate authority in Annexure-5 dated 04.09.2012, after remand from this Court, is illegal and arbitrary. It is contended that the authority, while passing the order of dismissal from service, has not followed Rule-22 of Border Security Force Rules, 1969 (hereinafter referred "Rules, 1969"), thereby the order of dismissal cannot sustain in the eye of law. It is further contended that the Dy. I.G., who has passed the consequential order in appeal in compliance with the remand order dated 07.05.2012 passed by this Court, is not the appellate authority, and as such, the order passed by him for I.G., BSF is without jurisdiction, contrary to the provisions of law and also violates Rule-28-A of Rules, 1969. To substantiate his contention, reliance has been placed on the judgments of the apex Court rendered in the case of M/s. R.B. Shreeram Durga Prasad and Fateh chand Nursing Das v. Settlement Commission (IT & WT), (1989) 1 SCC 628 ; Chhel Singh v. M.G.B. Gramin Bank Pali, AIR 2015 SC 598 ; Chamoli District Cooperative Bank Ltd. v. Raghunath Singh Rana, AIR 2016 SC 2510 ; and judgment of this Court rendered in the case of Golak Chandra Swain v. Union of India, 118 (2014) CLT 250. 4. Per contra, Mr. B. Nayak, learned Central Government Counsel justifies the order of dismissal passed by the disciplinary authority on 07.05.2010 and stated that the petitioner having remained in discipline service could not have remained unauthorized leave for more than 94 days beyond the command issued to him. It is further contended that the petitioner had given adequate opportunity by calling upon him to show cause vide letter dated 31.03.2010 against the proposed dismissal from service. The show cause notice was delivered to the petitioner by pasting/affixing at the entrance of the individual house, the same having not received back undelivered, it shows that the same was delivered to the petitioner for needful steps. Even though the show cause notice was delivered, no reply was received from the petitioner. Therefore, the action so taken is wholly and fully justified. Even though the show cause notice was delivered, no reply was received from the petitioner. Therefore, the action so taken is wholly and fully justified. Subsequently, when the petitioner submitted joining report on 15.05.2010, the same was not accepted because by that time he had already been dismissed from service on 07.05.2010. The petitioner thereafter preferred appeal, which was rejected by an unreasoned order. Against the said order of rejection, the petitioner filed W.P.(C) No. 12792 of 2010 and this Court, vide order dated 07.05.2012, quashed the order passed by the appellate authority and remanded the matter for hearing afresh. Consequentially, the grievance of the petitioner was examined carefully by the I.G., BSF, South Bengal Frontier (SBF) and the relevant medical documents produced by the petitioner was sent to the Capital/Zonal Hospital and Dispensary, Bhubaneswar, Orissa for verification. Thereafter, the DIG passed the order on 04.09.2012 for IG, BSF South Bengal Frontier (SBF) confirming the order of dismissal passed by the authority. Thereby, no illegality or irregularity has been committed by the authority in passing the order impugned, warranting interference by this Court in this proceeding. 5. This Court heard Dr. A.K. Mohapatra, learned Sr. Counsel appearing along with Mr. S.C. Sahoo, learned counsel for the petitioner; and Mr. B. Nayak, learned Central Government Counsel; and perused the record. Pleadings having been exchanged, with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 6. The admitted fact being that the petitioner, while continuing as constable at Jammu, was granted leave for 15 days from 11.01.2010 to join in service on 01.02.2010. As he suffered from infective hepatitis, he was hospitalized w.e.f. 28.01.2010 till 11.05.2010. When he was declared fit by the Medical Officer, Unit-4, Government Hospital, Bhubaneswar, he reported for duty on 15.05.2010, but he was informed that he has been dismissed from service vide order dated 07.05.2010. Against the said order, he preferred appeal but the same was dismissed on 27.08.2010. Against the said order of the appellate authority, the petitioner filed W.P.(C) No. 12792 of 2010, which was disposed of on 07.05.20.12 remanding the matter back to the appellate authority to rehear the same and pass a reasoned and speaking order within a period of three months from the date of communication of the order by giving opportunity of hearing to the petitioner. Consequentially, the order dated 04.09.2012 was passed by the appellate authority. 7. For just and proper adjudication of the case, relevant provisions of the Boarder Security Force Act, 1968 (hereinafter referred to "Act, 1968") are extracted below:- "2. Definitions.--(1) In this Act, unless the context otherwise requires,-- (a) "active duty", in relation to a person subject to this Act, means any duty as a member of the Force during the period in which such person is attached to, or forms part of, a unit of the Force-- (i) Which is engaged in operations against an enemy, or (ii) which is operating at a picket or engaged on patrol or other guard duty along the borders of India, and includes duty by such person during any period declared by the Central Government by notification in the Official Gazette as a period of active duty with reference to any area in which any person or class of persons subject to this Act may be serving; (b) "battalion" means a unit of the Force constituted as a battalion by the Central Government; xxx xxx xxx (f) "Commandant", when used in any provision of this Act with reference to any unit of the Force, means the officer whose duty it is under the rules to discharge with respect to that unit/the functions of a Commandant in regard to matters of the description referred to in that provision; xxx xxx xxx (h) "Deputy Inspector-General" means a Deputy Inspector General of the Force appointed under section 5; (i) "Director-General" means the Director-General of the Force appointed under section 5; xxx xxx xxx (k) "enrolled person" means an under-officer or other person enrolled under this Act; (l) "Force" means the Border Security Force; xxx xxx xxx (n) "Inspector-General" means the Inspector-General of the Force appointed under section 5; (o) "member of the Force" means an officer, a subordinate officer, an under-officer or other enrolled person; xxx xxx xxx (r) "officer" means a person appointed or in pay as an officer of the Force, but does not include a subordinate officer or an under-officer; (s) "prescribed" means prescribed by rules made under this Act; (t) "rule" means a rule made under this Act; xxx xxx xxx 11. Dismissal, removal of reduction by the Director-General and by other officers.- (1). Dismissal, removal of reduction by the Director-General and by other officers.- (1). The Director-General or any Inspector-General may dismiss or remove from the service or reduce to a lower grade or rank or the ranks any person subject to this Act other than an officer. (2) 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." 8. In exercise of powers conferred by sub-sections (1) and (2) of Section 141 of the Border Security Force Act, 1968, the Central Government framed Rules called The Border Security Force Rules, 1969 (hereinafter referred to "Rules, 1969"). Relevant provisions of the said Rules are extracted below :- "22. Dismissal or removal of persons other than officers on account of mis-conduct.-(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 mis-conduct 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 may 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 the Director General. xxx xxx xxx [28A. Petition.-2 [Any person subject to the Act, who considers himself aggrieved by any order of termination of his service passed under this Chapter may; in the case of an officer, present a petition to the Central Government, in the case of an Assistant Sub Inspector or a subordinate officer, present a petition to the Director General and in the case of an enrolled person, present a petition to the Inspector General, who may pass such orders on the petition as deemed fit]. Provided that the limitation period for filing such petition shall be three months from the date of order of termination or from the date of its receipt, whichever is later. xxx xxx xxx 177. Prescribed Officer under Section 11(2).-The Commandant may, under sub-section (2) of section 11, dismiss or remove; from the service any person under his command other than a officer or a subordinate officer." 9. In view of the aforesaid statutory provisions, unauthorized absence of 94 days by the petitioner beyond the period of sanctioned leave may construe as misconduct. If it is construed as misconduct and the authorities passed the order of dismissal of the petitioner from service, then they have to follow Rule-22 of Rules, 1969. Meaning thereby, when it is proposed to terminate/dismiss the service of a person subject to the Act other than an officer, namely, constable herein the petitioner holding the post, 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) of Rule-22, provided that sub-rule 1(a) of Rule-22 will not have any application while his service is terminated on the ground of conduct which has led to his conviction by a criminal court or a security force court or 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. In the present case, neither the petitioner was dismissed on the ground of conduct which led to his conviction by a criminal court or security force court nor the competent authority, namely, commandant is satisfied for reasons to be recorded in writing, it is not expedient or reasonably practicable to give the person concerned an opportunity of showing cause while passing the order in Annexure-6 dismissing the service of the petitioner in consonance with sub-clause 1(b) of Rule-22. Thereby, Rule-22(1)(b) has not been complied with in its letter and spirit while passing the order of dismissal by the authority. While passing such order of dismissal, the procedure as envisaged under sub-rule(2) of Rule-22 has to be followed by the competent authority. 10. On perusal of the records available, nothing has been placed to satisfy the Court that Rule-22 has been followed by the opposite parties while passing the order of dismissal in Annexure-6 dated 07.05.2010. On the other hand, it is stated that show cause notice was issued in conformity with sub-rule (2) of Rule-22 on 31.03.2010 to the petitioner giving opportunity against the proposed dismissal. But the so called proposed notice was neither received by the petitioner nor was service of such notice placed on record treating the same as sufficient. On the other hand, it has been mentioned that two copies of the show cause notice dated 31.03.2010 were sent through Superintendent of Police district Nayagarh, Orissa for delivery; one show cause notice to the individual and the other by pasting/affixing at the entrance of the individual house. But the letters were not received back undelivered, which shows that said registered letters were delivered to the petitioner for needful. On the basis of such presumption, since the petitioner remained absent for 94 days, it was not justified for waiting him for rejoining on duty in order to maintain discipline amongst the force personnel. Accordingly, the order of dismissal dated 07.05.2010 was passed for unauthorized absence, as his continuance is detrimental to the force discipline, which makes his further retention in the force as undesirable. But, the petitioner was neither served with the copy of such letter dated 31.03.2010 nor was the same pasted/affixed at the entrance of his house, as stated, nor anything has been placed on record to justify that such notice dated 31.03.2010 had ever been served on the petitioner himself. But, the petitioner was neither served with the copy of such letter dated 31.03.2010 nor was the same pasted/affixed at the entrance of his house, as stated, nor anything has been placed on record to justify that such notice dated 31.03.2010 had ever been served on the petitioner himself. Therefore, there is gross noncompliance of the provisions contained in sub-rule (2) of Rule-22 of Rules, 1969. Consequence thereof, the order of dismissal passed by the commandant dated 07.05.20.10 cannot sustain in the eye of law. 11. Admittedly, after recovery from infective hepatitis, the petitioner submitted his joining report on 15.05.2010, along with the documents, justifying his unauthorized absence from duty as he was under treatment in Government Hospital, Unit-4 Bhubaneswar from 28.01.2010 till 11.05.2010, but the same was not accepted stating inter alia that the order of dismissal has already been passed on 07.05.2010, though copy of which was not served by the opposite parties till the date of submission of his joining report on 15.05.2010. When on 15.05.2010, such order of dismissal was served on the petitioner, he preferred appeal but the appellate authority by a cryptic order, rejected the request of the petitioner for reinstatement in service stating that the appeal was devoid of merit. As no reasons were assigned while rejecting the appeal by the appellate authority, this Court vide order dated 07.05.2012 in W.P.(C) No. 12792 of 2010 quashed the said order and remanded the matter back to the appellate authority to rehear the same and pass a reasoned and speaking order within a period of three months from the date of communication of the order after dealing with all the points raised by the petitioner by giving opportunity of hearing to him. Consequence thereof, Annexure-5 has been passed by the DIG/PSO for I.G., BSF, SB, FTR on 04.09.2012. 12. The order of dismissal in Annexure-6 dated 07.05.2010 has been passed by the Commandant and in view of the provisions contained under Section 11(2) of the Act, 1968 read with Rule-177 of Rules, 1969 he is the competent authority to pass the order of dismissal from service of any person under his command other than an officer or a subordinate officer. Therefore, the commandant being the competent authority, in consonance with the provisions contained under Section 11(2) of the Act, 1968 read with Rule-177 of Rules, 1969, has passed the order of dismissal from service of the petitioner, who was working as a constable, not being an officer or subordinate officer under his control, rather it comes within the meaning of any person under the command of the commandant as specified in Rule-177. As per the provisions contained under Rule-28-A of Rules, 1969, since the petitioner was aggrieved by the order of dismissal passed by the authority, he, being a constable, was to present a petition to the I.G., who may pass an order on such petition as deemed fit, provided the person filed the same within prescribed period of three months from the date of order of termination from service. 13. Admittedly, the petitioner, having been dismissed from service on 07.05.2010, filed the petition on 15.05.2010 to the IG by way of appeal against such order of dismissal in consonance with the provisions contained under Rule 28-A. The same having been rejected, without assigning reasons and by a cryptic order, the petitioner preferred W.P.(C) No. 12792 of 2010, which was disposed of by this Court, vide order dated 07.05.2010, by quashing the said order and the appellate authority was directed to rehear the matter bypassing a reasoned and speaking order after dealing with all points raised by the petitioner within a period of three months by affording opportunity of hearing to the petitioner. In compliance of the said order dated 07.05.2012, the order dated 04.09.2012 in Annexure-5 has been passed by the DIG, who is not the competent authority in compliance of the provisions contained in Rule-28-A of Rules, 1969. Under the Rules, 1969, the IG is the competent authority and, as such, the order dated 04.09.2012 in Annexure-5 clearly indicates that the "DIG/PSO for IG, BSF, SB FTR has passed the order. Meaning thereby, the IG himself has not passed the order, rather the DIG has passed the order on 04.09.2012 relating to the appeal preferred by the petitioner. Under the Rules, 1969, the IG is the competent authority and, as such, the order dated 04.09.2012 in Annexure-5 clearly indicates that the "DIG/PSO for IG, BSF, SB FTR has passed the order. Meaning thereby, the IG himself has not passed the order, rather the DIG has passed the order on 04.09.2012 relating to the appeal preferred by the petitioner. Though contention was raised by learned Central-Government Counsel referring to paragraph-5 of the impugned order that the IG has examined the grievance of the petitioner carefully and relevant medical documents so produced by him was sent to the Capital/Zonal Hospital and Dispensary, Bhubaneswar, Orissa for verification, but the order impugned was passed by the DIG, who is not competent to pass such order with reference to Rule-28-A of the Rule-1969. Thereby, the order so passed on 04.09.2012 is without jurisdiction, more particularly, such order has been passed without giving opportunity of being heard to the petitioner. Consequentially, the order is a nullity as the same has been passed without complying with the principles of natural justice. 14. In M/s. R.B. Shreeram Durga Prasad and Fateh chand Nursing Das mentioned supra, the apex Court held that rule of audi alteram pattern being the basis of procedural fairness of compliance of natural justice, thereby, without being given opportunity of hearing to the petitioner, the order of dismissal passed in Annexure-6 dated 07.05.2010 and consequential order in appeal dated 04.09.2012 in Annexure-5 is nullity. Therefore, they should be set aside for non-compliance of principles of natural justice. 15. The apex Court while considering the rule of audi alteram pattern have gone to the extent that mere opportunity to make submissions on the objections of the reporting authority on the grant of applicant's request not enough and that to clear opportunity must be given to demonstrate that the reporting authority was not justified in making the objections and the accepting authority should not accept the objections in the facts and circumstances. Therefore, there is violation of rule of audi alteram pattern and effect there could be that a quasi judicial order denying right to be heard is null and void. 16. Therefore, there is violation of rule of audi alteram pattern and effect there could be that a quasi judicial order denying right to be heard is null and void. 16. Applying the principles to the present context, this Court is of the considered view that the same is applicable in fullest form and, as such, the order of dismissal in Annexure-6 dated 07.05.2010 and consequential order in appeal in Annexure-5 dated 04.09.2012 are null and void, as the same were passed without complying the principles of natural justice and more particularly without complying the statutory provisions of law. 17. In Chhel Singh (supra), the fact was that the appellant therein was absent from service approximately 10 and 1/2 months due to his serious illness beyond his control and in support of that he has submitted medical certificates issued by the doctor after rejoining the post and, as such, unauthorized absence from duty was not willful and deliberate, in that case, the apex Court quashed the order of dismissal and directed the authority to implement the direction and order passed by the learned Single Judge by allowing the petitioner to join in service. The factual matrix of the present case is akin to the fact mentioned in Chhel Singh (supra), more so in Chhel Singh case proceeding was initiated against the petitioner and in the said proceeding charges were framed and the disciplinary authority passed the impugned order of dismissal from service, which was made confirmed by the appellate authority. The learned Single Judge set aside the said termination order by quashing such order of dismissal passed by the appellate authority, but the Division Bench without considering the same in proper perspective, refused to reinstate the petitioner in service. Against the said order of the Division Bench, the petitioner preferred SLP before the apex Court and after due adjudication, the order passed by the learned Single Judge has been made confirmed by the apex Court. Therefore, applying the said principles to the present case, while passing the order in Annexure-6 in dismissing the service of the petitioner neither any statutory provision complied with nor was any proceeding initiated against the petitioner for the said purpose nor the order was passed by following due procedure in compliance of natural justice. Therefore, both the order passed by the Commandant as well as the DIG in appeal, cannot sustain in the eye of law. Therefore, both the order passed by the Commandant as well as the DIG in appeal, cannot sustain in the eye of law. 18. In Chamoli District Cooperative Bank Ltd. (supra), the disciplinary order having been passed without any inquiry and without due observance of natural justice, has been quashed. In the present case, similarly while, passing the order of dismissal, no inquiry has been conducted and, as such, there was no observance of principles of natural justice, more particularly, there was non-compliance of the provisions as contained under Rule-22 of Rules, 1969. Thereby, the order of dismissal so passed by the authority is liable to be quashed. Consequentially, the order in appeal confirming the dismissal also cannot sustain in the eye of law. 19. In Golak Chandra Swain (supra), this Court only considered the punishment of dismissal from service is grossly disproportionate to the charges of unauthorized absence and shockingly harsh and accordingly the same was quashed. But in the present case, no charge has been framed nor has any inquiry been conducted, therefore for illness beyond the control of the petitioner, if he remained unauthorized absence and, as such, the order of dismissal having not been passed without complying the provisions contained under Rule-22 of Rules, 1969, the same cannot sustain in the eye of law. 20. Considering the factual and legal matrix, as discussed above; this Court is of the considered view that the order of dismissal dated 07.05.2010 in Annexure-6 and consequential order in appeal dated 04.09.2012 in Annexure-5, having been passed contrary to the statutory provisions governing the field and without complying the principles of natural justice, cannot sustain in the eye of law and the same are hereby quashed. The opposite parties are directed to allow the petitioner to continue in service as before and grant all consequential service and financial benefits, as due and admissible to him, as expeditiously as possible, preferably within a period of three months from the date of communication of this judgment. 21. The writ petition is allowed. However, there shall be no order as to cost.