JUDGMENT : 1. The petitioner was working as a constable in ITBP and was granted 10 days leave with effect from 06.03.2002 to 19.03.2002 vide order dated 05.03.2002. It is stated that during the period of leave, the wife of the petitioner, who had already lost three children, suffered medical complication during the period of her pregnancy and as the petitioner was not in a position to leave his wife, the petitioner sent telegrams for extension of leave due to unavoidable circumstances. It is also stated that the petitioner was a resident of border area as the house of the petitioner was located within five kilometers of the border and the Army authorities had issued an order to all the residents residing within five kilometers of the border to leave the area and some time was also consumed for shifting his family to the safe location. The petitioner claims that when the condition of his wife started improving, he joined his duty on 25.05.2002 and submitted a representation dated 29.05.2002 demonstrating the reasons of his over staying the leave. The petitioner also claims to have submitted the medical certificates to the respondents. 2. It is averred in the petition that the respondents decided to proceed against the petitioner on the allegation of the petitioner’s over staying the leave for 66 days without sufficient cause and framed the charge-sheet under Section 21 of ITBP Force Act. The petitioner has alleged that the respondents did not conduct any enquiry as required under the ITBP Force Rules and without affording any opportunity of hearing to the petitioner, dismissed him from the service vide order dated 12.08.2002. 3. The petitioner filed an appeal under Rule 168 of ITBP Force Rules against the order of his dismissal and specified the reasons of his over staying the leave. The Deputy Inspector General i.e. respondent No. 4 vide order dated 27.09.2002 rejected the appeal preferred by the petitioner, thereby maintaining the order of the respondent No. 5. It is urged by the petitioner that the respondent No. 4 neither assigned any cogent reason while dismissing the appeal nor personally heard the petitioner before deciding the appeal preferred by the petitioner. 4. The petitioner through the medium of the present writ petition has not only impugned the orders dated 12.08.2002 and 27.09.2002 passed by the respondent Nos. It is urged by the petitioner that the respondent No. 4 neither assigned any cogent reason while dismissing the appeal nor personally heard the petitioner before deciding the appeal preferred by the petitioner. 4. The petitioner through the medium of the present writ petition has not only impugned the orders dated 12.08.2002 and 27.09.2002 passed by the respondent Nos. 5 and 4 respectively but has also prayed for quashing of the departmental proceedings conducted by the respondents against the petitioner. The petitioner has further sought issuance of directions to the respondents to consider the case of the petitioner for his reinstatement & to allow him to perform his duties as a Constable and further to restrain the respondents from treating the period with effect from 12.08.2002 till the date of joining the duty, as break in the service. 5. The petitioner has complained that the respondents without conducting any enquiry and affording any opportunity of hearing to the petitioner as required under the ITBP Force Rules, has dismissed him from the service. It is further urged that the respondents directly framed the charge against the petitioner, whereas in terms of the provisions of the ITBP Force Rule Nos. 171 to 177, an enquiry was required to be conducted. It is further contended that no offence report was prepared under Rule 43 of the ITBP Force Rules (though wrongly mentioned as Rule 43 of the BSF Rules in the petition). The further grievance of the petitioner is that the respondents have not prepared any record of evidence as required under Rule 50 of the ITBP Force Rules. In a nutshell, the stand of the petitioner is that the respondents have not followed the mandate of ITBP Force Rules while proceeding against the petitioner and dismissing him from the service. 6. Response stands filed by the respondents, stating therein that various acts of indiscipline were committed by the petitioner during his service career of seven years and six months with the Force. It is further stated that 10 days casual leave was sanctioned in favour of the petitioner with effect from 06.03.2002 to 19.03.2002 with permission to avail RH on 12.03.2002 and GH on 10.03.2002 and Sunday on 17.03.2002. After the expiry of period of leave, he was required to report at 24 Bn. ITBP but he remained absent from duty without prior permission from the competent authority. After the expiry of period of leave, he was required to report at 24 Bn. ITBP but he remained absent from duty without prior permission from the competent authority. He was directed to report immediately at 24 Bn. ITBP vide memo dated 24.03.2002 but the petitioner neither reported at his duty nor made any request for extension of leave. The petitioner informed the Unit on 10.04.2002 through telegram that his wife was serious and sought extension of his leave. No medical document in respect of illness of his wife was sent by the petitioner, due to which the leave was not extended. The petitioner, as such, remained absent from duty without leave from competent authority for 66 days i.e. from 20.03.2002 till 25.05.2002 which is an offence under Section 21 of the ITBP Act 1992. It is further averred that the charge-sheet was handed over to the petitioner vide memorandum dated 13.07.2002. The respondents have denied that the petitioner was dismissed from service without conducting any enquiry as required under ITBP Force Act and the rules made thereunder. Rather, prior to the conducting of proceedings by the Summary Force Court (for short ‘the SFC’), sufficient time was granted to the petitioner. He was produced before the Commandant 24 Bn. in summary disposal on 14.06.2002 and he pleaded guilty. After hearing him in summary disposal, the Commandant detailed Sh. B. N. Jyotishi, Assistant Commandant vide order No. 4713 dated 17.06.2002 to prepare an abstract of evidence as per the mandate of Rule 51 of ITBP Force Rules. The petitioner also submitted a written statement on 24.06.2002 and a copy of the abstract of evidence was provided to the petitioner on 22.06.2002 and 13.07.2002. The stand of the respondents is that the rules alongwith the provisions of the Act have been meticulously followed by the respondents while preparing the abstract of evidence and while conducting the proceedings by the SFC. The petitioner was clearly informed that he could take help of any person/friend and legal practitioner but he did not opt to do so during the course of SFC proceedings. The petitioner was clearly informed that he could take help of any person/friend and legal practitioner but he did not opt to do so during the course of SFC proceedings. Moreover, the conduct of the petitioner has never been found to be satisfactory during the entire service career and before the present trial also, he was found guilty twice in SFC and awarded punishment of force custody for 90 days w.e.f. 10.07.1998 to 17.10.1998 and for 35 days w.e.f. from 30.10.1999 to 03.12.1999. As per ITBP Rules, after removal from service with effect from 12.08.2002, the opportunity was also provided to the petitioner for making petition against the sentence awarded by the court and the petitioner submitted the representation to the Deputy Inspector General (Kumaon) against the order of his termination from the service and the DIG (Kumaon), after examining the representation rejected the same vide order dated 27.09.2002. This is also the stand of the respondents that the medical certificate furnished by the petitioner was on the format meant for gazetted Officers only and not for non-gazetted officers, therefore the same was not in order. 7. Ms. S. Kour, learned senior counsel appearing on behalf of the petitioner has submitted that no offence report in terms of Rule 43 of the ITBP Force Rules was prepared, as such, the very foundation of the departmental proceedings, is missing, therefore, the consequent SFC proceedings are also non est in the eyes of law. She has further submitted that the rules were not followed by the respondents during the preparation of abstract of evidence and thereafter by the SFC. She lastly submitted that the petitioner had demonstrated the sufficient cause for his absence before the authorities concerned, but they have not bothered to consider the same and have dismissed the petitioner from the service arbitrarily. 8. Per contra, Mr. Vishal Sharma, learned DSGI appearing on behalf of the respondents submitted that the petitioner had been a habitual offender and prior to present disciplinary action taken against the petitioner, he was punished twice for remaining absent unauthorizedly. He has further submitted that the ITBP Force Rules have been meticulously followed by the respondents and due opportunity was afforded to the petitioner in terms of the rules and the petitioner had submitted a written statement. He has further submitted that the ITBP Force Rules have been meticulously followed by the respondents and due opportunity was afforded to the petitioner in terms of the rules and the petitioner had submitted a written statement. He further submitted that the non-preparation of the offence report shall not cause any prejudice to the petitioner, more particularly when he was heard by the Commandant on the charge and was remanded for preparation of an abstract of evidence and finally during the SFC proceedings when charge was read over to him. 9. Heard learned counsel for the parties and perused the record including the record of the SFC proceedings produced by Mr. Vishal Sharma, learned DSGI. 10. The allegations against the petitioner are that he remained absent from duty without sanction from the competent authority with effect from 20.03.2002 to 25.05.2002 whereas he was granted only 10 days leave with effect from 06.03.2002 to 19.03.2002, which as per the respondents is an offence under Section 21 of the ITBP Force Act. 11. This is settled law that while exercising power of judicial review in respect of the disciplinary action taken against the delinquent employee by his employer, the scope of judicial review is quite restricted and limited to the extent of examining as to whether there has been any infraction of rules/procedure prescribed by the statute/rules, thereby causing prejudice to the petitioner and further as to whether the punishment inflicted upon the delinquent employee is shockingly disproportionate to the act of misconduct attributed to the petitioner. In view of this, it is apt to take note of the observations made by the Hon’ble Supreme Court of India in “SBI v. Ajai Kumar Srivastava”, (2021) 2 SCC 612 , which are as under: 25. It is thus settled that the power of judicial review, of the Constitutional Courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The Court/Tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority if based on no evidence. The Court/Tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority if based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority is perverse or suffers from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact. 26. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the Court is to examine and determine: (i) whether the enquiry was held by the competent authority; (ii) whether rules of natural justice are complied with; (iii) whether the findings or conclusions are based on some 24 evidence and authority has power and jurisdiction to reach finding of fact or conclusion. (emphasis added) 12. Now, this Court would examine as to whether the respondents have followed the mandate of ITBP Force Act and Rules made thereunder while conducting the disciplinary proceedings against the petitioner or not and if there is infraction of any rule/procedure, whether the same has caused prejudice to the petitioner. 13. Rule 43 of ITBP Force Rules deals with the statement of allegations and in terms of Rule (supra), the statement of allegations is required to be reduced into writing in the form set out in Appendix-IV of the Rules in the case of persons below the rank of Head Constable. Appendix-IV of the Rules, terms it is an “offence report” and as per the instructions in respect of column (1), the date of offence has to be the first day of absence, in case of absence without leave/desertion. The petitioner has been proceeded against for remaining absent without leave and in terms of Rule 43 (supra), an offence report was required to be prepared before initiating any proceedings against the petitioner. This Court has examined the record produced by Mr. The petitioner has been proceeded against for remaining absent without leave and in terms of Rule 43 (supra), an offence report was required to be prepared before initiating any proceedings against the petitioner. This Court has examined the record produced by Mr. Vishal Sharma, learned DSGI and after perusing the same, it is found that the statement of allegations which was required to be reduced into writing in terms of Rule 43 of the Rules (Supra), is missing in the record of enquiry proceedings. 14. Further Rule 45 of ITBP Force Rules enjoins upon the Commanding Officer of or above the rank of Commandant to hear the charge against the persons under his command in accordance with the provisions of sub-rule (1) of Rule 44 ITBP Force Rules and thereafter may resort to the following course of actions: A. award any punishment which he is empowered to award in respect of persons of and below the rank of Head Constable; or B. dismiss the charge; or C. remand the case for preparing a record of evidence or an abstract of evidence against the accused; or D. in the case of an accused of and below the rank of a Head-Constable remand the accused for trial by Summary Force Court. 15. Hearing on charge is a very important right, which is vested in a delinquent employee so as to ensure the compliance of principle of ‘audi alteram partem’ because of the reason that the Disciplinary Authority has even been empowered to award punishment without remanding the accused for preparation of record of evidence, abstract of evidence or for trial by the SFC. Record further depicts that the Commandant heard the charge against the petitioner on 14.06.2002 and in the memo in respect of hearing of charge, it has been mentioned that the charge has been explained to the accused and has been formed part of the proceedings as annexure-I. This Court finds the absence of charge as well, in the record produced by the respondents, which is stated to have been annexed as annexure- I to the proceedings in respect of hearing on charge. Rather this Court finds the charge dated 15.06.2002 forming part of the order dated 17.06.2002 issued by the Commandant, thereby detailing Sh. B. N. Jyotishi, to prepare an abstract of evidence in terms of Rule 45 of the Rules (Supra). Rather this Court finds the charge dated 15.06.2002 forming part of the order dated 17.06.2002 issued by the Commandant, thereby detailing Sh. B. N. Jyotishi, to prepare an abstract of evidence in terms of Rule 45 of the Rules (Supra). The preparation of charge on 15.06.2002 i.e. one day after hearing, which is 14.06.2002, makes the whole proceedings of hearing on charge meaningless and contrary to rules. In absence of charge, it is difficult to fathom out as to what were the allegations against the petitioner, when he was heard by the Commandant during the course of hearing on charge. It assumes more significance as in the instant case, as already observed above, the offence report is also missing. Once no offence report is prepared and no charge has been prepared by the Commandant, then any action taken by the Commandant other than the dismissal of charge shall amount to passing of an adverse order against the delinquent employee without affording opportunity of hearing to him. The course adopted by the respondent No. 5 cannot be justified. This Court has no hesitation to hold that the proceedings in respect of hearing of the charge conducted by the Commandant in absence of charge and offence report are farce and in fact non est in the eyes of law. 16. It is also apt to observe that an abstract of evidence was prepared by Sh. B. N. Jyotishi on 22.06.2002 and surprisingly the statement of none of the witnesses as mentioned in the minutes of proceedings of hearing on charge by the Commandant, was recorded by Sh. B. N. Jyotishi. Rather, the statement of the petitioner was recorded and he attributed his absence for 66 days without sanction of the competent authority to the illness of his wife and the situation prevailing on border at the relevant point of time resulting into shifting of his family to a safe location. In his statement, it was also stated by him that he had sent two telegrams for extension of leave during the period of his leave. It is not the case where the petitioner did not intimate the respondents in respect of illness of his wife and came out with explanation for the first time in the writ petition preferred by him. It is not the case where the petitioner did not intimate the respondents in respect of illness of his wife and came out with explanation for the first time in the writ petition preferred by him. After the preparation of an abstract of evidence, the respondent No. 5 constituted the SFC vide order dated 13.07.2002 bearing No. 5436. The proceedings of SFC could not be conducted till 12.08.2002, when the petitioner was tried and ultimately convicted and sentenced with the punishment of the dismissal from service within a span of 2 hours and 15 minutes. The petitioner has been convicted and sentenced as he pleaded guilty to the charge. The mode and manner in which the plea of guilt has been recorded by SFC is also doubtful and contrary to rules. The petitioner had been clamouring about the illness of his wife from the very beginning and sent two telegrams to the respondents during the currency of the leave and even during the course of preparation of an abstract of evidence, the specific plea had been taken by the petitioner that his wife was ill and due to the situation on border, he shifted his family as a result of which he was disabled himself to join his duties immediately after the expiry of period of leave. The respondents have admitted that two telegrams were sent by the petitioner for extension of leave. The respondents though, have acknowledged the receipt of medical certificates produced before Sh. B. N Jyotishi, but have pleaded that the certificate was not in order as it was issued on the format provided for gazetted officers and not on the format provided for non-gazetted officers. It is worthwhile to observe that the SFC did not bother to examine the documentary evidence placed on record by the petitioner substantiating the cause projected by the petitioner for his over staying the leave for 66 days. If the reason projected by the respondents in their response for rejecting the medical certificate submitted by the petitioner was not being in proper format as meant for non-gazetted officers, is accepted, then it would mean that the disease of a person would not be termed as disease, if a certificate to that extent is not in accordance with format prescribed for particular class of employees but in accordance with format meant for other class of employees. The reason demonstrated by the respondents is itself unreasonable. When there was sufficient material on record justifying the cause projected by the petitioner for his absence for 66 days, it was incumbent on the part of the SFC in terms of Rule 143(2) of the ITBP Force Rules to have advised the petitioner to withdraw the plea of admission of guilt, which has not been done by the respondents in the instant case. In fact, there has been a cosmetic compliance of Rule 143(2) of the ITBP Force Rules but not in substance. The Rule 143(2) of ITBP Force Rules is parimateria to the Rule 142(2) of the BSF Rules, 1969. 17. In Union of India v. Jogeshwar Swain, (2023) 9 SCC 720 , the Hon’ble Supreme court of India has held as under : 40. Rule 142 of the BSF Rules, 1969 which falls in Chapter XI of the BSF Rules, 1969 deals with the manner in which an SSFC is required to record the plea of guilty. Rule 143 provides for the procedure after the plea of guilty is recorded. The relevant portion of Rule 142 as it stood on the date of the proceeding in question is reproduced below: “142. General plea of “Guilty” or “Not Guilty”.—(1) The accused person's plea of “Guilty” or “Not Guilty” or if he refuses to plead or does not plead intelligibly either one or the other, a plea of “Not Guilty” shall be recorded on each charge. (2) If an accused person pleads “Guilty”, that plea shall be recorded as the finding of the Court; but before it is recorded, the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty, and of the difference in procedure which will be made by the plea of guilty and shall advise him to withdraw that plea if it appears from the record or abstract of evidence (if any) or otherwise that the accused ought to plead not guilty.” 41. A plain reading of sub-rule (2) of Rule 142 would indicate that on the accused pleading guilty, before a finding of “Guilty” is recorded, the SSFC is not only required to ascertain whether the accused understands the nature and meaning of the charge to which he has pleaded guilty but it must also inform the accused of the general effect of that plea and of the difference in procedure which will be made by the plea of guilty. That apart, even if the accused pleads guilty, if it appears from the record or abstract of evidence or otherwise that the accused ought to plead not guilty, the SSFC is required to advise him to withdraw that plea. 42. Before acting on the plea of guilty, compliance of the procedural safeguards laid down in sub-rule (2) of Rule 142 is important as it serves a dual purpose. First, it ensures that before pleading guilty the accused is aware of not only the nature and meaning of the charge which he has to face but also the broad consequences that he may have to suffer once he pleads guilty. This not only obviates the possibility of an uninformed confession but also such confessions that are made under a false hope that one could escape punishment by pleading guilty. The other purpose which it seeks to serve is that it ensures that confessions do not become an easy way out for deciding cases where marshalling of evidence to prove the charge becomes difficult. It is for this reason that sub-rule (2) of Rule 142 requires an SSFC to advise the accused to withdraw the plea of guilty if it appears from the examination of the record or abstract of evidence that the accused ought to plead not guilty. Since, the procedure laid in sub-rule (2) of Rule 142 serves an important purpose and is for the benefit of an accused, in our view, its strict adherence is warranted before accepting a plea of guilty. (emphasis added) 18. From the above discussion, it is evident that the respondents have not followed the mandate of rules while proceeding against the petitioner right from the very inception and have violated the procedure prescribed by the rules with impunity, resulting into miscarriage of justice to the petitioner. The petitioner has been deprived of his employment by the respondents in an illegal manner. 19. The petitioner has been deprived of his employment by the respondents in an illegal manner. 19. In view of above, the order dated 12.08.2002 dismissing the petitioner from the service passed by the respondent No. 5 is not sustainable in the eyes of law and the respondent No. 4 too, on his part, has miserably failed to notice the infirmities in the order dated 12.08.2002 passed by the respondent No. 5, as noted above by this Court. Therefore, the order dated 27.09.2002 passed by the respondent No. 4 also does not hold good on the parameters of law as discussed above. 20. Accordingly, both the orders mentioned above alongwith the proceedings conducted against the petitioner are quashed and the respondents are directed to reinstate the petitioner forthwith with all the consequential benefits except monetary benefits. The respondents are further directed to examine as to whether the petitioner was gainfully employed after the issuance of termination order dated 12.08.2002 and if it is found that the petitioner was not gainfully employed from the date of his dismissal from service till the passing of this order, the petitioner would be entitled to all the monetary benefits. The respondents are further left free to proceed afresh against the petitioner in accordance with law within the period of three months from today. 21. Record be returned to Mr. Vishal Sharma, learned DSGI.