Purnendu Khan vs Union Of India & Ors
2023 Latest Caselaw 6006 Cal

    5
08.09.2023
 (P.A.)RB
Court No. 12
                             In The High Court at Calcutta
                              Civil Appellate Jurisdiction
                                     Appellate Side
                                    MAT 653 of 2019
                                         With
                                     CAN 2 of 2021

                                    Purnendu Khan
                                         Versus
                                  Union of India & Ors.
                            Mr. Sourabh Guhathakurata,
                            Mr. Dip Jyoti Chakraborty,
                            Ms. Ipsita Ghosh,
                            Mr. Abhratanu Sarkar,
                                        ... for the appellant
                            Mr. Bhudeb Chatterjee,
                            Ms. Sarda Sha,
                                       ... for the Union of India
                     The appellant, while working in the service of

               Border Security Force, became ill from 5th December,

               1994 and was treated in the BSF Hospital. He was

               advised to take rest. On an application, the appellant was

               granted leave till 19th December, 1994. According to the

               appellant, he went to his native place and took treatment

               in the nearest hospital. He was given advise to take rest.

               In view of the same, he applied for extension of leave from

               20th December, 1994. The said request was rejected by

               the respondent and appellant was asked to join duty on

20th December, 1994. The appellant did not join duty.

According to him, he was diagnosed with tuberculosis

and sent a request dated 3rd January, 1995 by certificate

of posting for extension of leave and also a representation

dated 7th April, 1995 by certificate of posting.

The respondent No. 5 issued a show-cause notice

dated 27th March, 1995 calling upon the appellant to

show-cause within fifteen days as to why action should

not be taken for his long unauthorized absence. The

respondent No. 5, on the failure of the appellant to

submit any explanation, vide order dated 11th April,

1995, dismissed the appellant from service. According to

the appellant, he sent a representation dated 27th July,

1995 giving reasons for not joining duty.

On the above averments, the appellant filed the

present writ petition being C.O. 19767(W) of 1995. In the

writ petition, the learned counsel for the appellant

contended that respondent No. 5 did not comply with

Rule 22 of the Border Security Force Rules, 1969 (for

short, "the Rules") as respondent No. 5 did not furnish

the report of the Court of Enquiry based on which, show-

cause notice was issued. Due to failure on the part of the

respondent No. 5, the appellant could not submit effective

explanation and prayed for allowing the writ petition. The

dismissal of the appellant is vitiated for non-compliance

of Rule 22 of the Rules and prayed for allowing the writ

petition.

The respondent No. 5 filed affidavit-in-opposition

and contended that:

i) Appellant was called upon to join duty on

20th December, 1994 but he did not join

duty.

ii) The respondent No. 5 did not receive any

request for extension of leave alleged to have

been sent under certificate of posting and did

not receive letter dated 7th April, 1995.

iii) The respondent No. 5, by exercising the

power under Rule 22 of the Rules, dismissed

the appellant. The order of dismissal is valid

and legal and prayed for dismissal of the writ

petition.

The learned Judge considering the materials placed

before him and Sections 19 and 82 of the Border Security

Force Act, 1968 (for short, "the Act") and Rule 22 of the

Rules dismissed the writ petition holding that respondent

No. 5 by informing the appellant about unauthorized

absence had complied with Rule 22 of the Rules.

Against the said order of dismissal, the appellant

has come out with the present appeal.

The learned Counsel for the appellant reiterated the

averments made in the writ petition and grounds raised

in the appeal and further contended that Section 62 of

the Act and Rule 22 of the Rules must be read together.

As per Section 62, a court of enquiry has to be conducted

with regard to absence and the enquiry report must be

furnished to the charged employee. The learned Judge

erroneously held that the respondent No. 5 by informing

the appellant about unauthorized absence complied with

Rule 22.

The learned Counsel for appellant relied on the

judgment in the case of Nagarjuna Construction

Company Limited vs. Government of Andhra Pradesh

and Others reported in (2008) 16 SCC 276 and

submitted that if any adverse report is relied on to initiate

proceeding against the employee, the copy of the said

report should be furnished to the employee.

Per contra, the learned counsel appearing for the

respondent No. 5 submitted that the appellant did not

join duty after expiry of leave granted and rejection of

request for extension of leave from 20th December, 1994.

Respondent No. 5 did not receive alleged letters dated 3rd

January, 1995 and 7th April, 1995. The appellant has

failed to prove for having sent those letters. Learned

counsel submitted that appellant is a deserter as per

Section 61 of the Act due to unauthorized absence. The

concerned police was informed about the desertion and

police was requested to arrest the appellant. The

respondent No. 5 by informing the unauthorized absence

in the show-cause notice complied with Rule 22. The

appellant did not submit any explanation and did not

even seek for document for submitting his explanation.

The learned Judge has given proper and valid reason for

dismissing the writ petition and prayed for dismissal of

the appeal.

Heard counsels appearing for the appellant and the

respondent and perused the entire materials on record.

From the materials on record, it is seen that the

appellant is absent from duty from 20th December, 1994

in spite of rejection and his request for extension of leave

and calling upon him to join duty on 20th December,

1994 itself. The appellant failed to prove that he sent

letters dated 3rd January, 1995 and 7th April, 1995 for

extension of leave as well as his alleged explanation dated

27th July, 1995. According to the appellant, he sent

letters dated 3rd January, 1995 and 7th April, 1995

through certificate of posting but failed to produce any

proof for having sent those letters. In the facts and

circumstances of the case, the appellant ought to have

sent communication through registered post so as to

have proof for having served all his letters. This failure

creates a doubt as to whether really the appellant sent

these letters or is making such claim only for the purpose

of the case.

The contentions of the learned Counsel for the

appellant that a reading of Section 62 of the Act and Rule

22 of the Rules makes it clear that the respondent No. 5

failed to comply with Rule 22 is not acceptable in view of

Section 61 of the Act. Section 61 deals with persons who

deserted the work. When a person subject to the Act

deserts, the Commandant of the unit is empowered to

request the concerned civil authorities to apprehend the

deserter as if a warrant is issued by a Magistrate and

deliver the deserter when apprehended into the custody

of Force. The learned Counsel for respondent No. 5

submitted that the appellant was treated as deserter and

steps had been taken to apprehend him. This contention

is not disputed by Counsel for appellant.

The charge against the appellant is that he

unauthorizedly absented himself and in the show-cause

notice, it has been clearly mentioned that action is being

taken for his unauthorized absence. Even though the

appellant received the show-cause notice, he has not

submitted any explanation.

Considering Section 61 of the Act and show-cause

notice, we hold that respondent No. 5 has complied with

Rule 22. The learned Judge has considered all the

materials placed before him and by giving valid reasons

that by informing the appellant about unauthorized

absence, respondent No. 5 has complied with Rule 22.

There is no reason to interfere with the impugned order.

For the above reasons, the order passed by the

learned Judge does not warrant any interference by this

Court.

Accordingly, the appeal fails and is dismissed.

(V.M. Velumani, J.)

(Rai Chattopadhyay, J.)