Ex-Naik Charan Singh vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1147 Del

JUDGMENT

Swatanter Kumar, J.

1. Charan Singh, the petitioner had joined Delhi Police as a Constable on 2.11.63. According to him, he joined Border Security Force on permanent deputation from Delhi Police on 24.5.71 under No. 71198006.6. In April, 1989, he went to his village in Kerala to enjoy the Earned Leave and to get treated for the back pain. On examination, the doctors found that the petitioner was patient of P.I.V.D. The investigations were conducted on 23.6.89 and the doctors advised him complete rest. The petitioner sent the copy of his medical investigation certificate to the Commandant of 79th Battalion of B.S.F. Suddenly on 14.2.90 he was dismissed from service, however, the copy of the letter was not sent to him and he made a representation for reinstatement into service in October, 2004 to which he had not received any reply resulting in filing of the present writ petition.

2. On the above premise, the petitioner has made two prayers in this petition under Article 226 of the Constitution of India. Firstly, that the respondents be directed to consider the case of the petitioner for reinstatement in service with all previous benefits. Secondly, and in alternative the respondents be directed to grant service pension to the petitioner from the date of his dismissal from service of the B.S.F.

3. The counsel appearing for the respondents had sought time to seek instructions. Though no counter affidavit had been filed but records were produced before the Court during the course of hearing.

4. The respondents, however, have argued that petitioner is not entitled to any of the prayers made in the writ petition primarily for the reason that no facts entitling the petitioner for such relief have been averred in the petition. The petition is vague, indefinite and even the impugned order has not been annexed to the petition. Further, it is argued that the present petition is barred by delay and latches. The petitioner is also not entitled to relief as statutory remedies under the provisions of the Border Security Force Act are available to him against the impugned order. There is some merit in the contentions raised on behalf of the respondents which are primarily legal and based upon the service record of the petitioner which has been produced before us during the course of hearing. On his own showing, the petitioner was dismissed from service on 14.2.90 and he has filed the present writ petition in September, 05. In the entire petition no averment has been made much less a reasonable explanation has been rendered for the inordinate delay in filing the present writ petition. It is also true that the copy of the order dated 14.2.90 has not been annexed to this writ petition and even no prayer has been made that the respondent should be directed to supply the copy of the order to the petitioner. The petitioner has made no averment in the writ petition as to how and when he came to know of the order of dismissal. The defect of delay and latches would certainly and adversely affect the claim of the petitioner before this Court. The learned Counsel appearing for the respondent has relied upon the Division Bench Judgment of this Court in the case of Ex. Constable Sukhvir Singh v. Union of India and Ors. in Civil Writ Petition No. 2576/2000 decided on 14.3.06 in which there was delay of seven years and the Court declined to interfere in an order of dismissal passed in somewhat similar circumstances and the Court held as under:

At this stage, the respondents pointed out that there was inordinate delay in filing this writ petition by the petitioner and as a consequence the records pertaining to the case of the petitioner, including the records which contain the aforesaid evidence indicating issuance of show cause notice to the petitioner at his home address through Registered AD post are destroyed by the respondent as they were required to maintain the record of a case only for a period of 7 years. In support the said stand and contention reference is made by the respondent to GFR 284 of the Border Security Force Procedure, indicating that the said records pertaining to the service of the petitioner were already destroyed and the same is placed on the record.

Since the said records are not available as they have been destroyed by the respondent, we are not in a position to decide as to whether or not show cause notice issued to the petitioner was served or not. It is only the petitioner who is responsible for this position. He was negligent and slept over his rights, it any and due to his lapses and inordinate delay, the connected records came to be destroyed. The petitioner can not take advantages of his own lapses and make submission before us that there was violation of the principles of natural justice as he did not receive copy of the show cause notice. In this connection we may refer to the decision of the Division Bench of our own Court titled as Hans Ram v. Union of India reported in 1995(34) DRJ(DB) where it was held that belated claim after destruction of service record can not be entertained.

5. We have no reason to take a different view particularly in the facts and circumstances of the present case. The service of the petitioner was dismissed on 14.2.90 and there is nothing on record before us which could show any reasonable ground for the petitioner to approach the Court after a lapse of nearly fifteen years. The conduct of the petitioner is certainly not what is expected of a person belonging to security forces. From the rank of a Constable he was promoted to the rank of a Nayak and it is required of him as a member of the disciplined security force to report to any nearby hospital of the forces or at least join his duties after expiry of a reasonable period while keeping the authorities informed. From the service record of the petitioner produced before us, it is clear that no such intimation for all this long period was sent by the petitioner of his illness. Even Along with the writ petition, the petitioner has not annexed any postal receipt or document to substantiate his above version that he had informed the authorities from time to time. It is strange that though he had gone to Kerala for his treatment but the medical certificate or prescription sent by him are claimed to have been obtained from Safdarjung Hospital and that too on 23.6.89. The copy of said medical certificate has been annexed as Annexure-I to the petition. It is obligatory upon the part of the member of the forces to inform the authorities within a reasonable time if the said member suffers from any illness. We are unable to accept the version of the petitioner that he could not have gone to his own unit for these fifteen years.

6. From the service record of the petitioner, it is apparent that an opportunity to reply to the charge-sheet of unauthorised absence for the period from 23.6.89 to 14.2.90 was not availed of and the authorities having left with no alternative had passed the order of dismissal from service under Rule 177. Unathorised absence is a serious misconduct and in fact where no reasonable cause is shown and a member of the Force remains unathorisedly absent without leave or sanction of the competent authority, it would be termed as a misconduct of a grave nature. This was held to be even true in the cases of State Police and in the case of Ex. Constable Satnam Singh v. State of Punjab 1997 (3) RSJ 353 where the court referred to various judgments of the Supreme Court including the judgment in the case of The State of Punjab and Ors. v. Ram Singh Ex. Constable . Thus, it cannot be said that absence of the petitioner could not be the foundation for dismissing him from service. Even before the court, no explanation whatsoever has been rendered by the petitioner for his prolonged unauthorised absence except that he was having a back problem which again is not supported by any definite medical record. The petitioner has also failed to explain why couldn't he appear or get in touch with any of the units in and around his own State. In the order itself, the absence for the relevant period has been treated as extraordinary leave without pay which will not amount to condoning the offence as it has been done primarily for the purposes of regularisation of record and dues payable to the petitioner in accordance with rules. Reference can also be made in this behalf to the judgment of the Punjab & Haryana High Court in the case of Ex. H.C. Gagan Bhaskar v. State of Punjab CWP 10245/2001 decided on 2.8.2001. Thus, in our considered view, the petitioner is not entitled to the relief on this account. Though the petitioner has not even filed the copy of the order of dismissal but having gone through the record, we do not think that the proceedings dated 25thMay, 1990 call for any judicial intervention.

7. The other relief claimed by the petitioner is with regard to grant of pension for the services rendered. There can be no doubt that the petitioner was enrolled on 1.8.71 and his services were dismissed w.e.f 14.2.90 and he has completed 15 years service. It is contended on behalf of the respondents that the minimum qualifying service for grant of pension is 20 years in terms of Rule 48-A, Chapter VII of the CCS Pension Rules. As such, the petitioner has not completed 20 years service. It is further argued that even if for the sake of argument, it is assumed that the petitioner might be entitled to receive pension as he has put in 15 years of service, even in that event, the petitioner would not be entitled to get any pension in face of definite bar contained in Rule 24 Chapter III of the CCS Pension Rules. Under Rule 24 of Chapter III of the CCS Pension Rules, dismissal or removal of a Government servant from service or post entails forfeiture of his past service. This rule comes into play as a consequence of dismissal of an employee and no exceptions have been carved out by the Rule making authority in this rule. There is no doubt to the fact that the petitioner has been dismissed from service on account of misconduct by the power which is lawfully vested in the disciplinary authority. In the case of Ex. Ct. Raj Kishan v. UOI and Ors. CWP 7665/2001 decided on 4.9.2002, a Division Bench of this Court while referring to the same Rule, took the same view and stated 'that being so, petitioner's dismissal without pensionary/financial benefits could not be faulted as such.' The plea taken by the respondents, thus, is not without merit. We are unable to direct the respondents to grant any relief to the petitioner in the peculiar facts and circumstances of this case and particularly when the petitioner alone is responsible for creating the state of affairs as they existed at the time of his dismissal and even today after a lapse of more than 15 years.

8. We find no merit in this writ petition. The same is dismissed while leaving the parties to bear their own costs.