Delhi High Court
Naik Jaivir vs Uoi & Ors. on 27 August, 2010
Author: Gita Mittal
*IN THE HIGH COURT OF DELHI
+Writ Petition (Civil) No. 2673/2010
% Date of decision: 27th August, 2010
NAIK JAIVIR ..... Petitioner
Through Mr. U. Srivastava, Adv.
versus
UOI AND ORS ..... Respondent
Through Mr. D.S. Mahandru and Mr. Jayendra,
Advs.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether reporters of local papers may be allowed to see the
Judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in the Digest?No
GITA MITTAL, J(Oral)
1. The petitioner assails an order dated 21st June, 2003 whereby he
has been dismissed from service.
2. The petitioner was enrolled with the Border Security Force in the
year 1984. It appears that the petitioner was implicated in a firing
incident in Mochighat which occurred on 19th September, 1987 when he
was posted on the strength of 50th Battalion of the Border Security
Force as a Constable. For the purposes of disciplinary proceedings, the
petitioner was attached with the 11th Battalion of the Border Security
Force in connection with the criminal case registered against the
Border Security Force personnel in the court of Additional Cachhar,
Silchar. It has been contended that in order to avoid the consequences
of implication in the criminal case, on 23rd June, 1996, the petitioner
deserted from the location of the 11th Battalion of the Border Security
Force.
3. It is an admitted position that the respondents addressed
communications dated 3rd July, 1996; 7th December, 1996; 16th January,
1997 and 17th July, 1997 calling upon the petitioner to resume duties.
In fact, by the last communication, the petitioner was even informed
that a leave request could be considered if he resume duties.
The position which emanates on the available record is that the
petitioner did not even care to acknowledge receipt of these
communications, leave aside resuming his duties.
4. A notice to show cause dated 5th May, 2003 was issued in
exercise of powers vested under sub-section 2 of section 11 of the BSF
Act read with rule 117 of the BSF Rules and in terms of rule 22(2) of
the BSF Rules, calling upon the petitioner as to why in the given facts,
he should not be dismissed from service. This notice also did not move
the petitioner at all. The orders placed on record would show that the
petitioner failed to show cause any answer to this notice.
5. It is noteworthy that this notice was premised upon and
proceeded by proceedings of a court of enquiry held in accordance
with the provisions of section 62 of the BSF Act to investigate into the
petitioner's illegal absence which had found and declared that the
petitioner was illegally absenting without leave with effect from 23rd
June, 1996.
6. In this background, the respondents were left with no option but
to proceed in the matter. An order dated 21st June, 2003 was passed
by the Commandant of the 152nd Battalion, BSF directing that the
petitioner be dismissed from service with effect from the same date.
The period of his unauthorized absence with effect from 23 rd June,
1996 to 21st June, 2003 being a total of 2562 days was directed to be
treated as "dies non" for all purposes.
7. This order caused the petitioner to finally move in the matter. It
appears that he filed a petition under Rule 28(a) of the BSF Rules
seeking setting aside of the order of dismissal. The petition was
rejected by the competent authority by an order dated 17th September,
2004. The revisional authority has noted the above facts especially
the failure of the petitioner to give any reasons for his desertion from
the force and prolonged absence from duty which culminated in the
absence of the order by dismissal despite having been given adequate
chance to resume duty by way of registered letters and issuance of the
notice to show cause prior thereto.
8. Learned counsel for the petitioner has contended that the
petitioner was prevented by strong family reasons from resuming duty.
The petitioner has advanced terminal sickness of his mother who is
stated to have been suffering from cancer as the reason which
compelled him to desert from duty. It is contended that on 23 rd
August, 1996, his family met with an accident while going to meet his
in-laws and that in this accident, his elder son who was aged about 12
years expired on the spot. It is further stated that his wife and younger
son were also severally injured and that thereafter the petitioner's wife
lost both her legs. The petitioner contends that on account of these
problems, he was suffering from depression and receiving treatment
and for this reason could not response to the communications of the
respondents.
9. We have considered the above submissions. Undoubtedly, if the
stated facts are correct, the petitioner suffered extreme trauma in
1996. However, the petitioner fails to disclose the date of expiry of his
mother. He places no record at all to support the contention with
regard to the accident on 23rd August, 1996 and the injuries which
resulted as a result thereof to his family. The petitioner mentions
these unfortunate events in 1996. But renders not a word of
explanation for his silence 2004, a long period of eight years.
10. Despite the prolonged and complete silence from the petitioner,
the respondents however, appeared to have dealt with the matter
compassionately. No penal action was proposed against the petitioner
who was repeatedly given an opportunity to report to the battalion in
order to enable the respondents to take action as per
prescribed procedure even to regularize the petitioner's absence.
11. It has been also noted that such an explanation for his
unauthorized absence has seen the light of the day for the first time
only in a communication sent to the Director General of the Border
Security Force after the passing of the order dated 17th September,
2004 more than eight years after his desertion. It appears that neither
the want of salary on account of his absence nor the repeated requests
of the respondents to resume duty moved the petitioner to do so.
12. No legally tenable ground for challenge to the impugned orders
has been even urged before this court let alone made out.
In these circumstances, we see no merit in this writ petition
which is hereby dismissed.
GITA MITTAL,J
J.R. MIDHA, J
AUGUST 27, 2010
kr
