Ex.Naik Rajeshwar Singh vs Uoi & Ors.
2011 Latest Caselaw 1316 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Decision : 7th March, 2011

+                       W.P.(C)4109/1999

        EX-NAIK RAJESHWAR SINGH                ..... Petitioner
                  Through: Mr.R.N.Sharma, Advocate


                              versus


        UOI & ORS.                            .....Respondents
                  Through:    Dr.Ashwani Bhardwaj with
                              Asstt.Cmdt.Bhupinder Sharma, BSF


         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?
     3. Whether the judgment should be reported in the Digest?

PRADEEP NANDRAJOG, J.

1. Proceeding on 15 days' leave commencing from 13.6.1991 up to 28.6.1991, petitioner overstayed leave by 45 days. The misdemeanour was overlooked. Proceeding on 60 days' leave sanctioned from 3.5.1993 till 5.7.1993, petitioner overstayed leave by 74 days. The misdemeanour was also overlooked.

2. Availing 10 days' sanctioned leave commencing

from 11.9.1995, requiring petitioner to re-join on 22.9.1995, petitioner did not join the Unit. Two reminders were sent to him to report back. The first was on 29.9.1995 and the second on 27.10.1995. Petitioner did not join back. On 2.11.1995 he submitted a resignation on a plain paper. It was sent by post. Responding to the petitioner on 21.11.1995, he was informed to join back and submit a proper resignation and complete the codal formalities to enable the department to process his resignation. Petitioner did not respond.

3. A Court of Inquiry was held ex-parte and for which we find there is sufficient power in the respondents to do so. The source of power is Section 62 of the BSF Act 1968. Needless to state the proceedings of the Court of Inquiry evidenced petitioner being on unauthorized absence. It was reported that no application seeking leave to be extended, much less with reason or justification was received.

4. Considering the record of inquiry the Commandant of the Unit issued a show cause notice dated 23.12.1995 informing the petitioner that action was proposed to be taken against him on account of continued unauthorized absence and for which petitioner was called upon to furnish a response.

5. No response being received, exercising power conferred by Section 11 read with Rule 22 and Rule 177 of the BSF Rules 1969, dispensing with a trial, penalty of dismissal from service was inflicted upon the petitioner who arose from his slumber after water had flown down the bridge. He made a belated representation taking a stand that on account of death of his mother he was depressed and this he took as a ground

not to join back.

6. We note that the representation was sent on 3.12.1998. It is apparent that the petitioner was taking not only a belated action, but a frivolous one.

7. No redressal was granted to the petitioner and hence the instant writ petition.

8. We note that along with the writ petition no documents have been filed evidencing that the petitioner took medical treatment for depression from any authorized doctor.

9. The only contention urged is that without a trial, much less a charge-sheet, petitioner could not have been dismissed from service.

10. The issue stands covered against the petitioner by a judgment and order dated 21.3.2006 inn WP(C)No.6577/2002 Ex.Const.Akhilesh Kumar Vs. D.G., BSF & Ors.

11. On account of unauthorized absence Court of Inquiry was ordered in terms of Section 62 of the BSF Act. Order was passed terminating the service after a show cause notice was served exercising power under Section 11 of the BSF Act read with Rules 22 and 177 of the BSF Rules 1969 of the BSF Rules 1969.

12. The Division Bench held as under:-

"A Court of Inquiry was ordered in terms of provisions of Section 62 of the BSF Act and Rules to find out the circumstances under which the petitioner was overstaying his leave. An apprehension roll was also issued by the BSF to the Superintendent of Police, Kannoj District. However the petitioner could not be contacted during the pendency of the Court of Inquiry. On completion of the Court of Inquiry as per

the remarks of the Commandant of the COI a show cause notice was issued to the petitioner directing him to reply by 17th November, 2000 failing which action of dismissal from service would be taken against the petitioner. The aforesaid show cause notice which was issued to him was also sent to him at his home address. He did not file any response to the aforesaid show cause notice also. Thereafter the impugned order was passed dismissing the petitioner from service in terms of the provisions of Section 11(2) read with Rule 177 of the BSF Rules.

Being aggrieved of the aforesaid action this writ petition is filed on which we have heard the learned counsel appearing for the parties. Counsel for the petitioner has submitted before us that the petitioner was on leave and he was receiving medical treatment for a head injury. On going through the record we find that the petitioner had undergone surgery for Arachanoid Cyst Temporal Lobe. However after the said period the petitioner joined 30 Bn. BSF on 27th October, 1995. The petitioner for the said period i.e. from 1st June, 2000 to 16th July, 2000 was found to be roaming here and there as stated by his own father. It is also indicated from the said report submitted by the police that the petitioner was not interested to rejoin duties. The petitioner belongs to a disciplined force and therefore it was incumbent upon him to inform the respondents regarding his absence even if there was any difficulty for the petitioner to rejoin the duties. He ignored all notices issued to him by the respondents directing him to rejoin his duties. Having no other alternative, action has been taken against the petitioner in accordance with the provision of Section 11 of the BSF Act. Under similar circumstances actions taken by the respondents exercising power under the same provision of law have been upheld. In that regard our attention is drawn to a Division Bench decision of this Court in Ex.Ct.Raj Kishan v. Union of India and Others

- CWP No.7665/2001, disposed of on 4th September, 2002. In the said decision also a similar issue came

up for consideration before this Court. It was held in the said decision that since the show cause notice issued to the petitioner was in accordance with law and incorporated the opinion of the Commandant that retention of the petitioner in service was undesirable and since his trial by security force court was held to be inexpedient and impracticable and therefore there is no illegality or irregularity in passing the impugned order. Similar is the situation in the present case also. Competent authority in the show cause notice recorded that retention of the petitioner in service was undesirable and his trial by security force court was inexpedient and impracticable. Cases of Gauranga Chakraborty v.State of Tripura reported in (1989) 3 SCC 314 and Union of India v. am Pal reported in 1996 (2) SLR 297 were also referred to wherein it was held that the power exercised by a Commandant under Section 11(2) read with Rule 177 was an independent power which had nothing to do with the power exercisable by a security force court and once show cause notice was issued in terms thereof, no further inquiry was required to be held if the delinquent person failed to reply to the notice and to deny the allegations in the process.

xxx xxx xxx

Considering the facts and circumstances of this case we are of the considered opinion that ratio of the aforesaid decisions of this Court as also of the Supreme Court are squarely applicable to the facts and circumstances of this case as in the present case also the independent power vested in the Commandant under Section 11(2) read with Rule 177 was exercised after issuing show cause notice to the petitioner in terms thereof. Therefore we hold that no further inquiry was required to be held in view of the fact that the petitioner has failed to file any reply to the show cause notice and to deny the allegation in the process.

In a recent decision of the Supreme Court in State of Rajasthan and Another v. Mohammed Ayub Naz reported in 2006 I AD (SC) 308 the Supreme Court after referring to many other precedences has held that absenteeism from office for prolong period of time without prior permission by the Government servant has become a principal cause of indiscipline which have greatly affected various Government services. It is also held that in order to mitigate the rampant absenteeism and wilful absence from service without intimation to the Government the Government has promulgated a rule that if the government servant remains willfully absent for a period exceeding one month and if the charge of willful absence from duty is proved against him, he may be removed from service. The Supreme Court held that the order of removal from service passed in the said case was the only proper punishment to be awarded in view of the fact that Government servant was absent from duty for long period without intimation to the Government. Ram Pal (supra) is also a case where action was taken by the respondents under the provisions of Section 11(2). In the said decision it was held that once a show cause notice is issued recording tentative opinion as required, nothing further was required to be done in the said case as the employee did not reply to the notice. Therefore it was held that as there was no denial of the allegation nor was there any request for holding an inquiry, therefore the action taken is justified.

Facts of the said cases are similar to the facts of the case in hand and therefore we are bound by the ratio of the aforesaid decisions which laid down the law. In terms of the said decisions, we have no other option but to hold that the petitioner has failed to make out any case for interference under Article 226 of the Constitution. We find no merit in the petition and the same is dismissed."

13. Accordingly, noting that the petitioner is a habitual

defaulter and has a habit of not reporting back on time; noting in the instant case that the petitioner, on the third occasion, never reported back at all and questions his termination which took place in the year 1995 by raising an issue in the year 1998 we dismiss the writ petition.

14. No costs.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE MARCH 07, 2011 rk