Ex.L/Nk.Fateh Singh vs Uoi & Ors.
2011 Latest Caselaw 4688 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Decision: 22nd September, 2011

+                       W.P.(C) 987/1999

        EX.L/NK. FATEH SINGH                       ..... Petitioner
                       Through:     Mr.Anil Gautam, Advocate.

                               versus

        UOI & ORS.                              .... Respondents
                        Through:    Mr.D.S.Mehandru, Advocate with
                                    Dy.Comdt.Bhupinder Sharma,
                                    BSF.

        CORAM:
        HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR.JUSTICE SUNIL GAUR

     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. (Oral)

1. Working as a Constable with BSF, Fateh Singh i.e. the petitioner was granted 45 days' leave commencing from 5.4.1990, requiring him to join on 21.05.1990 since leave period would be over on 20.05.1990. He did not join back. Two letters, dated 19.5.1990 and 20.6.1990 were received by the department in which he sought leave to be extended informing that he had fallen sick. No medical papers were enclosed therewith, pleadings to the contrary in the writ petition, are without any proof of any medical papers being sent along with the two letters and for which we would highlight that in neither letter there is a mention nor there is a mention of any certificate

being enclosed; none is even referred to.

2. On 3.7.1990 petitioner sent a letter informing that due to poor health his resignation be accepted.

3. The department wrote in response that this was no way to resign. Procedures required Fateh Singh to join service and then tender a proper resignation as per rules.

4. Petitioner did not join till 8.10.1990. On 8.10.1990 the Commandant issued a notice in exercise of the administrative power of dismissal vested in him under Section 11 of the BSF Act for which the procedure prescribed is as per Rule 22 of the BSF Rules intimating petitioner the tentative decision taken to dismiss petitioner from service for being an undisciplined soldier on account of continued unauthorized absence. No response was received. Petitioner did not join back and this led to petitioner being dismissed from service on 5.11.1990.

5. Matters rested till petitioner awoke from a slumber and after about 7 years, filed a representation under Rule 28A of the BSF Rules, before the Director General BSF on 30.9.1997 in which he stated that for all these years he had remained ill and was under treatment from tantriks and vaids and obviously had no proof for the same, in any case furnish none. What was the illness from which he was suffering was not disclosed. On 16.4.1990 the Director General BSF dismissed the representation holding that there was no merit therein and this led the petitioner to file the instant petition.

6. On the strength of a decision of a Division Bench of this Court delivered on 19.10.2006 in WP(C) No.4796/1998 Ex.HC Satpal Singh vs. Union of India & Ors. it is urged that under Rule 22 of the BSF Rules, administrative power of dismissal can be inflicted upon recording a specific satisfaction that the trial of

the person against whom action was proposed is inexpedient or impracticable. Counsel highlights that neither in the show-cause notice, nor in the order passed by the Commandant, it has been so highlighted.

7. Indeed, sub-rule 2 of Rule 22 of the BSF Rules has been interpreted as above in the decision in Satpal Singh's case (supra), but we decline relief to the petitioner for the reason delay and laches would hit any claim predicated by the petitioner. He was dismissed from service on 5.11.1990. He rose from the slumber like a Rip-Van-Winkle after 7 years when he filed the statutory petition before the Director General BSF, for which we find limitation prescribed is 3 months as per the proviso to Rule 28A of the BSF Rules.

8. We highlight that even along with the writ petition, the petitioner has furnished no proof of continued medical infirmity save and except a medical prescription wherein he has been prescribed for a period of 3 days, tablet Voveran, Syrup Enthral and a tablet for digestion. Now, Voveran is a well known pain killer and Syrup Enthral, we know not its benefits as nobody in Court today has enlightened us. Tablet for digestion is popped by all and sundry at the drop of the hat.

9. It also needs to be highlighted that the petitioner has himself sent a letter of resignation. He did so when he had yet to attain pensionable service, as he joined service in the year 1978 and pensionable service, then was 20 years and thus it hardly matters whether his resignation was accepted or he was dismissed from service.

10. The cause sought to be resuscitated when representation under Rule 28A of the BSF Rules, required to be sent within 3 months, were sent after nearly 7 years, is incapable of being

brought to life and thus the writ petition is dismissed.

11. No costs.

PRADEEP NANDRAJOG, J.

SUNIL GAUR, J.

SEPTEMBER 22, 2011 dk