Radhey Shyam Pandey vs Union Of India And Ors
2012 Latest Caselaw 4449 Del

21
*         IN THE HIGH COURT OF DELHI AT NEW DELHI

     +      W.P.(C) 2699/2012 and CM Nos.5808-10/2012

%                                 Date of decision: 27th July, 2012

         RADHEY SHYAM PANDEY            ..... Petitioner
                      Through : Mr. K.K. Mishra, Adv.

                      versus

         UNION OF INDIA AND ORS         ..... Respondents
                        Through : Mr. Himanshu Bajaj, Adv.

         CORAM:
         HON'BLE MS. JUSTICE GITA MITTAL
         HON'BLE MR. JUSTICE J.R. MIDHA

                          JUDGMENT (ORAL)

1. The instant writ petition assails the order dated 24 th

November, 1993 passed by the Commandant, 163 Battalion

(respondent No.3 herein) and the order dated 27 th December,

2005 passed by the Director General, Border Security Force,

Lodhi Road, New Delhi (respondent No.2 herein).

2. The facts giving rise to the instant petition to the extent

necessary are briefly noticed hereafter. In the year 1990, the

petitioner was appointed as a Constable in Border Security

Force (BSF). In the year 1993 while he was posted with 163

Battalion of the BSF at Shillong, he proceeded on 45 days

earned leave with effect from 13th May, 1993 to 29th June, 1993

for the reason of his sister's marriage. The petitioner has

claimed that there was a spate of bereavements in his family

between 13th May, 1993 and July, 1995. In the writ petition, it

is urged by the petitioner that real uncle of the petitioner died

on 17th May, 1993; his father died in June, 1993; his

grandmother died in July, 1995 and wife of his elder brother

died on 2nd January, 1995. The petitioner also claims that he

was suffering from a number of diseases between 10 th July,

1993 and 24th September, 1993. The fact of the case is that

the petitioner did not return to duty and rejoin his battalion

despite expiry of his sanctioned leave. He was required by the

respondents to join his duty by the letter dated 8th July, 1993

but he neither responded to the letter nor returned for duty.

As a consequence, in terms of Section 62 of the BSF Act, a

Court of Inquiry was conducted to investigate the reasons

under which the petitioner was overstaying the leave.

3. The respondents took action on the findings of the Court

of Inquiry. A show cause notice was issued to the petitioner by

the letter dated 3rd November, 1993 giving him a time of 15

days up to 18th November, 1993. A direction was also given to

the petitioner to urge his defence against the proposed action

of dismissal for his absence without leave. The petitioner did

not care to avail even this opportunity.

4. In this background, the Commandant of 163 Battalion,

BSF after having satisfied that the petitioner was overstaying

the leave with effect from 30th July, 1993 without sufficient

cause has found that his further retention in the force was

undesirable. Therefore, by an order passed on 24 th November,

1993, the petitioner was dismissed from service with

immediate effect under Rule 177 of the BSF Act, 1968. it was

further directed that his period of absence would be treated as

'Dies Non' and he was struck off the strength from the unit. It

is noteworthy that as on the date of passing of the last order,

the petitioner had been absent from duty without sanctioned

leave for a period of 148 days (almost 5 months).

5. A perusal of Rule 28A of the BSF Act would show that

inasmuch as the petitioner was dismissed when he was posted

at Shillong, his appeal would lay to the Inspector General who

was having jurisdiction over the Shillong area. No appeal was

preferred by the petitioner against the said order to the

competent authority.

6. It appears that instead, after expiry of almost one year of

passing of the dismissal order, the petitioner preferred a non-

statutory representation dated 4th November, 1994 to the

Office of the Director General. The same has not been placed

before this court. The petitioner appears to have met in the

office of the Director General. No copy thereof is forthcoming

on the available record.

7. The petitioner, however, placed before this court a copy

of the representation dated 11th September, 1996 made by

him to the Director General of the BSF. He has urged that he

was from the financially backward area, referred to his family

structure and that he had suffered fever on 22nd June, 1993

resulting in weakness, anaemia and deterioration digestive

system. The copies of the medical certificates have been

annexed thereto. This was the explanation which he tendered

to the Director General and prayed that his service be not

terminated on humanitarian grounds.

8. Inasmuch as no action was taken on his non-statutory

representation, the petitioner appears to have invoked the

jurisdiction of the High Court Adjudicature of Allahabad by way

of W.P.(C)No.67665/2005. This writ petition was disposed of

by an order dated 25th October, 2005 with a direction to the

Director General of the BSF to consider and decide the

petitioner's representation dated 4th November, 1993 by

means of reasoned and speaking order.

9. It appears that the reference to the representation dated

'4th November, 1993' was typed by mistake in the order of the

court instead of '4th of November 1994'. In the order which

was passed by the Director General on 22 nd December, 2005,

the Director General has found that the petitioner had not

cared to inform the battalion about his absence and made no

correspondence with the unit in this regard. It has been

noticed that no response was received to the notice to show

cause served on him on 3rd November, 1993.

10. It may be noted that in the representation made on 4 th

November, 1994, the petitioner refers to death of one uncle,

accident of another uncle in 1993, death of his mother, his

younger brother's wife and elder uncle during 1994. The

petitioner was absent without leave after 29th June, 1993.

Certainly, the deaths which have occurred thereafter could not

have contributed to his overstaying of leave w.e.f. 29th June,

1993. The Director General has also noticed that he has failed

to even provide in the representation specific dates of the

deaths of his relatives so that there could be any linkage

established with the overstaying of leave period.

11. In this background, the representation dated 4 th

November, 1994 was rejected by the Director General who

found that the order of dismissal of the petitioner was issued in

accordance with the provisions of the BSF Act and the Rules

thereunder.

12. Learned counsel for the respondents before us has also

urged delay and laches as an objection to the maintainability

of the writ petition. Learned counsel for the petitioner has

contended before this court that the action of the respondents

is illegal being violative of principles of natural justice. It is

contended that no adequate notice to show cause was served

upon the petitioner. In response to the objection based on

delay and laches in filing of the writ petition, learned counsel

has submitted that the petitioner was dependent on legal

advice and submits that he had tried his best and had run from

pillar to post to find out whether his petition had been filed. He

submits that he had approached a counsel in Allahabad to file

the matter but the appeal was not filed. He also submits that

he had received legal advice to file an appeal against the order

of the High Court of Allahabad dated 3rd August, 2006 which

has dismissed his writ petition also on the ground of want of

jurisdiction.

13. We also find that there are unexplained delay and laches

for challenging the decision of the Commandant which was

dated 24th November, 1993.

14. An objection has also been taken on the ground of

territorial jurisdiction. The above narration of facts would show

that the petitioner has hopelessly failed to establish any case

on merits which could entitle him to relief in the present

proceedings. The impugned order of termination of service

was passed at Shillong as noticed hereinabove. The petitioner

had a statutory remedy of appeal to the Inspector General of

the Shillong area which he failed to invoke.

15. So far as the order of the Director General dated 27 th

December, 2005 is concerned, the same has been passed on a

non-statutory representation made by the petitioner to comply

with the order dated 3rd August, 2006 passed by the High Court

of Allahabad in the previous writ petition.

16. So far as compliance with the principles of natural justice

is concerned, the respondents conducted a Court of Inquiry

and only thereafter took a prima facie view and gave an

opportunity to the petitioner to show cause by issuance of the

notice to 'show cause'. The petitioner failed to respond to the

same. It is an admitted position before us that the first

representation made by the petitioner was also inordinately

delayed and made by him only on 4th November, 1994. None

of the objections sought to be urged in the petition has ever

been urged by the petitioner before.

17. For all the foregoing reasons, we do not find any merit in

the writ petition. The writ petition and applications are hereby

dismissed.

GITA MITTAL, J

J.R. MIDHA, J JULY 27, 2012 aj