Delhi High Court
Abhimanyu Singh vs Union Of India Through Its Home ... on 25 November, 2013
Author: Gita Mittal
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6752/2013
% Date of decision: 25th November, 2013
ABHIMANYU SINGH ..... Petitioner
Through : Mr. Pradeep Kumar Yadav, Adv.
versus
UNION OF INDIA THROUGH ITS HOME SECRETARY &
ORS. ..... Respondent
Through : Ms. Barkha Babbar, Adv.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE DEEPA SHARMA
GITA MITTAL, J (Oral)
1. The respondents are present on advance notice and have produced
the relevant record.
2. By way of the present writ petition, the petitioner has sought
setting aside of the order dated 28th October, 1995, whereby, the
petitioner was administratively dismissed from services on the ground
that he was absent without leave w.e.f. 11th May, 1995 till date of passing
of such order.
3. This order was passed after issuance of notice to show cause to the
petitioner. The petitioner rests on the sole ground that while posted with
11th Battallion of BSF since 8th May, 1995 at the Dhol Chera, Assam, he
received a letter from his home with regard to sickness of his wife and
children. It is submitted that his leave application through proper channel
was not granted. The petitioner was distressed upon the news of illness of
his wife and children and he could not bear the ensuing anxiety . Being
stressed and in a fit of emotions, the petitioner left his Unit on 11 th May,
1995 for his home in the State of Bihar. As a result of the condition of his
wife and children and having just recovered from injury in a grenade
attack, while on duty in Jammu and Kashmir, the petitioner went into
deep depression.
4. It is also submitted that the petitioner remained hospitalized for the
treatment of such depression. In support of the writ petition, the
petitioner placed reliance on copies of two letters claimed to have been
written by his wife dated 10th August, 1998, and the other or undated
letter to the Commanding of the 11th Battalion of BSF.
5. We may note that the petitioner has filed typed copies of these two
communications which were purported to have been sent years after the
passing of the impugned order dated 28th October, 1995. These letters
nowhere contain any reference to the sickness of the petitioners' family
members i.e. his wife and children and make no reference of the fact that
their sickness necessitated the petitioner to leave urgently without having
sanctioned leave from his unit.
6. The letters are not supported by any proof from dispatch by the
author of the letter or its receipts by the respondents. The
respondents before us dispute the receipt of these letters. Be that as it
may, these letters are claimed to have been sent long after the passing of
the impugned order dated 28th October, 1995 whereby the petitioner was
removed from services.
7. The record placed before us by the respondents reflects that after
the petitioner disappeared on 11th May, 1995 from the Unit, the
respondents initiated proceedings for his apprehension. We are informed
that on 11th May, 1995, apprehension for the petitioner was sent to the
Superintendent of Police, District Vaishali, Bihar having jurisdiction for
the petitioner's home town.
8. This was not a fruitful exercise inasmuch as, the petitioner did not
return to the Unit. On expiry of 30 days of unauthorized absence of the
petitioner, a court of enquiry was held by the respondents to enquire into
the circumstances under which, he was absenting w.e.f. 11 th May, 1995
under the provisions of section 62 of BSF Act.
9. The respondents, thereafter issued a notice to show cause dated
25th July, 1995 informing the petitioner about the tentative proposal to
terminate his services by way of dismissal on account of long period of
absence without sanctioned leave calling upon the petitioner to show
cause against the same.
10. The petitioner was given opportunity to make his representation
and place his defence before the Commandant of the 11th Battalion, BSF
on or before 24th August, 1995 failing which, it was to be presumed that
the petitioner had no defence to put forth.
11. The petitioner failed to respond to this notice. As a result, the
respondent passed an order dated 28th October, 1995 being satisfied that
the petitioner's absence without leave was without any reasonable cause.
The petitioner was dismissed form service w.e.f. of 28th October, 1995.
The respondent also directed that the period of petitioner's absence w.e.f.
11th May, 1995 to 28th October, 1995 be treated as dies non.
12. The above narration manifests that the impugned order was passed
after due compliance with the requirements of the statute as well as
principles of natural justice and cannot be subject to a challenge for any
violation thereof.
13. We have been informed that the petitioner had on prior six
occasions also either absented himself or proceeded on leave without
getting them sanctioned and orders for regularising such leave were
passed in this regard. Details of the absence from duty have been placed
before us. Inasmuch as impugned action was not premised on these
instances of the petitioner's absence without leave, this aspect of the
matter does not require detain us any further.
14. We may note that in the writ petition, the petitioner has claimed
that his wife has addressed the letter dated 10 th August, 1998 to the
Commandant of 11th Battalion with regard to the petitioner's
deteriorating state of health. As per the copy placed on record of the
letter dated 10th August, 1998 written by Smt. Renu Devi, wife of the
petitioner, it has been mentioned therein that due to deterioration of his
mental condition, the petitioner came out without sanction of any leave.
She stated that she had not received any reply from the unit and
requested the authorities not to disturb the livelihood of the family. She
also informed that she was getting his treatment done and after some
improvement she would send the petitioner to the unit.
15. The second representation purportedly sent by petitioner's wife
addressed to the Director General of the BSF has also been placed on
record. The petitioner's wife has admitted the petitioner's fault and
pardon thereof has been sought.
16. The writ petition as well as the representations to the respondents
do not explain any sufficient grounds which would enable the authorities
to consider the aspect of the petitioner's sickness. In any case, the long
period of absence unauthorisedly from a disciplined force as the Border
Security Force, in the facts and circumstances as laid down does not
permit condonation of the petitioner's unauthorized absence from duty.
17. We may note that the writ petition has been filed after more than
18 years of the passing of the impugned order dated 28 th October, 1995
which by itself would merit rejection of the petition on account of
unexplained delay and laches. Be that as it may, we have otherwise
considered the petitioner's case on the merits of the contentions raised in
the petition.
18. We find no merit in the writ petition which is hereby dismissed.
19. No order as to costs.
GITA MITTAL, J
DEEPA SHARMA, J
NOVEMBER 25, 2013
j
