Delhi High Court
Dharambir vs Union Of India & Ors. on 28 January, 2015
Author: Pradeep Nandrajog
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : January 28, 2015
+ W.P.(C) 6534/2014
DHARAMBIR ..... Petitioner
Represented by: Mr.Raj Kumar Sherawat, Advocate
versus
UNION OF INDIA & ORS ..... Respondents
Represented by: Mr.Manish Mohan, Advocate with
Ms.Suparna Srivastava and
Mr.Kumar Harsh, Advocates for R-1
and R-2
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J. (Oral)
1. The petitioner prays to the Court that the orders dated July 08, 2014
and July 19, 2014, declaring him to be an absconder be quashed. He be
permitted to resumed duties. All punishments levied upon him in the past be
declared illegal and hence quashed. Consequential benefits including back
wages be directed to be paid.
2. Relevant facts to be noted would be that the petitioner was enrolled as
a Constable (GD) in the Border Security Force on April 01, 1988 and at
different points of time was attached to the different battalions of the Border
Security Force. Attached with the 92nd Bn., on compassionate grounds, on
June 18, 2009 the petitioner was posted to the 33rd Bn. of the Border
Security Force which was then stationed at Hissar in the State of Haryana.
The 92nd Bn. was stationed at Nadia in the State of West Bengal. When
relieved from the 92nd Bn., granting him journey period time and 10 days
earned leave the petitioner was required to report to the Battalion
Headquarter of the 33rd Bn. at Hissar on August 25, 2009. He did not do so
in spite of the two registered letters being sent at his permanent address on
October 15, 2009 and October 26, 2009. Overstaying leave by 65 days the
petitioner reported to the Headquarters of the 33rd Bn. at Hissar on October
29, 2009. Before the matter could be processed concerning the leave
overstayed by the petitioner, without obtaining any leave or permission from
the Commandant of the Battalion, the petitioner left the Unit to which he
was attached on November 09, 2009. A letter was sent on November 19,
2009 at the permanent address of the petitioner requiring him to report for
duty.
3. An order to apprehend the petitioner and produce him before the
nearest Battalion of the BSF was issued to the Superintendent of Police,
Jhajjar, for the reason the permanent address of the petitioner is Village
Silani, District Jhajjar in the State of Haryana. The said order could not be
executed as the petitioner was not to be found at his residence. Another
order requiring petitioner to be apprehended and produced before the nearest
Battalion of the BSF was issued on December 07, 2009. Various
apprehension orders were issued which could not be executed. Petitioner
joined duty on April 28, 2010. He was absent without leave for 129 days.
4. This being a violation of Section 19(a) of the BSF Act an offence
report was put up to the Commandant of the 33rd Bn. who, after hearing the
petitioner, found him guilty and awarded him a sentence to the undergo
rigorous imprisonment in force custody for 28 days on January 10, 2011.
The period of unauthorized absence of 129 days was treated as dies non.
5. Past service record of the petitioner would show propensity to
repeatedly overstay leave, and put in a tabular form, the same would be as
under:-
S.No. From To Type of Total Days Type of
Absence disposal of
absence period
01 15.03.90 28.03.90 OSL 14 days Regularised
02 24.03.93 28.04.93 OSL 64 days Regularised
03 14.06.93 22.06.94 OSL 09 days Regularised
04 01.09.02 19.12.02 AWL 110 days Regularised
05 06.07.03 22.09.03 OSL 79 days Regularised
06 22.03.04 20.07.04 OSL 103 days Regularised
07 10.06.06 01.09.06 OSL 84 days Regularised
08 07.08.08 20.09.08 OSL 45 days Regularised
09 25.08.09 28.10.09 AWL 65 days Regularised
10 09.11.09 26.11.09 AWL 18 days Regularised
11 27.11.09 19.12.09 AWL 23 days Regularised
12 20.12.09 27.04.10 AWL 129 days Dies Non + 28
days RI in
Force custody
13 08.09.13 18.10.13 AWL 41 days Regularised
14 04.12.13 30.12.13 OSL 27 days Regularised
15 06.03.14 25.03.14 OSL 19 days Regularised
16 17.06.14 08.11.14 AWL 145 days Case is pending
for disposal
6. On January 01, 2014 the petitioner submitted an application to the DG
BSF levelling all and sundry allegations against his superior officers in the
33rd Bn. of the BSF. A staff court of inquiry was ordered. The findings
returned were that the allegations levied by the petitioner were frivolous and
thus on June 07, 2014 he was issued a warning letter directing him to desist
from levelling false allegations in future.
7. During an annual changeover of the various Battalions of the BSF, the
32nd Bn. which was located at Akhnoor in the State of Jammu & Kashmir
was to be replaced by 33rd Bn. which was located at Hisar requiring a
personnel of the 33rd Bn. to proceed to Akhnoor. The personnel were
scheduled to move from Hissar Railway Station to Samba Railway Station
on June 15, 2014. The petitioner as also the other personnel were issued the
movement order on June 14, 2014. The personnel reached Samba Railway
Station, which included the petitioner, by a special train on June 16, 2014.
The petitioner suddenly disappeared with his belongings when, proceeding
from the Railway Station at Samba, the personnel of the Battalion reached
Akhnoor.
8. It was under these circumstances that the orders dated July 08, 2014
followed by the order dated July 19, 2014 were issued declaring the
petitioner to be an absconder.
9. Investigation revealed that along with other force personnel the
petitioner got down at the Samba Railway Station he withdrew six times
money from the ATM of State Bank of India in Jammu.
10. Aforesaid facts would evince that the petitioner is a habitual
absconder. He was rightly declared to be an absconder. The penalty levied
on January 10, 2011 cannot be challenged by the petitioner by filing a writ
petition after 3 years and 9 months of the penalty levied. The facts noted
hereinabove justify issuance of the orders dated July 08, 2014 and July 19,
2014.
11. For record we may note that the petitioner has since joined the
Battalion at Akhnoor and for his act of absconsion the department is in the
process of initiating departmental action against the petitioner; which is the
right of the department to so do.
12. Needless to state if the petitioner has any issue concerning the penalty
if levied upon him with respect to the misdemeanour of absconding from
Samba Railway Station he would be entitled to remedy as per law.
13. The writ petition is dismissed but without any order as to costs.
CM No.15588/2014
Dismissed as infructuous.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
JANUARY 28, 2015
mamta
