Delhi High Court
Neeraj Kumar vs Union Of India & Ors on 15 February, 2018
$~28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1407/2018 & CM No.5840/2018
NEERAJ KUMAR ..... Petitioner
Through: Mr.Raj Singh Phogat, Advocate
versus
UNION OF INDIA & ORS ..... Respondents
Through: Ms.Shiva Lakshmi, CGSC with
Ms.Sakshi Agarwal &
Mr.Ruchir Ranjan Rai,
Advocates
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE PRATIBHA RANI
ORDER
% 15.02.2018
1. The petitioner is aggrieved by the order dated 03.03.2015,
passed by the Commandant, 3rd Battalion, ITBP, removing him from
service w.e.f. 03.03.2015, on account of his being a 'Deserter' and
treating the period of his absence from 28.09.2014 to 02.03.2015 i.e.
for 156 days as dies non for all purposes.
2. The petitioner is also aggrieved by an Office Memorandum
dated 11.10.2017, issued by the DIG, Regional Headquarter, Bareilly,
ITBP informing him that he had been removed from service vide order
No.3945 dated 03.03.2015 and as per the provisions of Rule 28 of ITB
Police Rules 1994, he ought to file an appeal, if aggrieved, within
90 days from the date of his removal from service, which in this case
had expired on 01.06.2015, whereas he had submitted an appeal only
on 27.09.2017, which was hopelessly belated and accordingly
rejected.
3. The brief facts of the case, as mentioned in the order dated
03.03.2015, passed by the Disciplinary Authority are that the
petitioner was sent to the 39th Battalion on 22.09.2014, for working on
the occasion of the 53rd Force Raising Day Parade-2014. However,
the petitioner had absented himself on 27.09.2014, without any prior
information and permission from the competent authority. The
respondents made efforts to search for the petitioner within the camp
premises. When he could not be found, an absent report of the
petitioner from the camp was registered with the local police station
Greater Noida, U.P. vide letter dated 27.09.2014.
4. The petitioner continued remaining absent thereafter due to
which Memorandums dated 14.10.2014, 15.10.2014 and 28.10.2014
were despatched at his residential address calling upon him to report
for duty with immediate effect but he had failed to do so; nor did he
addressed any letter to the respondents explaining the reasons of his
absence. Due to the persistent absence of the petitioner, the
respondents addressed a letter dated 27.10.2014 to the Superintendent
of Police, District Bhiwani, Haryana informing about his absence and
requested that he be arrested and handed over to the ITBP at Gautum
Budh Nagar, U.P. It was also stated in the letter that no steps had
been taken by the police to arrest the petitioner and nor did he report
back to the 39 Battalion or his parent Battalion Headquarter at
Bukhara Camp, Bareilly (UP).
5. Due to his continuous absence for over thirty days, without
permission or leave from the competent authority, a Judicial Enquiry
Committee was constituted on 15.10.2014, under Section 74(1) of the
Indo-Tibetan Border Police Act, 1992. The Judicial Enquiry
Committee declared the petitioner as a 'Deserter' due to his absence
w.e.f. 27.09.2014 and recommended that disciplinary action be taken
against him. On the recommendations of the Judicial Enquiry
Committee the petitioner was declared as a 'Deserter' from
27.09.2014, in accordance with Section 74(2) of ITBP Act, 1992.
Further, a copy of the Deserter order was despatched at the petitioner's
home address, leave address, as also at the address of his next kin i.e.
father. Additionally, the said Deserter notice was despatched by the
registered post to all concerned including the Civil Administration.
6. On 15.01.2015, a Show Cause Notice was issued to the
petitioner, calling upon him to report for duty within 15 days and
explain his position in writing as also his absence.
Contemporaneously, a letter was sent to the Assistant Media
Executive, DAVP Directorate, New Delhi on 17.01.2015, requesting
that a notice be published on 30.01.2015 in the local and prominent
newspapers in Haryana including 'Hari Bhomi', published from
Rohtak, giving an opportunity to the petitioner to report for duty to the
3rd Battalion Headquarter of the Respondent/ITBP or submit
documents in his favour, within thirty days from the date of issuance
of the said notice, failing which, it will be presumed that he had
nothing to state in his defence and appropriate orders would then be
passed against him. Despite such an opportunity being granted to the
petitioner, neither did he report for duty, nor did he put forward any
explanation.
7. In this factual background the impugned order dated 03.03.2015
was passed by the Disciplinary Authority, removing the petitioner
from service w.e.f. 03.03.2015, in terms of Rule 17, read with Rule 20
of the ITBP Rules, 1994. The period of absence of the petitioner from
28.09.2014 to 2.3.2015 i.e. for 156 days was treated as dies non for all
purposes.
8. The petitioner did not prefer any appeal against the order dated
03.03.2015, within the stipulated time i.e. within 90 days. Instead,
after waiting for almost 2 ½ years, he submitted a representation to the
Appellate Authority on 27.09.2017, which was rejected by Office
Memorandum dated 11.10.2017, stating inter alia that the appeal was
hopelessly belated.
9. Learned counsel for the petitioner has sought to assail the
impugned order dated 03.03.2015, passed by the Disciplinary
Authority by submitting that the Commandant, 3 rd Battalion, ITBP is
not the competent authority to pass such an order. The said
submission is, however, not borne out from the relevant Rules.
10. Annexed to Rule 17 of the ITBP Rules, that deals with
termination of services, is a table that specifies the authorities
competent to pass a dismissal order or remove, discharge, retire or
release a member of the Force. In the present case, the petitioner was
recruited as a Constable in the respondent/ITBP and as per Column 6
of said Rules, the competent authority to enrol and remove a
Constable guilty of misconduct, is the Commandant, ITBP. This
being the legal position, the submission of the learned counsel for the
petitioner that the Commandant, ITBP was not the authority
competent to dismiss the petitioner from service, is falsified.
11. We may note here that there is not a whisper in the present
petition for explaining the absence of the petitioner who deserted the
39 Battalion on 27.09.2014 and literally vanishing into thin air, till he
resurfaced after three years to submit a representation dated
27.09.2017, before the Appellate Authority. The petition is absolutely
silent on this aspect. The petitioner has badly averred that he went
home due to an 'urgent piece of work' without leave. A person as
indisciplined as the petitioner, who abandoned his place of posting
without seeking leave and did not turn up for several months
thereafter, does not deserve to remain in a disciplined Force like the
ITBP.
12. In the above facts and circumstances, we do not see any
illegality or infirmity in the impugned order that warrants interference.
13. The present petition is accordingly dismissed, as devoid of
merits, along with the pending application.
HIMA KOHLI, J.
PRATIBHA RANI, J.
FEBRUARY 15, 2018
'hkaur'
