Delhi High Court
Rakesh Kumar vs Union Of India & Ors. on 22 March, 2021
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3034/2021 & CM APPL. 9151/2021
RAKESH KUMAR ..... Petitioner
Through: Mr. Pankaj Sinha, Advocate with
Mr. Abhay Kumar Bhargav,
Advocate.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr. Anshuman, Advocate with
Mr. BNP Pathak, Advocate.
% Date of Decision: 22nd March, 2021
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE ASHA MENON
JUDGMENT
MANMOHAN, J (Oral):
1. Present writ petition has been filed challenging the dismissal order
dated 06th October, 2004 passed by the Commandant 33 BN BSF, the order
dated 25th May, 2007 passed by the DG BSF, New Delhi and the order dated
31st January, 2017 passed by the IG (PSO) FTR HQ BSF Jammu, whereby
the Petitioner's petition for reinstatement was rejected.
2. Petitioner also seeks directions to the Respondent to reinstate the
Petitioner in service with all consequential benefits.
3. Learned counsel for the Petitioner states that the Petitioner was
granted fifteen days casual leave from 28th May, 2004 to 15th June, 2004,
since the Petitioner's mother met with an accident and subsequently the
Signature Not Verified
By:MANJEET KAUR
Signing Date:23.03.2021
21:53:00
Petitioner left for Tundla. He states that though the Petitioner's mother was
discharged from the hospital on 04th May 2006, yet her mental condition was
not stable and subsequently, the Petitioner took her to the psychiatrist. He
points out that the psychiatrist recommended that the Petitioner's mother
should not be left alone and hence the Petitioner had to stay back.
4. He states that the Petitioner sent a letter on 14th June 2004 by way of
UPC to the Commandant 33 BN BSF wherein the Petitioner intimated the
Commandant about the circumstances and requested for extension of leave.
He states that the Petitioner's mother was taken to Kayamini Hospital Agra
where she was further referred to AIIMS Delhi and her treatment lasted for
almost a month. He states that the doctors at AIIMS advised that the
Petitioner's mother should not be left alone because she was under mental
trauma.
5. He further states that the Petitioner was directed to re-join duty
immediately vide letter dated 05th July 2004, however the letter was received
by the Petitioner's father who failed to inform the same to the Petitioner.
6. Learned counsel for the Petitioner states that subsequently, the
Commandant ordered a Court of Inquiry against the Petitioner on 23rd July
2004 which was conducted in the Petitioner's absence. He states that the
Court of Inquiry opined that the Petitioner has failed to communicate any
reasonable cause for overstaying from the authorised leave of absence and
therefore the Petitioner is liable for disciplinary proceeding.
7. He states that the Petitioner was dismissed from service vide
impugned order dated 06th October 2004 under Section 11(2) of the BSF Act
R/w Rule 177 and Rule 22 of the BSF Rules 1969 without a trial.
8. He further points out that the Petitioner sent representations to the DG
Signature Not Verified
By:MANJEET KAUR
Signing Date:23.03.2021
21:53:00
BSF, Human Rights Commission, Ministry of Home Affairs, Prime
Minister's Office, IG BSF and Ministry of Defence wherein the Petitioner
requested reinstatement in service. He states that the representation of the
Petitioner was rejected vide impugned letter dated 31st January 2007 by the
IG (PSO) FTR HQ BSF Jammu.
9. Having perused the paper book, this Court finds that the present
petition is barred by delay and laches as the cause of action to file the
present writ petition arose on 06th October, 2004 or latest by 25th May, 2007
when IG, BSF rejected the petitioner's representation under Rule 28A of
BSF Rules, 1969.
10. Further, this Court finds that no contemporaneous medical record of
petitioner's mother has been placed on record.
11. At this stage, learned counsel for the Petitioner prays that the
Petitioner be allowed to place on record the medical record of Petitioner's
mother. However, the said prayer is declined as the Petitioner had ample
time i.e. 17 years time before filing this petition. Further, the present writ
petition has already been adjourned on two previous occasions at the request
of learned counsel for the Petitioner. Consequently, the prayer for
adjournment is declined.
12. Also no receipt of Petitioner's letter dated 14th June, 2004 has been
placed on record except enclosing a UPC receipt which in itself does not
inspire confidence.
13. In fact, the order passed by the IG (PSO), FTR HQ BSF, Jammu,
reveals that despite sending Apprehension Roll dated 13th August, 2004 to
Superintendent of Police, Agra, Petitioner could neither be apprehended nor
traced at home or in Agra. In the said order, it has also been stated that
Signature Not Verified
By:MANJEET KAUR
Signing Date:23.03.2021
21:53:00
representative of Superintendent of Police, District Agra, in his report dated
29th September, 2004 stated that Petitioner had left for duty after availing
leave.
14. Consequently, the version put forward by the Petitioner inspires no
confidence and is not borne out from the contemporaneous record.
15. Accordingly, the present writ petition along with pending application
being bereft of merits as well as grossly barred by delay and laches is
dismissed.
MANMOHAN, J
ASHA MENON, J
MARCH 22, 2021
KA
Signature Not Verified
By:MANJEET KAUR
Signing Date:23.03.2021
21:53:00
