Jharkhand High Court
Sumit Ranjan Sinha vs The Union Of India & Others on 18 October, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (S) No. 149 of 2009
Sumit Ranjan Sinha ... ... Petitioner
Versus
The Union of India & Others ... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Sushant Kumar, Advocate
For the Respondents : Mr. Madan Prasad, Advocate
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27/18.10.2022
1. Learned counsel for the parties are present.
2. Learned counsel for the petitioner has submitted that the
provisions of Section 62 of the Border Security Force Act, 1968 and
Rule 22 of Border Security Force Rules, 1969 has not been followed.
He also submits that the error in the procedure is on account of the
fact that there has been no declaration of the petitioner as 'deserter' in
terms of Section 62 (2) of the Act. He also submits that after declaring
a person as deserter in terms of Section 62(2), a report is required to
be put before the competent authority who is required to issue a show
cause in terms of Section 62(2). He submits that the stage of issuance
of show cause under Section 62(2) does not crystalize unless a person
is declared deserter on the basis of a report in terms of Section 62(2)
of the Act.
3. The learned counsel has further submitted that the allegation
against the petitioner is absence from duty from 21st September, 2006
onwards and the petitioner was dismissed from service on 07.04.2007.
He submits that the show cause as contained in Annexure-5 dated
05.02.2007 though has been termed as a show cause in terms of Rule
22 (2) of the Rules , but the same cannot be treated as a show cause in
terms of Rule 22 (2) in view of the fact that the petitioner was never
declared as deserter. The learned counsel further submits that the
petitioner had filed a representation before the competent authority
which was considered under the provisions of Rule 28 'A' of B.S.F.
Rules and was rejected vide non speaking order dated 1st July, 2008.
4. The learned counsel for the petitioner has relied upon a
judgment passed by the Hon'ble Division Bench in L.P.A. No. 751 of
2019 and he submits that the point involved in the present case
regarding non-adherence to Section 62 of that Act and Rule 22 of
Rules is squarely covered by the said judgment and facts are almost
identical.
5. The learned counsel has also submitted that the reason for
absence of the petitioner was on medical ground of himself and his
mother. However, during the course of argument, no material has been
shown from the side of the petitioner regarding his or his mother's
ailment during the period involved in the present case.
6. Further the point regarding non-observance of the rules has not
been raised in the writ petition, to which the learned counsel for the
petitioner has submitted that the observance of the rules is a point of
law and therefore, argument has been advanced on such point which
may be considered.
7. Learned counsel appearing on behalf of the respondents, on the
other hand, has opposed the prayer of the petitioner and submitted that
as per the counter-affidavit, the required rule and procedure has been
followed. The learned counsel submits that the allegation against the
petitioner was that he remained absent without leave and due
procedure has been followed .The learned counsel also submits that no
interference is called for under Article 226 of the Constitution of
India.
8. Post this case for further hearing tomorrow i.e., on 19.10.2022
at 2:15 pm.
(Anubha Rawat Choudhary, J.)
Mukul
