Madras High Court
P.Palani vs Union Of India on 9 February, 2022
1 W.A.No.614 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.02.2022
Coram
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.A.No.614 of 2021
P.Palani ...Appellant
Vs
1.Union of India,
Represented by its Secretary to the Government,
Department of Home Affairs,
New Delhi.
2.The Director General of Police,
Border Security Force,
No.10, C.G.O. Complex,
Lodhi Road, New Delhi – 110 003.
3.The Commandant,
Border Security Force,
47th Battalion,
C/o. 56th A.P.O. Sri Nagar,
Jammu and Kashmir. ...Respondents
Prayer:Writ appeal is filed under clause 15 of the Letter Patent praying to
allow the Writ Appeal and set aside the order dated 05.09.2019 in
W.P.No.5056 of 2010.
https://www.mhc.tn.gov.in/judis
2 W.A.No.614 of 2021
For Appellant : Mr.R.Thiyagarajan
For Respondents : Mr.V.Balasubramanian
JUDGMENT
S.VAIDYANATHAN, J.
&
MOHAMMED SHAFFIQ, J.
The Writ petitioner, who is the appellant has come forward with the
present appeal to interfere with the order dated 05.09.2019 in W.P.No.5056
of 2010, by which the learned Single Judge dismissed the writ petition on
the ground that the writ petitioner has committed serious act of indiscipline.
2. The learned counsel for the Appellant submitted that the writ
petitioner/Appellant joined the services on 23.01.1995 as a Constable in the
Border Security Force. He was granted leave on 28.07.1997 and thereafter
he had over stayed for 137 days i.e., from 17.08.1997 to 31.12.1997. After
joining the service, again he has gone on leave for 304 days unauthorizedly
from 08.01.1998 to 07.11.1998. According to the Appellant, two charges
have been framed against him stating that he had deserted the work for 137
days and for 304 days respectively as mentioned supra. According to the
petitioner/Appellant, he was permitted to participate in the enquiry and final
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order was passed, dismissing him from service and that he preferred an
appeal, which was also dismissed by the Appellate Authority. He further
submitted that he was foisted with a criminal case, which was tried by the
District Sessions Judge, Vellore in S.C.No.119 of 2000 for the offences
under Sections 376, 341, 342, 506(ii) of IPC. In the said criminal case, he
was taken on custody and was released on bail on 23.07.1998. He further
contended that the charges against the Appellant in the Criminal Court has
ended in acquittal and therefore respondents ought to have reinstated him in
service, as there was no enquiry conducted as contemplated under the Rules.
He further submitted that the punishment imposed by the respondents is a
capital one and that he may be provided with reinstatement and he is willing
to give up back wages.
3. The learned counsel for the respondents contended that the writ
petitioner/Appellant, having availed leave, overstayed beyond the leave
period unauthorizedly and involved in a criminal case with regard to
molesting a girl, which was tried by the Sessions Court as mentioned supra
under various provisions of IPC. He further contended that the department
has not proceeded against him on account of criminal case departmentally.
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He also contended that Border Security Force (BSF) is a disciplined force
and a person, who has joined and rendered two years of service has gone on
leave and thereafter over stayed for more than a year in two different spells
without prior permission and that the factum of over stay of leave has been
accepted by the petitioner. Hence, there is no consideration of reinstatement
and he is unfit to serve in the sensitive place like Kashmir. He went on to
add that the writ petitioner/Appellant has admitted that he has filed a writ
petition in W.P.No.10962 of 2003 before this Court and the same was
dismissed on 01.04.2004. Of course, no records have been produced either
by the Appellant or by the respondents before the learned Single Judge.
When the Appellant takes a stand submits that the writ petition stands on a
different footing, he should have produced the affidavit and the order to
state that the issue has not been concluded.
4. When this Court posed a question to the Writ Petitioner/Appellant
as to the non production of documents, he would submit that he has no
papers readily available with him, except saying that the writ petition was
filed against the order of the Disciplinary Authority. He further submitted
that he made an application for reinstatement, which was negatived by the
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respondents and he should have been granted atleast the benefit of lesser
punishment than that of the dismissal dated 31.12.2018.
5. Heard both the parties.
6. The Writ Petitioner/Appellant joined the services of BSF on
23.01.1995 and was granted leave on 28.07.1997. The Appellant had
admitted that he had overstayed for 137 days between 17.08.1997 to
31.12.1997 and thereafter, again for 304 days from 08.01.1998 to
07.11.1998. During the second spell, he has not overstayed, but he had
absented himself from 08.01.1998 pursuant to his involvement in a criminal
case. The learned Single Judge at paragraph No.13, has rightly observed
that the employee had admitted his guilt. It is no doubt true that when
charges are framed against the employee, admission either verbally or
writing cannot be taken as an admission Ifso facto but in an enquiry, if the
same is admitted, no further evidence is required and based on the
admission, he can be proceeded with. Even before this Court, the Appellant
has stated that he had extended leave with a permission, but, unauthorizedly
was absent for 304 days in the year 1998. There is no iota of explanation
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and justification for the leave except projecting that he was foisted with a
criminal case and therefore the Department is right in imposing the capital
punishment. Moreover, the department has nowhere discussed about the
charges framed by the Criminal Court. They have proceeded only with
regard to the unauthorized absence and the period of overstay. We are of the
view that the learned single Judge has rightly held that in a Disciplined
Force, a Cop is expected not to leave his Force without intimation,
especially when he is posted at Kashmir, a sensitive place and unauthorized
absence from duty is a serious misconduct in Disciplined Force and this
Court is not inclined to interfere with the order of the learned single Judge
that has confirmed the order of the Authority.
7. In the result, the writ appeal is dismissed. No costs.
(S.V.N.J.,) (M.S.Q.J.,)
09.02.2022
dpq
Speaking order/Non-speaking order
Index: Yes/No
Internet: Yes/No
https://www.mhc.tn.gov.in/judis
To
1. The Union of India,
Represented by its Secretary to the Government,
Department of Home Affairs,
New Delhi.
2.The Director General of Police,
Border Security Force,
No.10, C.G.O. Complex,
Lodhi Road, New Delhi – 110 003.
3.The Commandant,
Border Security Force,
47th Battalion,
C/o. 56th A.P.O. Sri Nagar,
Jammu and Kashmir.
https://www.mhc.tn.gov.in/judis
S.VAIDYANATHAN, J.
and
MOHAMMED SHAFFIQ, J.
dpq
W.A.No.614 of 2021
09.02.2022
https://www.mhc.tn.gov.in/judis
