Calcutta High Court (Appellete Side)
Man Singh vs Union Of India & Ors on 24 October, 2025
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ananya Bandyopadhyay
W.P.A. 34536 of 2013
Man Singh
-Vs-
Union of India & Ors.
For the Petitioner : Mr. Arun Naskar
Mr. Girish Chandra Gupta
For the Respondents : Ms. Debapriya Gupta
Heard on : 19.09.2024, 12.12.2024, 20.12.2024,
12.08.2025
Judgment on : 24.10.2025
Ananya Bandyopadhyay, J.:-
1. The petitioner functioned as a Constable in Border Security Force being inducted on 18.12.1993. On completion of his basic recruitment training at STC, BSF, Bangalore, the petitioner was posted at 18 th Bn. BSF on 14.01.1995. The petitioner continued to discharge his duties with sincerity and dedication. During his service tenure, the petitioner had been posted at various places across the country with his last posting at Jammu.
2. The petitioner sought for leave owing to his brother's marriage. Seventeen days' casual leave with effect from 17.06.2002 to 03.07.2002 inclusive of the holidays was granted to the petitioner. Intermittently, the petitioner fell sick 2 2019:CHC-AS:1654 and had been advised complete bed rest for a week by the doctor and the same was informed to the respondent authorities by a letter dated 01.07.2002 praying for an extension of his earlier leave for a period of one week.
3. The petitioner did not recover after the prolonged period of 7 days as aforesaid on account of his degrading health condition opting him to consult the Emergency Medical Officer, District Hospital, Etawah, who prescribed a medical certificate on 28.08.2002 declaring him fit to resume his duties after a month's complete bed rest suffering from viral Hepatitis etc.
4. The petitioner had applied for further two months' leave through a communication dated 24.07.2002 to the respondent authorities informing his physical illness. Meanwhile, the physical condition of the mother of the petitioner aggravated and was advised to undergo operation of uterus which was conducted on 30th of August, 2002. The mother of the petitioner was discharged from the nursing home on 06.09.2002.
5. The petitioner had received a letter on 09.07.2002 from the respondent no.5 much late on 26.08.2002 directing him to report at the Headquarters failing which disciplinary proceedings would be instituted against him. The petitioner, on discharge of his mother from the nursing home, reached the Headquarters on 07.09.2002 but was prevented to report to his duty and the joining report was refused to be accepted by the respondent no.5.
6. The petitioner learnt of a Departmental Enquiry to have been initiated against him for his unauthorized absence since 04.07.2002. The respondent no.5 did not accept the documents relating to the medical certificates of the 3 2019:CHC-AS:1654 petitioner as well as that of his mother and the application seeking medical leave for the period of his absence.
7. Subsequently, the petitioner returned home after filing an application stating acute weakness as a consequence of prolonged illness suffered by him. On 8th November, 2002, the petitioner received a registered letter issued by the respondent no.5 intimating his dismissal from service vide order dated 30.10.2002 which, according to the petitioner, was illegal, arbitrary and contrary to the provisions of Articles 14, 16 and 21 of the Constitution of India since the petitioner did not receive any show-cause notice dated 30.09.2002 and was denied of the opportunity of hearing communicated to his home address.
8. The petitioner filed a writ petition being no.17337 of 2003 against his order of dismissal dated 30.10.2002 before the Hon'ble High Court at Allahabad which was dismissed by an order dated 23.11.2010.
9. The petitioner, thereafter, filed an appeal before the respondent no.4 on 04.12.2010 which was rejected vide an order dated 31.12.2010 passed by the respondent no.3. The review application was preferred before the respondent no.3 against the order dated 31.12.2010 on 14.04.2011 which was dismissed vide order dated 09.05.2011 passed by respondent no.3.
10. The petitioner, being aggrieved by the order dated 31.12.2010 passed by the Appellate Authority as well as the order dated 09.05.2011 passed by the respondent no.3 as aforesaid, filed a writ petition being no.44394 of 2011 before the Hon'ble High Court at Allahabad which was dismissed on 4 2019:CHC-AS:1654 10.08.2011 with an observation "the writ petition is dismissed as not maintainable on the ground of territorial jurisdiction."
11. The petitioner, thereafter, approached respondent no.2 the Office of the Director General, Border Security Force, CGO Complex, Lodhi Road, New Delhi - 110003 for his reinstatement which was declined by the aforesaid authority vide a communication dated 07th February, 2013 received by the petitioner in the month of March, 2013. The petitioner filed the instant writ petition, inter alia, on the following grounds:-
"a) For issuance of a writ order or direction in the nature of mandamus commanding the respondents and each one of them, their men, servants and agents to forbear from giving any effect to the impugned order of dismissal from the service vide order dated 30.10.2002 passed by the respondent No.4 along with order dated 31.12.2010 passed in appeal and the order in review dated 09.05.2011 passed by the Respondent No.5, and order dated 07.02.2013 passed by Respondent No.2 to direct the respondents to reinstate the petitioner in service with all service benefits after quashing the impugned order dated 30.10.2002;
b) Issue a Writ, order or direction in the nature of mandamus upon the respondents specially the respondent No.5 to reinstate the petitioner in service with effect from 04.07.2002 with all its consequential benefit; ......"
12. The Learned Advocate representing the petitioner submitted the order of dismissal was passed without serving upon him and show-cause notice without supplying the inquiry report and without affording any effective opportunity of defence. The respondents, while asserting in their opposition that such notice dated 30.09.2002 was issued by registered post, failed to 5 2019:CHC-AS:1654 produce the acknowledgement due card, postal tracking record or any cogent proof of delivery. The inconsistent pleadings of the respondents wherein one hand they asserted the petitioner was directed to appear on or before 27.10.2002 and on the other hand, claimed he was to appear within 30 days from the date of receipt of notice. Such inconsistency coupled with absence of documentary proof of service vitiated the alleged compliance of Rule 22(2) of the BSF Rules and rendered the disciplinary proceeding a nullity in law.
13. The respondents' omission to produce any record of the police report or communication from the Superintendent of Police, Etawah, in connection with the notice dated 25.09.2002, further established the mandatory procedural safeguards under the Act were disregarded. The Commandant's act of dismissing the petitioner from service was beyond his jurisdictional competence and thus ultra vires the statute.
14. Under Section 48 of the Border Security Force Act, 1968, the power to impose major punishment, such as dismissal from service, vests exclusively in a Security Force Court. The Commandant, at best, is empowered under Sections 52 and 53 to impose minor punishments with the prior consent of the Central Government. In the instant case, the Commandant, acting unilaterally and in contravention of the statutory scheme, imposed the extreme penalty of dismissal, thereby rendering the order void and unsustainable in the eyes of law.
15. Furthermore, the alleged departmental inquiry purportedly held under Section 62 of the Act was procedurally defective. Rule 43 of the BSF Rules, 1969 mandates that allegations must be reduced in writing in the form 6 2019:CHC-AS:1654 prescribed in Appendix IV, applicable to proceedings involving minor punishments. The respondents, however, failed to adhere to such requirement and imposed a major penalty without following due process.
16. The respondents' conduct discloses clear elements of mala fides and a colourable exercise of power. The sequence of events, coupled with the absence of contemporaneous documents and the shifting stand in their affidavits, demonstrates that the Disciplinary Authority sought to justify an ex parte dismissal by concocted procedural formalities.
17. The issuance of misleading and inconsistent statements under oath constitutes a serious infraction, amounting to a deliberate attempt to suppress the true facts and mislead the Court. Such conduct by a public authority cannot be countenanced within the constitutional scheme of fairness and accountability. The petitioner's absence was neither wilful nor deliberate, but occasioned by serious illness and the critical health condition of his mother, both circumstances beyond his control. The respondents have not controverted this fact by any credible medical or official record.
18. The punishment of dismissal, being the severest of all, is disproportionate to the alleged misconduct, particularly in the absence of any prior grave delinquency. The petitioner's entire service tenure stands obliterated, depriving him of pensionary and terminal benefits, thereby plunging him and his family into financial destitution. Such arbitrary deprivation violates the right to livelihood guaranteed under Article 21 of the Constitution, and offends the equality clause under Articles 14 and 16.
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19. The impugned orders are constitutionally untenable for having been passed in violation of:
a. Article 14 -- for arbitrariness and non-application of mind; b. Article 16 -- for denial of equal protection in service jurisprudence; c. Article 21 -- for deprivation of livelihood and dignity without due process.
20. The statutory mandate of fair hearing, as embodied in the BSF Act and Rules, and reaffirmed by the constitutional doctrine of natural justice, was not observed in spirit or substance. In essence, the petitioner's dismissal stands tainted by procedural impropriety, violation of statutory mandates, and constitutional infirmity. The respondents, in derogation of their legal duty, deprived the petitioner of the right to a fair hearing and thereby inflicted a punishment grossly disproportionate to the alleged misconduct.
21. The Learned Advocate representing the respondents submitted the service dossier of the petitioner, as per record, reveals a consistent pattern of indiscipline in the form of habitual overstaying of sanctioned leave without intimation to his superiors. Notwithstanding repeated opportunities for correction and regularisation of his unauthorised absences, he failed to conform to the discipline inherent in a uniformed service.
22. It was borne from the records that the petitioner, after availing 15 days of casual leave from 17.06.2002 to 03.07.2002, abstained from resuming duties on 04.07.2002, as was mandatorily required. His unit was then deployed on Internal Security duty at THQ Soura, Srinagar and RHQ Patgaon (Assam). Multiple communications--vide letters dated 09.07.2002 8 2019:CHC-AS:1654 and 30.07.2002 - were dispatched to the petitioner at his home address, directing him to resume duty forthwith. However, the petitioner remained recalcitrant and incommunicado.
23. Consequently, a Court of Inquiry under Section 62 of the BSF Act was convened to ascertain the circumstances of his unauthorised absence. Upon completion thereof, an apprehension roll was duly issued to the Superintendent of Police, Etawah (U.P.), vide communication dated 25.09.2002, in furtherance of statutory protocol. In compliance with Rule 22(2) of the BSF Rules, a Show Cause Notice dated 30.09.2002 was also sent through Registered Post with A/D, directing the petitioner to submit his explanation within thirty days from the receipt of the notice. The petitioner, however, neither responded nor availed of the said opportunity.
24. Given the protracted and unremedied absence of the petitioner, coupled with the impracticability of convening a Security Force Court in the prevailing circumstances, the Disciplinary Authority invoked Section 11(2) of the BSF Act read with Rule 177 to impose the penalty of dismissal from service, holding that his retention was undesirable in a disciplined paramilitary organization.
25. The records further indicate that during his eight years of service, the petitioner remained unauthorisedly absent on five separate occasions, all of which were condoned through the grant of extraordinary or earned leave, in the hope of reformation. He was also subjected to disciplinary action and punished with seven days of extra guard duties for violating Section 16(d) of the BSF Act, for leaving his post without permission. His service trajectory 9 2019:CHC-AS:1654 thus reflects repeated defiance of command and chronic disregard for the discipline essential to the ethos of the Border Security Force.
26. Upon his dismissal, the petitioner approached the Hon'ble High Court at Allahabad by filing Writ Petition No. 17337 of 2003, which was disposed of by order dated 23.11.2010, directing him to exhaust the statutory appellate remedy. Pursuant thereto, his appeal dated 04.12.2010 was examined by the Inspector General, BSF, Bengal Frontier, under Rule 28A of the BSF Rules, 1969, and rejected on 31.12.2010 for want of merit. A subsequent representation dated 12.12.2011, addressed to the Director General, BSF, was also duly considered and declined on 02.01.2012.
27. Another writ petition, W.P. No. 44394 of 2011, was filed before the High Court of Allahabad, which came to be dismissed by order dated 10.08.2011, holding it non-maintainable on the ground of territorial jurisdiction. It surfaced from departmental records that the petitioner, while engaging in parallel legal proceedings, sought to exert extraneous political influence to secure reinstatement, which was duly examined at the appropriate level but found devoid of substance.
28. The respondents submitted the entire substratum of the petitioner's case concerned the untenable plea that no notice of the disciplinary proceeding was served upon him. However, the record speaks otherwise. The petitioner had acknowledged receipt of the communication dated 09.07.2002, yet wilfully abstained from tendering any explanation. Such deliberate silence and indifference disentitle him from invoking principles of natural justice at a belated stage.
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29. The respondents further rely upon the authoritative pronouncement of the Hon'ble Supreme Court reported in (2008) 8 SCC 469, wherein it was categorically held that unauthorised absence or overstay of leave constitutes an act of indiscipline, and a member of a disciplined force cannot claim exoneration on grounds of personal inconvenience or private difficulties.
30. In fine, the respondents contend that the disciplinary proceedings culminating in the petitioner's dismissal were conducted in scrupulous adherence to the statutory framework of the BSF Act and Rules, with due compliance to procedural safeguards and affording of opportunities. The petitioner, by his own repeated derelictions, stands disentitled to equitable relief under Article 226 of the Constitution.
31. The instant writ petition emanated from a disciplinary order of dismissal dated 30th October, 2002 issued by the Commandant, 18 th Bn. Border Security Force in exercise of powers conferred under Section 11(2) of the Border Security Force Act, 1968 read with Rules 22 and 177 of the Border Security Force Rules, 1969.
32. The petitioner Ex-Constable No.93106893 Man Singh invokes the writ jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India seeking redress against the arbitrary and unlawful order of dismissal as aforesaid which was subsequently affirmed by the Appellate Authority on 31.12.2010 any by the Reviewing Authority on 09.05.2011. According to the petitioner, the impugned orders were vitiated by manifest breach of the principles of natural justice, non-compliance of the mandatory provisions of the Border Security Force, 1968 (hereinafter referred to as "the Act") and the 11 2019:CHC-AS:1654 Border Security Force Rules, 1969 (hereinafter referred to as "the Rules") and had been arbitrary, perverse and void ab initio.
33. The following provisions including the respective sections and rules of the Act and the Rules as aforesaid are enumerated below.
34. Section 11(2) of the Border Security Force, 1968 inter alia, stated as follows:-
"11. Dismissal, removal of reduction by the Director-General and by other officers.--(2) An officer not below the rank of Deputy Inspector-General or any prescribed officer may dismiss or remove from the service any person under his command other than an officer or a subordinate officer of such rank or ranks is may be prescribed."
35. Section 48 of the Border Security Force, 1968 inter alia, stated as follows:-
"48. Punishments awardable by Security Force Courts.--(1) Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by Security Force Courts according to the scale following, that is to say,--
(a) death;
(b) imprisonment which may be for the term of life or any other lesser term but excluding imprisonment for a term not exceeding three months in Force custody;
(c) dismissal from the service;
(d) imprisonment for a term not exceeding three months in Force custody;
(e) reduction to the ranks or to a lower rank or grade or place in the list of their rank in the case of an under-officer; 12
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(f) forfeiture of seniority of rank and forfeiture of all or any part of the service for the purpose of promotion;
(g) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose;
(h) fine, in respect of civil offences;
i) severe reprimand or reprimand except in the case of persons below the rank of an under-officer;
(j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active duty;
(k) forfeiture in the case of person sentenced to dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such dismissal;
(l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence for which he is convicted is made good. (2) Each of the punishments specified in sub-section (1) shall be deemed to be inferior in degree to every punishment preceding it in the above scale."
36. Section 52 of the Border Security Force, 1968 inter alia, stated as follows:-
"52. Punishments otherwise than by Security Force Courts.-- Punishments may also be inflicted in respect of offences committed by persons subject to this Act without the intervention of a Security Force Court in the manner stated in sections 53 and 55."
37. Section 53 of the Border Security Force, 1968 inter alia, stated as follows:- 13
2019:CHC-AS:1654 "53. Minor punishments.--Subject to the provisions of section 54, a Commandant or such other officer as is, with the consent of Central Government, specified by the Director-General may, in the 17 prescribed manner, proceed against a person subject to this Act, otherwise than as an officer or a sub-ordinate officer, who is charged with an offence under this Act and award such person, to the extent prescribed, one or more of the following punishments, that is to say,--
(a) imprisonment in Force custody up to twenty-eight days;
(b) detention up-to twenty-eight days;
(c) confinement to the lines up to twenty-eight days;
(d) extra guards or duties;
(e) deprivation of any special position or special emoluments or any acting rank or reduction to a lower grade of pay;
(f) forfeiture of good service and good conduct pay;
(g) severe reprimand or reprimand;
(h) fine up to fourteen days pay in any one month;
(i) deductions from his pay of any sum required to make good such compensation for any expense, loss, damage or destruction caused by him to the Central Government, or to any building or property as may be awarded by his Commandant."
38. Section 55 of the Border Security Force, 1968 inter alia, stated as follows:-
"55. Punishment of persons of and below the rank of subordinate officers by Deputy Inspectors-General and others.--
(1) An officer not below the rank of the Deputy Inspector-General or 14 2019:CHC-AS:1654 such other officer as is, with the consent of the Central Government, specified by the Director-General may, in the prescribed manner, proceed against a person of or below the rank of a subordinate officer who is charged with an offence under this Act and award one or more of the following punishments, that is to say,--
(a) forfeiture of seniority, or in the case of any of them whose promotion depends upon the length of service forfeiture of service for the purpose of promotion for a period not exceeding twelve months, but subject to the right of the accused previous to the award to elect to be tried by a Security Force Court;
(b) severe reprimand or reprimand;
(c) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good. (2) In every case in which punishment has been awarded under sub-
section (1), certified true copies of the proceedings shall be forwarded, in the prescribed manner, by the officer awarding the punishment to the prescribed superior authority who may, if the punishment awarded appears to him to be illegal, unjust or excessive, cancel, vary or remit the punishment and make such other direction as may be appropriate in the circumstances of the case."
39. Section 62 of the Border Security Force, 1968 inter alia, stated as follows:-
"62. Inquiry into absence without leave.--(1) When any person subject to this Act has been absent from duty without due authority for a period of thirty days, a court of inquiry shall, as soon as practicable, 15 2019:CHC-AS:1654 be appointed by such authority and in such manner as may be prescribed; and such court shall, on oath or 19 affirmation administered in the prescribed manner, inquire respecting the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or necessaries; and if satisfied of the fact of such absence without due authority or other sufficient cause, the court shall declare such absence and the period thereof and the said deficiency, if any, and the Commandant of the unit to which the person belongs shall make a record thereof in the prescribed manner. (2) If the person declared absent does not afterwards surrender or is not apprehended, he shall for the purposes of this Act, be deemed to be a deserter."
40. Rule 22(2) of the Border Security Force Rule, 1969 inter alia, stated as follows:-
"22. Dismissal or removal of persons other than officers on account of misconduct - (2) When after considering the reports on the misconduct of the person concerned, the competent authority is satisfied that the trial of such a person is inexpedient or impracticable, but, is of the opinion that his further retention in the service is undesirable, it shall so inform him together with all reports adverse to him and he shall be called upon to submit, in writing, his explanation and defence:16
2019:CHC-AS:1654 Provided that the competent authority may withhold from disclosure any such report or portion thereof, if, in his opinion its disclosure is not in the public interest."
41. Rule 28 of the Border Security Force Rule, 1969 inter alia, stated as follows:
"28. Power to be exercised by a superior officer or authority.- Any power conferred by the provisions of this Chapter on an officer may also be exercised by an officer or authority superior in command to the first mentioned officer.
[28A. Petition. - Any person subject to the Act, who considers himself aggrieved by any order of termination of his service passed under this Chapter may; in the case of an officer, present a petition to the Central Government, in the case of an Assistant Sub Inspector or a subordinate officer, present a petition to the Director General and in the case of an enrolled person, present a petition to the Inspector General, who may pass such orders on the petition as deemed fit].
Provided that the limitation period for filing such petition shall be three months from the date of order of termination or from the date of its receipt, whichever is later."
42. Rule 43 of the Border Security Force Rule, 1969 inter alia, stated as follows:
"43. Offence report.- Where it is alleged that a person subject to the Act 1 [other than an officer or a Subordinate Officer] has committed an offence punishable there under the allegation shall be reduced to writing in the form set out in Appendix IV."
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43. Rule 177 of the Border Security Force Rule, 1969 inter alia, stated as follows:
"177. Prescribed Officer under Section 11 (2) - The Commandant may, under sub-section (2) of section 11, dismiss or remove from the service any person under his command other than an officer or a subordinate officer."
44. The petitioner had earlier, on various occasions, overstayed leave which had been condoned by the respondent authorities on several occasions regularizing his unauthorized absence through grant of extraordinary leave. Instances being as follows:-
i. "08 days OSL (07.05.95 - 14.05.95) - regularized as EOL ii. 22 days OSL (27.06.97 - 18.08.97) - regularized as EL iii. 25 days OSL (25.07.98 - 18.08.98) - regularized as EL iv. 05 days OSL (02.05.02 - 06.05.02) - regularized as EL v. 30 days EL (30.05.96 - 28.06.96) vi. 05 days EL (11.06.2000 - 15.06.2000) and 15 days HPL (16.06.2000 - 30.06.2000)."
45. The petitioner was further punished by award of "7 days extra guard duty"
under Section 16(d) of the BSF Act for leaving his post without permission.
46. The petitioner initially challenged the dismissal before the Hon'ble Allahabad High Court by way of Writ Petition being No.17337 of 2003 which was dismissed on 23.11.2010 with liberty to file a statutory appeal. In compliance thereof, he submitted an appeal dated 04.12.2010 which, upon due consideration under Rule 28(A) of the BSF Rules, 1969, was rejected by 18 2019:CHC-AS:1654 the Inspector General, BSF Bengal Frontier vide order dated 31.12.2010 for want of merit. Thereafter, the petitioner preferred a representation dated 12.12.2011 to the Director General, BSF, which was duly considered and rejected vide Letter No.13/56/2011-Estt/BSF/36145-47 dated 02.01.2012.
47. Aggrieved by the appellate and review orders, the petitioner again filed Writ Petition being No.44394 of 2011 before the Hon'ble High Court at Allahabad which was dismissed on 10.08.2011 as "not maintainable on the ground of territorial jurisdiction."
48. The petitioner's plea to have not been served with the show-cause notice or other communications had been unjustifiable since a communication dated 30.09.2002 was issued by the Office of the Commandant, 18 th Bn. BSF, seeking his explanation as to why his service would not be terminated through dismissal. The reply to the aforesaid show-cause notice was to be furnished within 27.10.2002.
49. It was further stated "In case no reply is received by that date, it shall be presumed that you have no defence to put forward against the proposed action and an ex party decision shall be taken in this regard." The communication dated 30.09.2002 was forwarded to the Superintendent of Police, District - Etawah, Uttar Pradesh "with the request to enquire about whereabout of above named personnel and to direct him to report this unit immediately on or before 27.10.2002 by sending a rep. of local police station pse."
50. The Assistant Commandant on behalf of the Commandant, 18 th Bn., BSF, on 25.09.2002 requested the Superintendent of Police, District- Etawah, Uttar 19 2019:CHC-AS:1654 Pradesh to hand over the petitioner to the aforesaid Unit at the earliest on an apprehension under Section 61(1) of the BSF Act, 1968 for overstaying from leave since 04.07.2002.
51. The Learned Advocate representing the respondents submitted all statutory notices were duly issued and dispatched to the recorded residential address of the petitioner. The petitioner himself admitted to have received the communication dated 09.07.2002, however, did not respond to the same.
52. According to Section 62 of the Act, if a person had been on unauthorized leave for a period of 30 days, a court of enquiry shall, on oath or affirmation administered in the prescribed manner, enquire regarding the absence of the person and being satisfied of the fact of such absence without due authority or other sufficient cause, the court shall declare such absence and the period thereof and the Commandant of the Unit, to which the person belonged, shall make a record thereof in the prescribed manner. If the person declared absent does not afterwards surrender or is not apprehended, he shall for the purposes of the fact be deemed to be declared as a deserter.
53. Rule 22(2) of the aforesaid Rules stipulated the competent authority on satisfaction considering the reports of misconduct of a person concerned that the trial of such person was inexpedient or impracticable can opine further retention of that person in the service to be undesirable and shall further inform the person along with the reports adverse to him to submit in writing his explanation and defence.
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54. The petitioner in the instant case was issued a show-cause notice dated 30.09.2002 for his reply failing which an ex parte decision was proposed to be conducted to terminate his service by way of dismissal.
55. The submission of the Learned Advocate representing the respondent- authority as well as the documents marked as annexures did not state the action taken by the Superintendent of Police, District- Etawah in connenction with tracing the whereabouts of the petitioner or to have served the notice dated 30.09.2002 upon the petitioner the constituent of the court of enquiry on oath and affirmation had not been mentioned through relevant documents.
56. The petitioner was to be handed over to the Unit by the Superintendent of Police as aforesaid vide a communication dated 25.09.2002 which had not been complied with. The respondent authority failed to justify the issuance of notice to have been received by the petitioner dated 30.09.2002 though the petitioner admitted to have received the notice dated 09.07.2002. The inaction on the part of the Superintendent of Police, District- Etawah, Uttar Pradesh, if at all which had not been substantiated through relevant documents and the conspicuous and convincing report by the court of enquiry, it could not have been sustainable that the trial of the petitioner by a Security Force Court could have been impracticable due to his absence and had been inexpedient which necessitated termination of service of the petitioner through dismissal since his service had been undesirable.
57. The respondent authority's claim to have granted ample opportunities to the petitioner to join duty and to defend himself which the petitioner failed to 21 2019:CHC-AS:1654 comply. The main contention of the respondent authorities apart from his present overstay had been his earlier conduct of similar nature terming him to be a habitual offender of overstaying from sanctioned leave without intimation to the concerned authority as aforesaid on several occasions during his short span of 8 years of service which, however, had been considerable and leniently regularized by granting Earned Leave.
58. The respondent authorities did fail to exercise and discharge its function under Section 62 of the BSF Act, 1968 read with Section 11(2) as well as Rule 177 of the BSF Act. Indubitably the petitioner, on several occasions, overstayed the leave, however, the action taken by the respondent authorities in dismissing the petitioner from his service without complying the relevant provisions as enumerated in Section 62 of the Act read with Section 11(2) of the BSF Act as well as Rule 177, had been too harsh and stringent.
59. The petitioner had not been declared as a deserter prior to the proceedings being initiated by the Court of Enquiry. The action taken by the Superintendent of Police as aforesaid was not brought on record to evince the apprehension as claimed by the respondent authority which propelled the respondent authorities to dismiss the service of the petitioner without the trial conducted by the Security Force Court.
60. The petitioner should have been brought under the purview of trial to have been conducted by the Security Force Court providing him opportunity to defend his case. The petitioner did not reply to the initial show-cause notice, however, the same could not have precluded the respondent authorities from 22 2019:CHC-AS:1654 exhausting its liabilities of apprehending the petitioner and, thereafter, declaring him to be a deserter on account of unauthorized leave being untraceable.
61. In view of the above discussions, the order dated 31.12.2010 passed by the Appellate Authority as well as the order dated 09.05.2011 by the Reviewing Authority are set aside.
62. The Disciplinary Authority is to consider the representation of the petitioner afresh in accordance with the provisions of law providing him an opportunity of hearing and, thereafter, arrive at a just conclusion within a period of 3 months from the date of passing of this order.
63. In view of the above discussions, the instant writ petition being WPA 34536 of 2013 is disposed of.
64. There is no order as to costs.
65. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.
(Ananya Bandyopadhyay, J.)