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The instant Writ Petition has been filed challenging the order dated 02.07.2009 passed by the 3rd respondent, confirming the order dated 29.01.2009 passed by the 4th respondent in dismissing the petitioner from service as Constable in Border Security Force, Government of India.

I. Factual Matrix.

2. It is the case of the petitioner that he was appointed as a Constable with the Border Security Force on 22.11.1988 and was in employment till 09.10.2004. According to him, he was sanctioned 60 days Earned Leave from 09.10.2004 to 06.12.2004 by the 4th http://www.judis.nic.in respondent and he ought to have re-joined duty on 07.12.2004 as per the sanctioned leave. But due to a family dispute, a complaint was lodged by one of the members of his family and a criminal case was registered under Sections 294(b), 323, 506(i), 306 and 109 IPC r/w Tamil Nadu Public Property (Prevention of damages and Loss ) Act 1942. It is his case that he was arrested for the alleged offence on 10.11.2004 and the same was also informed to the 4th respondent by the police. Thereafter, he was released on bail on 18.11.2004. On 29.11.2004, the 4th respondent suspended the petitioner from service. The petitioner further states that the trial in the criminal case commenced on 10.06.2005 before the learned Judicial Magistrate No.I, Nagercoil in C.C.No.132 of 2005. Further, the petitioner states that the suspension order passed by the 4th respondent was reviewed on 23.08.2005 and subsistence allowance was granted to the petitioner with effect from 29.11.2004. Thereafter, the 4th respondent sent a letter to the learned Judicial Magistrate No.I, Nagercoil on 01.02.2006 requesting the Court to complete the case expeditiously. Thereafter, by judgment dated 07.02.2008 passed in C.C.No.132 of 2005, the learned Judicial Magistrate No.I, Nagercoil acquitted the petitioner from all the criminal charges. According to the petitioner, he made a representation dated 12.02.2008 to the 4th respondent requesting to revoke the suspension order. Thereafter, according to the petitioner on http://www.judis.nic.in 26.12.2008, the 4th respondent issued a show cause notice under Section 11(2) r/w. Rule 22 and 177 of the Border Security Force Act calling upon the petitioner to show cause as to why he should not be dismissed from service for abstaining from duty without leave of absence from 07.12.2004 onwards. According to the petitioner, he received the show cause notice only on 07.01.2009 and immediately he sent a detailed reply dated 19.01.2009 to the 4 th respondent, which was also acknowledged by the 4th respondent on 05.02.2009. It is the case of the petitioner that without holding any proper enquiry and without furnishing a copy of the enquiry report and without affording sufficient opportunity to the petitioner to cross examine the witness, the 4th respondent by its order dated 29.01.2009 dismissed the petitioner from service with effect from 29.01.2009, stating that he has failed to file a reply to the show cause notice dated 26.12.2008. Aggrieved by the order of the 4th respondent dated 29.01.2009, the petitioner preferred an appeal before the 3rd respondent on 21.04.2009, which also came to be dismissed on 02.07.2009 without considering the objections raised by the petitioner. Aggrieved by the dismissal order of the 3rd respondent dated 02.07.2009 confirming the order of the 4th respondent dated 29.01.2009, the instant Writ Petition has been filed.

II. Submissions of the learned counsels.

4.Heard Mr.A.S.Mujibur Rahman, learned counsel for the petitioner and Mr.K.Ashok Kumar, learned Central Government Standing Counsel for the respondents.

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5.The learned counsel for the petitioner drew the attention of this Court to Rule 173(8) of the Border Security Force Rules 1969, and submitted that the Courts of inquiry under the Border Security Act will have to afford an opportunity to the Border Security Force personal, who have been charged for misconduct to know about the said charges levelled against him and he should also be allowed to cross examine any witnesses, who have given evidence against him and also allowed to make statements and call witnesses in his defence. In the instant case, according to the learned counsel for the petitioner, admittedly, the court of inquiry has not afforded an opportunity to the petitioner to know about the charges levelled against him and he was also not allowed to cross examine any witnesses, who have given evidence against him and was also not allowed to make statements and call witnesses in his defence.

12.As seen from Rule 173(8) of the Border Security Force Rules, it is clear that the Courts of inquiry under the Border Security Force Rules constituted under the Border Security Force Act will have to afford the accused an opportunity to know all that has been stated against him and the accused should also be allowed to cross examine any witnesses, who have given evidence against him and make a statement and call witnesses in his defence. Even though proviso to Rules 173(8) says that Rule 173(8) shall not apply when such inquiry is ordered to enquire into a case of absence from duty without due authority, in the instant case, the petitioner has been granted time to report for duty upto 25.04.2008 by letter dated 03.04.2008. http://www.judis.nic.in

3.The Inspector General, Border Security Force, Head Quarters AM Frontier, Shillong, Meghalaya.

4.The Commandant, 21 Bn, Border Security Force, (Presently at Karumpathamaptti -Post, Kittampalayam – via, Coimbatore District) Praharinagar (upper Damalgiri), Tura, Meghalaya.