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3. The case of the respondents on the other hand, projected in their reply to the writ petition, is that several opportunities were given to the petitioner to join his duties by sending him numerous communications but he never joined and as such he was dismissed after conducting Court of Inquiry and issuing a show-cause notice, to which he did not respond and file reply.
4. In order to appreciate the respective contentions of the parties, the facts in brief, may be noticed.
5. Petitioner was enrolled as a Constable in BSF on 24/12/1988. On the completion of his basic training at STC BSF Kharka Camp, Hoshiarpur, Punjab, he was posted in 19th Bn. on 25/12/1989 vide Ftr HQ BSF Jodhpur Signal No. A/4412 dated 21 Sept 1989. The petitioner regularly overstayed the leave during his past service for which he was punished twice; (i) Under Section 19(b) awarded 14 days Rigorous Imprisonment in Force Custody; and (ii) U/S 19(a) awarded 28 days Rigorous Imprisonment in Force Custody by the Commandant 19 Bn BSF. The petitioner, however, proceeded on 15 days casual leave w.e.f. 08/09/1992 to 28/09/1992 by making an application on the ground that his mother has expired. The petitioner, however, did not join back after the expiry of the leave. It is stated in the petition that on reaching home, the petitioner learnt that his mother was alive but in serious condition and admitted in hospital at Deoria. He further stated to have applied for the extension of his leave in narrating about the precarious condition of his mother vide application dated 14 September, 1992, accompanying a medical certificate through registered post. Instead of accepting the request of the petitioner for extension of leave, a warning letter dated 16/10/1992 was received, in asking the petitioner to resume the duty. Another letter is stated to have been dispatched by the petitioner in explaining the condition of his ailing mother and requested for extension of leave on 21/10/1992. The petitioner, however, again received a warning letter dated 10/12/1992 informing him about his absence and overstayal. The petitioner further stated that since the condition of his mother had not improved, he again requested for the extension of his leave and sent an application dated 21/12/1992, in explaining the details of sickness of his mother but the respondents, without considering the explanation of the petitioner, passed the impugned order dated 28/12/1992 by which he was dismissed from service and period of his absence from 29/09/1992 to 27/12/1992 treated as 'Dies-non'. Representation made to the Director General of BSF against the order of dismissal, however, stood rejected without giving him an opportunity of being heard. Again he made another representation to the Ministry of Home Affairs, Directorate General Border Security Force, Personnel Directorate Establishment Section, New Delhi, requesting for his re-instatement in explaining his miserable condition and deplorable circumstances of his family. When his representation was not decided by the Ministry of Home Affairs, a writ petition came to be filed in the Allahabad High Court, which too stood disposed of with a direction to the Secretary, Ministry of Home Affairs, Govt. of India, to dispose of the petitioner's representation and communicate the decision to the petitioner within a period of three months from the date of receipt of a certified copy of the order. Vide Order No. 13/68/94- RECTT/BSF/2125-29 dated 23/03/1995, Additional Deputy Director (Estt.) informed the petitioner about his representation having been rejected by the Competent Authority of the Ministry of Home Affairs, being devoid of merit.
6. Respondents were put on notice and have filed counter affidavit stating therein that no procedural irregularity in passing the impugned order has been committed by the respondents nor any right, statutory or constitutional, has been violated which necessitating judicial review by the Court. It was also stated that Constable- Dwarika Nath Mishra during the period of his past service in the Unit regularly overstayed the leave granted to him and the details given read as under:-
"(a) The Constable overstayed by two days when he was granted earned leave for 30 days from 14 Dec 89 to 12 Jan 90. The period of overstayal was regularized by granting leave.
(b) He again overstayed by 17 days when he was granted 10 days casual leave w.e.f. 11 June 90 to 23 June 90. The period of overstayal was regularized by granting leave.
(c) The Constable overstayed by 48 days from 6 Feb 91 to 25 Mar 91 when he was granted 27 days Earned Leave from 11 Jan 91 to 5 Feb 91. He was charged Under Section 19(b) and awarded 14 days RI in Force Custody by the Commandant 19 Bn BSF.
(d) The Constable absented himself without leave on 4 Sep 91 and reported back on 26 Nov 91 after unauthorized absence of 84 days. He was charged Under Section 19(a) and awarded 28 days RI in Force Custody by the Commandant 19 Bn BSF."