Abhimanyu Singh vs Union of India and Others

Gita Mittal, J.—The respondents are present on advance notice and have produced the relevant record. By way of the present writ petition, the petitioner has sought setting aside of the order dated 28th October, 1995, whereby, the petitioner was administratively dismissed from services on the ground that he was absent without leave w.e.f. 11th May, 1995 till date of passing of such order.

This order was passed after issuance of notice to show cause to the petitioner. The petitioner rests on the sole ground that while posted with 11th Battalion of BSF since 8th May, 1995 at the Dhol Chera, Assam, he received a letter from his home with regard to sickness of his wife and children. It is submitted that his leave application through proper channel was not granted. The petitioner was distressed upon the news of illness of his wife and children and he could not bear the ensuing anxiety. Being stressed and in a fit of emotions, the petitioner left his Unit on 11th May, 1995 for his home in the State of Bihar. As a result of the condition of his wife and children and having just recovered from injury in a grenade attack, while on duty in Jammu and Kashmir, the petitioner went into deep depression.

It is also submitted that the petitioner remained hospitalized for the treatment of such depression. In support of the writ petition, the petitioner placed reliance on copies of two letters claimed to have been written by his wife dated 10th August, 1998, and the other or undated letter to the Commanding of the 11th Battalion of BSF.

We may note that the petitioner has filed typed copies of these two communications which were purported to have been sent years after the passing of the impugned order dated 28th October, 1995. These letters nowhere contain any reference to the sickness of the petitioners'' family members i.e. his wife and children and make no reference of the fact that their sickness necessitated the petitioner to leave urgently without having sanctioned leave from his unit.

The letters are not supported by any proof from dispatch by the author of the letter or its receipts by the respondents. The respondents before us dispute the receipt of these letters. Be that as it may, these letters are claimed to have been sent long after the passing of the impugned order dated 28th October, 1995 whereby the petitioner was removed from services.

The record placed before us by the respondents reflects that after the petitioner disappeared on 11th May, 1995 from the Unit, the respondents initiated proceedings for his apprehension. We are informed that on 11th May, 1995, apprehension for the petitioner was sent to the Superintendent of Police, District Vaishali, Bihar having jurisdiction for the petitioner''s home town.

This was not a fruitful exercise inasmuch as, the petitioner did not return to the Unit. On expiry of 30 days of unauthorized absence of the petitioner, a court of enquiry was held by the respondents to enquire into the circumstances under which, he was absenting w.e.f. 11th May, 1995 under the provisions of section 62 of BSF Act.

The respondents, thereafter issued a notice to show cause dated 25th July, 1995 informing the petitioner about the tentative proposal to terminate his services by way of dismissal on account of long period of absence without sanctioned leave calling upon the petitioner to show cause against the same.

The petitioner was given opportunity to make his representation and place his defence before the Commandant of the 11th Battalion, BSF on or before 24th August, 1995 failing which, it was to be presumed that the petitioner had no defence to put forth.

The petitioner failed to respond to this notice. As a result, the respondent passed an order dated 28th October, 1995 being satisfied that the petitioner''s absence without leave was without any reasonable cause. The petitioner was dismissed form service w.e.f. of 28th October, 1995. The respondent also directed that the period of petitioner''s absence w.e.f. 11th May, 1995 to 28th October, 1995 be treated as dies non.

The above narration manifests that the impugned order was passed after due compliance with the requirements of the statute as well as principles of natural justice and cannot be subject to a challenge for any violation thereof.

We have been informed that the petitioner had on prior six occasions also either absented himself or proceeded on leave without getting them sanctioned and orders for regularising such leave were passed in this regard. Details of the absence from duty have been placed before us. Inasmuch as impugned action was not premised on these instances of the petitioner''s absence without leave, this aspect of the matter does not require detain us any further.

We may note that in the writ petition, the petitioner has claimed that his wife has addressed the letter dated 10th August, 1998 to the Commandant of 11th Battalion with regard to the petitioner''s deteriorating state of health. As per the copy placed on record of the letter dated 10th August, 1998 written by Smt. Renu Devi, wife of the petitioner, it has been mentioned therein that due to deterioration of his mental condition, the petitioner came out without sanction of any leave. She stated that she had not received any reply from the unit and requested the authorities not to disturb the livelihood of the family. She also informed that she was getting his treatment done and after some improvement she would send the petitioner to the unit.

The second representation purportedly sent by petitioner''s wife addressed to the Director General of the BSF has also been placed on record. The petitioner''s wife has admitted the petitioner''s fault and pardon thereof has been sought.

The writ petition as well as the representations to the respondents do not explain any sufficient grounds which would enable the authorities to consider the aspect of the petitioner''s sickness. In any case, the long period of absence unauthorisedly from a disciplined force as the Border Security Force, in the facts and circumstances as laid down does not permit condonation of the petitioner''s unauthorized absence from duty.

We may note that the writ petition has been filed after more than 18 years of the passing of the impugned order dated 28th October, 1995 which by itself would merit rejection of the petition on account of unexplained delay and laches. Be that as it may, we have otherwise considered the petitioner''s case on the merits of the contentions raised in the petition.

We find no merit in the writ petition which is hereby dismissed. No order as to costs.