Naik Jaivir vs Union of India (UOI) and Others

Gita Mittal, J.—The petitioner assails an order dated 21st June, 2003 whereby he has been dismissed from service.

The petitioner was enrolled with the Border Security Force in the year 1984. It appears that the petitioner was implicated in a firing incident in Mochighat which occurred on 19th September, 1987 when he was posted on the strength of 50th Battalion of the Border Security Force as a Constable. For the purposes of disciplinary proceedings, the petitioner was attached with the 11th Battalion of the Border Security Force in connection with the criminal case registered against the Border Security Force personnel in the court of Additional Cachhar, Silchar. It has been contended that in order to avoid the consequences of implication in the criminal case, on 23rd June, 1996, the petitioner deserted from the location of the 11th Battalion of the Border Security Force.

It is an admitted position that the respondents addressed communications dated 3rd July, 1996; 7th December, 1996; 16th January, 1997 and 17th July, 1997 calling upon the petitioner to resume duties. In fact, by the last communication, the petitioner was even informed that a leave request could be considered if he resume duties.

The position which emanates on the available record is that the petitioner did not even care to acknowledge receipt of these communications, leave aside resuming his duties.

A notice to show cause dated 5th May, 2003 was issued in exercise of powers vested under Sub-section 2 of Section 11 of the BSF Act read with Rule 117 of the BSF Rules and in terms of Rule 22(2) of the BSF Rules, calling upon the petitioner as to why in the given facts, he should not be dismissed from service. This notice also did not move the petitioner at all. The orders placed on record would show that the petitioner failed to show cause any answer to this notice.

It is noteworthy that this notice was premised upon and proceeded by proceedings of a court of enquiry held in accordance with the provisions of Section 62 of the BSF Act to investigate into the petitioner''s illegal absence which had found and declared that the petitioner was illegally absenting without leave with effect from 23rd June, 1996.

In this background, the respondents were left with no option but to proceed in the matter. An order dated 21st June, 2003 was passed by the Commandant of the 152nd Battalion, BSF directing that the petitioner be dismissed from service with effect from the same date. The period of his unauthorized absence with effect from 23rd June, 1996 to 21st June, 2003 being a total of 2562 days was directed to be treated as "dies non" for all purposes.

This order caused the petitioner to finally move in the matter. It appears that he filed a petition under Rule 28(a) of the BSF Rules seeking setting aside of the order of dismissal. The petition was rejected by the competent authority by an order dated 17th September, 2004. The revisional authority has noted the above facts especially the failure of the petitioner to give any reasons for his desertion from the force and prolonged absence from duty which culminated in the absence of the order by dismissal despite having been given adequate chance to resume duty by way of registered letters and issuance of the notice to show cause prior thereto.

Learned Counsel for the petitioner has contended that the petitioner was prevented by strong family reasons from resuming duty. The petitioner has advanced terminal sickness of his mother who is stated to have been suffering from cancer as the reason which compelled him to desert from duty. It is contended that on 23rd August, 1996, his family met with an accident while going to meet his in-laws and that in this accident, his elder son who was aged about 12 years expired on the spot. It is further stated that his wife and younger son were also severally injured and that thereafter the petitioner''s wife lost both her legs. The petitioner contends that on account of these problems, he was suffering from depression and receiving treatment and for this reason could not response to the communications of the respondents.

We have considered the above submissions. Undoubtedly, if the stated facts are correct, the petitioner suffered extreme trauma in 1996. However, the petitioner fails to disclose the date of expiry of his mother. He places no record at all to support the contention with regard to the accident on 23rd August, 1996 and the injuries which resulted as a result thereof to his family. The petitioner mentions these unfortunate events in 1996. But renders not a word of explanation for his silence 2004, a long period of eight years.

Despite the prolonged and complete silence from the petitioner, the respondents however, appeared to have dealt with the matter compassionately. No penal action was proposed against the petitioner who was repeatedly given an opportunity to report to the battalion in order to enable the respondents to take action as per prescribed procedure even to regularize the petitioner''s absence.

It has been also noted that such an explanation for his unauthorized absence has seen the light of the day for the first time only in a communication sent to the Director General of the Border Security Force after the passing of the order dated 17th September, 2004 more than eight years after his desertion. It appears that neither the want of salary on account of his absence nor the repeated requests of the respondents to resume duty moved the petitioner to do so.

No legally tenable ground for challenge to the impugned orders has been even urged before this Court let alone made out.

In these circumstances, we see no merit in this writ petition which is hereby dismissed.