Pancham Singh vs Union of India and Others

Gita Mittal, J.—The instant writ petition assails an order dated 27th January, 1994 passed by the Commandant, 40th Battalion, BSF,

dismissing the petitioner from service w.e.f. 27th January, 1994 and the order 8th February, 1994 passed by the Sector Headquarters, Amritsar

rejecting the appeal of the petitioner. The undisputed facts giving rise to the present petition are briefly noticed hereafter. The petitioner was

appointed as a Constable in the Border Security Force on 1st April, 1987. He was under treatment for some ailment at the Sector Headquarter

Hospital, Amritsar. On the 8th September, 1993, the petitioner was referred for his treatment to the Base Hospital, Jalandhar. In this regard,

reliance has been placed by the parties on the Discharge Summary dated 9th September, 1993 issued by the Sector HQs. Hospital which clearly

requires the petitioner to report to the Base Hospital, Jalandhar for further treatment.

It is admitted that on 9th September, 1993 itself, the petitioner left by train for Jalandhar. However, he never reached the Base Hospital,

Jalandhar. As per the petitioner, he became unconscious in the train and on regaining senses, he found that he was in Ambala city. The petitioner

proceeded from Ambala City to his home town in Moradabad albeit without any intimation to either the Base Hospital, Jalandhar or his Unit.

The respondents have claimed that they thereafter received knowledge in December, 1993 that the petitioner had not reported to the Base

Hospital, Jalandhar for treatment. As a result, they sent a letter to the petitioner at his home address directing him to join duties but the petitioner

neither reported to the unit nor responded to the communication from the respondents. The petitioner has claimed that on 10th September, 1993,

he had sent a telegraphic information to the respondents. This fact is, however, disputed by the respondents. In this regard, the petitioner has

placed a typed copy of a certificate dated 25th April, 1994 issued by the In-charge of the Communication Centre, Amroha, District Moradabad

certifying that the petitioner had sent a telegram to the Commandant, 40th Battalion, BSF Khasa Camp district, Amritsar, Punjab. However, this

certificate by itself would not establish either the contents of the telegram or the receipt of the telegram by the respondents. The respondents have

denied receipt of any such telegraphic communication on affidavit and would have discharged any onus or burden of proof in order to meet the

requirement of General Clauses Act and the Indian Evidence Act.

The respondents urge that they were, thereafter, constrained to make inquiries with regard to the petitioner''s whereabouts and despatched a

letter dated 5/6th January, 1994 to the SHO of the Police Station Rajabpur, District Moradabad, Uttar Pradesh requesting steps for tracing the

petitioner as well as to the petitioner''s father Shri Fateh Singh calling upon him to send the petitioner to join his duty forthwith. The respondents

have explained that for the reason that the petitioner''s period of absence exceeded 30 days, a Court of Inquiry was also directed on 7th January,

1994 into the same and was duly conducted.

In addition to the above, on 11th January, 1994, the respondents dispatched a show cause notice to the petitioner informing the petitioner that

he was absent without leave for a long period and consequently, his further retention in service was considered undesirable. The Commandant of

the 40th Battalion, BSF also thereby informed the petitioner that it was tentatively proposed to terminate his services by way of an order of

dismissal. Opportunity was given to the petitioner to represent any defence against the proposed action before the 25th January, 1994. By the

same communication, the petitioner was informed that in case he failed to reply, the respondents would consider that he had no defence to put

forward. It is an admitted position that the petitioner failed to respond to the respondents before the 25th January, 1994.

We now enter the arena of dispute between the parties. The petitioner claims that he sent a response to the show cause notice on 25th January,

1994. The respondents have disputed receipt of any such response from the petitioner. Unfortunately, the petitioner has failed to place copy of the

reply which he claims to have sent to the respondents. Even the contents thereof or the reasons espoused for the petitioner''s absence is not

disclosed.

Before us, Ms. Tamali Wad, learned counsel for the petitioner has vehemently urged that the petitioner was unwell and was taking treatment for

tuberculosis and for this reason had failed to report at the place of duty. However, this submission is to be noted only for the sake of rejection.

Keeping in view the petitioner''s state of health, the Sector Headquarters Hospital, Amritsar had very carefully recommended the petitioner and

referred for further treatment to the Base Hospital at Jalandhar which was certainly a larger hospital with expert medical facilities maintained by the

respondents. The petitioner has very deliberately failed to report to the Base Hospital, Jalandhar. Even if his plea of having fallen unconscious was

to be accepted, the petitioner is unable to explain as to why he did not go to Jalandhar barely one and a half hours or two hours journey from

Amritsar. Instead he has consciously proceeded to his village Bhawalpur Basli, PO Sarkada Kamal, district Moradabad in Uttar Pradesh which

was a much longer distance away. This was certainly a conscious act on the part of the petitioner.

As per the medical certificate on which the petitioner places reliance, he has taken treatment between 10th September, 1993 and 13th

December, 1993 from some Primary Health Centre of tuberculosis at Manota. Even this plea is difficult to accept inasmuch as the medical

certificate on which the petitioner has relied, is dated 18th January, 1994 which is after the petitioner received the show cause notice dated 11th of

the January, 1994 from the respondents. The medical certificate is not supported by any contemporary record of either prescriptions, treatment or

of any medication(s) which the petitioner may have taken, if he was actually sick or was under treatment. We are noticing this fact only in view of

the categorical submission on behalf of the petitioner that his absence was bona fide and only on account of sickness. Interestingly the second

document, a fitness certificate relied upon by the petitioner also date 18th of January, 1994 has been obtained from the Primary Health Centre,

Joya, Moradabad. These documents do not inspire confidence.

The plea of the petitioner is difficult to believe given the afore-noticed facts. The petitioner does not even attempt an explanation for his

absence between 13th December, 1993 and 27th January, 1994. In the above circumstances, the stand of the respondents that no reply having

been received from the petitioner and the petitioner having been given a notice to show cause in accordance with law, the respondents had no

option but to pronounce an order dated 27th January, 1994 recording its satisfaction that the petitioner was absent without leave w.e.f. 8th

September, 1993 without any reasonable cause and his further retention in service was undesirable.

It is urged by Ms. Wad, learned counsel for the petitioner that the respondents have legalised the period of the petitioner''s absence w.e.f. 8th

September, 1993 to 27th January, 1994 and had treated the same as a period of the petitioner having been on leave without pay. In the given facts

and circumstances, this would not impact the order of punishment. The petitioner admits that no leave had been sanctioned in favour of the

petitioner. The petitioner not only remained absent but he did not care even to inform his employers with regard to the same nor entered any

explanation when called upon to do so.

For this reason, no fault can be found even in the order dated 8th February, 1994. The respondents have exercised jurisdiction in accordance

with Section 11 read with Rule 22 of the Border Security Force Act. In this regard, our attention is drawn to the pronouncement of the Division

Bench of this court in WP (C) No. 6577/2002 Ex. Const Akhilesh Kumar Vs. The Director General, BSF & Ors. wherein in para 9, the court

held thus:-

Being aggrieved of the aforesaid action this writ petition is filed on which we have heard the learned counsel appearing for the parties. Counsel for

the petitioner has submitted before us that the petitioner was on leave and he was receiving medical treatment for a head injury. On going through

the record we find that the petitioner had undergone surgery for Arachnoid Cyst Temporal Lobe. However after the said period the petitioner

joined 30 Bn. BSF on 27th October, 1995. The petitioner for the said period i.e. from 1st June, 2000 to 16th July, 2000 was found to be roaming

here and there as stated by his own father. It is also indicated from the said report submitted by the police that the petitioner was not interested to

rejoin duties. The petitioner belongs to a disciplined force and therefore it was incumbent upon him to inform the respondents regarding his absence

even if there was any difficulty for the petitioner to rejoin the duties. He ignored all notices issued to him by the respondents directing him to rejoin

his duties. Having no other alternative, action has been taken against the petitioner in accordance with the provision of Section 11 of the BSF Act.

Under similar circumstances actions taken by the respondents exercising power under the same provision of law have been upheld. In that regard

our attention is drawn to a Division Bench decision of this Court in Ex. Ct. Rai Kishan v. Union of India and Others-CWP No. 7665/2001,

disposed of on 4th September, 2002. In the said decision also a similar issue came up for consideration before this Court. It was held in the said

decision that since the show cause notice issued to the petitioner was in accordance with law and incorporated the opinion of the Commandant that

retention of the petitioner in service was undesirable and since his trial by security force court was held to be inexpedient and impracticable and

therefore there is no illegality or irregularity in passing the impugned order. Similar is the situation in the present case also. Competent authority in

the show cause notice recorded that retention of the petitioner in service was undesirable and his trial by security force court was inexpedient and

impracticable. Cases of Gouranga Chakraborty Vs. State of Tripura and Another, and Union of India and others Vs. Ram Pal, were also referred

to wherein it was held that the power exercised by a Commandant u/s 11(2) read with Rule 177 was an independent power which had nothing to

do with the power exercisable by a security force court and once show cause notice was issued in terms thereof, no further inquiry was required to

be held if the delinquent person failed to reply to the notice and to deny the allegations in the process.

Our attention is also drawn by the counsel appearing for the petitioner to a medical certificate dated 4th February, 2001 which is placed on record

in support of his contention that the petitioner was indisposed during the entire period during which he was allegedly absent unauthorisedly. The

said medical certificate is issued by CMO, Fategarh. On going through the said medical certificate we find that he was advised rest for the period

from 12th July 2000 to 4th February 2001 which is the period during which he was unauthorisedly absent. The said certificate does not state that

the petitioner had undergone any surgery in the said hospital of the CMO Fategarh. It was only a certificate stating that he was suffering from post

operative arachanoid cyst with epileptic seizure and advised rest for the aforesaid period. The said operation as already indicated was done in the

year 1992 and we do not find any reason given in the said certificate for advising rest to the petitioner for such a long period. Except for that

medical certificate no other contemporaneous record is placed on record to show that he was ever admitted to any hospital nor any document is

placed on record to show and indicate that he was purchasing medicines or he was even examined as an out door patient around the same time.

We have already referred to the report of the police from which it is indicated that the petitioner was not in the hospital for the father of the

petitioner would have definitely given such a statement to the police if it would have been so. Therefore the aforesaid medical certificate does not

inspire confidence and cannot at all be relied upon.

Considering the facts and circumstances of this case we are of the considered opinion that ratio of the aforesaid decisions of this Court as also of

the Supreme Court are squarely applicable to the facts and circumstances of this case as in the present case also the independent power vested in

the Commandant u/s 11(2) read with Rule 177 was exercised after issuing show cause notice to the petitioner in terms thereof. Therefore we hold

that no further inquiry was required to be held in view of the fact that the petitioner has failed to file any reply to the show cause notice and to deny

the allegation in the process.

In a recent decision of the Supreme Court in State of Rajasthan and Another Vs. Mohammed Ayub Naz, the Supreme Court after referring to

many other precedences has held that absenteeism from office for prolong period of time without prior permission by the Government servant has

become a principal cause of indiscipline which have greatly affected various Government services. It is also held that in order to mitigate the

rampant absenteeism and willful absence from service without intimation to the Government the Government has promulgated a rule that if the

government servant remains willfully absent for a period exceeding one month and if the charge of willful absence from duty is proved against him,

he may be removed from service. The Supreme Court held that the order of removal from service passed in the said case was the only proper

punishment to be awarded in view of the fact that Government servant was absent from duty for long period without intimation to the Government.

Ram Pal (supra) is also a case where action was taken by the respondents under the provisions of Section 11(2). In the said decision it was held

that once a show cause notice is issued recording tentative opinion as required, nothing further was required to be done in the said case as the

employee did not reply to the notice. Therefore it was held that as there was no denial of the allegation nor was there any request for holding an

inquiry, therefore the action taken is justified.

The principles laid down in this judicial precedent squarely apply to the present case.

For all the foregoing reasons, we find no merits in this writ petition which is hereby dismissed.