Pitambar Kabira vs Union of India (UOI) and Anr

Pradeep Nandrajog, J.—Serving under BSF as a Constable, Petitioner sought 60 days'' earned leave which was sanctioned from 16.12.1993 to 13.2.1994. Within a gap of 1 month, Petitioner sought leave once again, stating that his mother was seriously unwell. At that time, the Petitioner was stationed at the BOP Kotkubba. The battalion headquarter was at Kupwara (Jammu & Kashmir).

The Petitioner was a part of "D" Coy of the battalion, and we highlight that different companies of the battalion were WP(C) 3953/1997 stationed at different border outposts. Each company was under the command of a Coy. Commander.

On 28.3.1994, without any movement order, Petitioner reached the battalion headquarter and met the Adjutant and the 2-IC. He made a grievance that the Coy. Commander was not sanctioning leave, telling the Petitioner that he had No. manpower. Petitioner requested that his mother being unwell, he should be sanctioned leave.

The Petitioner was told that procedures of law had to be followed. He was assured a sympathetic consideration of his request. He was requested to report back to the Coy. Commander and hand over the leave application to the Coy. Commander. He was assured that the matter would be looked into with sympathy.

Petitioner did not report back at the BOP Kotkubba and chose to go home. He did not report back to the Coy. Commander.

Absconding/absenting from 28.3.1994, Petitioner reported to the battalion headquarters after 92 days on 27.6.1994. He was told to report to the Commandant. He learnt that some disciplinary action would be taken against him and thus he left the headquarters on 27.6.1994 i.e. the same day on which he reported back.

On 28.7.1994, show-cause notice was sent to the Petitioner requiring him to show-cause as to why his services be not terminated on account of continued unauthorized absence. No. reply being received till 12.8.1994, Petitioner was dismissed from service on 13.8.1994 exercising power u/s 11 of the BSF Act read with Rule 177 of the BSF Rules.

Instant writ petition was filed stating that the Petitioner was given an assurance by the superior officers whom he went to meet on 28.3.1994 of leave being sanctioned. It is pleaded that since his mother was unwell and his father was anxious he left the leave application with superior authorities and left. Who that superior authority was, has not been disclosed in the writ petition. It is pleaded that Petitioner voluntarily reported back on 27.6.1994. He was interviewed by the Commandant on 28.6.1994. Petitioner alleges that without any show-cause notice, the Commandant dismissed him from service on 29.6.1994.

We find the said averment to be incorrect for the reason show-cause notice was issued on 28.7.1994 and the order in question, which Petitioner himself has filed and is at page 11 of the writ petition, clearly records that the Petitioner would be struck off from the strength of the Unit on 13.8.1994.

From the facts noted herein above it is apparent that the Petitioner availed 60 days'' earned leave from 16.12.1993 to 13.2.1994. Within a month thereof he requested for further leave and was told by the Coy. Commander that due to shortage of manpower he i.e. the Coy. Commander could not sanction earned leave within such short span of time and when Petitioner reported to the headquarter of the battalion and prayed for leave to be sanctioned to him, he was told to follow the procedures of law. The procedure of law required him to submit leave application with the Coy. Commander who then was to forward the same to the Commandant. The Petitioner, who had left the company, stationed at the border outpost, without any out-pass, did not go back to the company. He never submitted any leave application with the Coy. Commander. After 92 days, Petitioner returned back on 27.6.1994 and learnt that disciplinary action would be taken against him and he ran away. He never reported back till the show-cause notice dated 28.7.1994 was issued. He never reported back till 13.8.1994 when he was dismissed from service.

A legal plea is urged. It is urged that No. action could be taken u/s 11 of the BSF Act read with Rule 177 of the BSF Rules, without trying the Petitioner at a trial.

With respect to the applicability and the power u/s 11 of the BSF Act and Rule 177 of the BSF Rules, with reference to the decision of the Supreme Court reported as Union of India v. Rampal 1996 (2) SLR 293, in the judgment and order dated 21.3.2006 disposing of titled "Ex.Const.Akhilesh Kumar v. DG BSF and Ors. WP (C) No. 6577/2002, a Division Bench of this Court opined as under:

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 Arachanoid 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.Raj Kishan v. Union of India and Ors. -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 inservice 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 v. Ram Pal reported in 1996 (2) SLR 297 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 eplileptic 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 WP(C) 3953/1997 Page 6of 9 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 Anr. v. Mohammed Ayub Naz reported in 2006 I AD (SC) 308 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 wilful 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.

Thus, the legal plea urged that action could not be WP (C) 3953/1997 Page 7 of 9 taken for prolonged unauthorized absence, u/s 11 of the BSF Act read with Rule 177 of the BSF Rules, is negated.

We need to highlight the fact that the Petitioner has filed No. annexure along with the writ petition to show that his mother was unwell. Not once did the Petitioner furnished proof of his mother''s sickness.

Facts noted above show that the Petitioner was granted 60 days'' earned leave w.e.f. 16.12.1993 to 13.2.1994. He demanded further leave. The Coy. Commander could not sanction leave for the obvious reason manpower was not adequate with him. When the Petitioner approached the 2-IC, he was assured of a sympathetic consideration. But the Petitioner was required to follow the procedures of law. The same required the Petitioner to submit a leave application with the Coy. Commander who was to forward the same to the Commandant. The Petitioner never reported to the Coy. Commander and went home. He returned after 92 days but on learning that disciplinary action would be taken, he ran away. He never returned till the penal order dated 13.8.1994 was issued.

Requirement of discipline in Central Para-Military Forces is of the highest necessity. The year 1993-94 was one where insurgency had yet to be stamped out fully in the State of Punjab, though it had considerably subsided. It was at its peak in the State of Jammu & Kashmir. The battalion of the Petitioner was in the State of Jammu & Kashmir. The Petitioner could not be granted and indeed could not claim right to indefinite leave. Assuming his mother was unwell, but it cannot be ignored that 60 days'' leave had been sanctioned from 16.12.1993 to 13.2.1994, Petitioner could not be a judge in his own cause and leave the battalion on his own.

We find No. merit in the writ petition and hence dismiss the same.

No costs.