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Judgment
SUDEEPTI SHARMA J.
The present writ petition has been filed under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing of order of dismissal dated 06.12.1999 (Annexure P-8) as well as order dated 09.12.2003 (Annexure P-11) vide which re-instatement of the petitioner has been rejected.
Brief facts of the case are that petitioner was enrolled as a Constable in the Border Security Force. After death of his wife on 07.08.1994, FIR No.85 was registered against him under Sections 304-B and 498-A of the Indian Penal Code, 1860, and Sections 3 and 4 of the Dowry Prohibition Act, 1961. He was arrested and was placed under suspension w.e.f. 08.08.1994, vide order dated 26.11.1994. On 20.03.1997, the suspension of the petitioner was revoked, after he was granted bail. Petitioner was granted leave for 24 days and earned leave for 06 days and was to report by 02.09.1999, which admittedly he did not. Thereafter, since he did not report back to the respondents, therefore, after issuing him show cause notice dated 15.11.1999 proposing dismissal from service, he was dismissed from service on 06.12.1999. Hence, the present writ petition.
Learned counsel for the petitioner contends that principles of natural justice were not followed before dismissal of the petitioner, since neither any show cause notice was issued nor inquiry etc. was conducted. He, therefore, prays that the present petition be allowed.
Per contra, learned counsel for the respondents submits that impugned order is dated 06.12.1999 and the writ petition was filed in the year 2004 i.e. after a delay of 04 years from the date of order of dismissal. He, therefore, prays that the present writ petition be dismissed on the ground of delay itself.
I have heard learned counsel for the parties and perused the whole file of this case with their able assistance.
A perusal of file shows that, admittedly, the petitioner was arrested in the year 1994 in a criminal case and was released on bail in the year 1997. After the dismissal order dated 06.12.1999, the petitioner did not admittedly file any departmental appeal or any writ petition challenging the same. On 30.10.2003, the petitioner first time approached the respondents vide communication dated 30.10.2003, which is placed on record as Annexure P-10 and the same is reproduced as under:-
“To The Director General, Headquarters, Border Security Force, Block No. 10, C.G.O Complex, Lodhi Road, New Delhi.
Subject: For reinstatement in service after acquittal by the court.
Sir.
Respectfully submitted that ex-constable No. 89243092, Santosh Kumar Mishara was posted at 95 Battalion, BSF at Derababananak, District Gurdaspur.
Sir, the applicant submits that the applicant had submitted an application with regard to his service in the office on 3-9-2003, That the applicant was dismissed from service because a case under Section 304-B, 498-A was registered against the applicant on 8-8-94 after the death of his wife on the complaint by his in-laws at P.S Sikandarpur, District Janpath Etah, (U.P).
2.Because of the applicant being accused he wanted his permanent posting at Delhi or Bareli (UP) so as to enable him to present in the court every month more than 2 or 3 times when the dates were fixed. It would not possible for the applicant to meet his expenses of going and coming for the hearings due to the limited resources with him and for the purposes of permanent posting one application was moved on 15-3-99 in the office of 96 Battalion of BSF.
3.That the applicant had come to present himself in the case and was granted one months leave on 4-8-99 so as to enable him to get his case completed in one month and he was not to be given leave again and again. After coming on leave, the applicant had made an application for extension of leave on half pay to 96 Battalion of BSF Gurdaspur, Punjab but his leave was not extended. The applicant was in dire need of leave as the other party was vigorously following the case for favourable decision.
4.The applicant in his ten years of service has not been subjected to any departmental enquiry nor he ever absented himself. This was his first chance due to the special situation. The applicant was kept under suspension and from 8-8-1994, to April' 1995, for 9 months, he was given full pay and for 25 months half pay and he was exempted from the personal provident fund but no amount was received by the applicant.
5.That the case against the applicant is over on 24-2-2002 and the applicant has been acquitted. That on account of the fact that the acquittal tension of the applicant is over, wants to join the service.
Therefore, it is prayed that the applicant be taken back in service. He shall be thankful to you and it should be great mercy on him.
Dated: 30-10-2003 sd/- Santosh Kumar Mishra son of Shri Ulfat Ram Mishra, resident of Mukh Awaz, village Nandholi, P.O Bahura Bia Pitali District: Etah: U.P
Enclosures:
1.Application for service.
2.Copy of the judgment showing acquittal Applicant
3.Application for transfer.
4.A copy of the order of suspension.
5.Earlier applications regarding service.”
A perusal of the above shows that the petitioner was not at all bothered about his dismissal order and was waiting for the decision of the criminal case pending against him. His own representation, as reproduced above, shows his conduct and sense of responsibility towards his job.
A perusal of the file further shows that the petitioner was granted 24 days earned leave w.e.f. 04.08.1999 to 27.08.1999 and 06 days half pay leave w.e.f. 28.08.1999 to 02.09.1999. He was required to join on duty on 03.09.1999, but he failed to join the same. He was directed to re-join his duty vide registered letter dated 08.09.1999 and again on 13.10.1999 but he did not even respond to the same by way of any reply or any communication. No appeal or revision was filed against the order of dismissal dated 06.12.1999. The present writ petition has been filed after a lapse of 04 years. The contention of the petitioner that before dismissal, no show cause notice was issued to him, is rejected since a perusal of the file shows that the petitioner was issued show cause notice to which, he never responded to. Therefore, once the petitioner was absent from duty and was not responding to the communications/show cause notices sent by the respondents, the respondents cannot be said to be at fault. A bare reading of Annexure P-10, which is reproduced as above, i.e. first communication dated 30.10.2003 after the dismissal shows the conduct of the petitioner and in the same itself, he was admitting that he was waiting for his case to be completed. The petitioner was enrolled as a Constable in the Border Security Force (BSF) and in the disciplined force, such kind of casual behaviour amounts to grave misconduct.
Hon’ble the Supreme Court in State of U.P. Vs. Ashok Kumar Singh, 1996(2) SCT 139 has held that police is a disciplined force and remaining absent from duty without leave amounts to grave misconduct.
In view of the above, this Court does not find any merit in the present writ petition and the same is hereby dismissed.
Pending applications, if any, also stand disposed of.