JUDGMENT
Devinder Gupta, J.
(1) Order of dismissal Annexure P-l dated 29th June, 1992 and order Annexure P-3 dated 2nd April, 1994 conveying rejection of his petition are under challenge in this petition filed by the petitioner under Article 226 of Constitution of India.
(2) The admitted facts are: that the petitioner was enrolled in Border Security Force (for short ‘BSF’) on 15th April, 1988, and joined 124 Bn. BSF. He was posted to 22 Bn. Bsf on 28th January, 1989. Sixty days Earned Leave was granted to him with effect from 21st January, 1991 to 23rd March, 1991. Respondent’s case is that, the petitioner did not report back to his Unit for more than 30 days – and thereby overstayed beyond the leave period. A one-man Court of enquiry under Section 62 of the Border Security Force Act (hereinafter referred to as ‘the Act’) was constituted. Based upon the opinion of the Court of Enquiry, it is alleged that the petitioner was declared ‘deemed to be a deserter’. Subsequently, a show cause notice was sent to the petitioner in 18.2.1992 tentatively proposing to terminate his services by way of dismissal. Petitioner did not file any reply thereto. As such on 29.6.1992 through order Annexure P-l he was dismissed from service by the Commandant, 22 Bn., Bsf as per the provisions of Section 11(2) of Act read with Rule 177 of the rules framed thereunder.
(3) The challenge to the impugned orders is on the ground that the dismissal by the Commandant in exercise of his administrative powers is without following either of the three alternatives specified in Sections 19 and 20 of the Act and Rules 20,21 and 22 of the Rules, treating the absence without leave as a misconduct. As such the impugned order has been passed without following mandatory provisions of the Act, the same is bad in law.
(4) We have heard Counsel for the parties and been taken through the record.
(5) The show cause notice dated 18.2.1992 reads : “You are overstaying leave without any sanction permission w.e.f. 24.3.1991. I am of the opinion that because of this absence without leave for such a long period, your further retention in service is undesirable. I, therefore, tentatively propose to terminate your service by way of dismissal. If you have anything to urge in your defense or against the proposed action, you may do so before 31st March, 1991. In case no reply is received by that date, it will be inferred that you have no defense to put forward”.
A bare reading of the notice reveals that the opinion formed by the Commandant that the petitioner’s retention in service was undesirable is because of the alleged absence without leave with effect from 24.3.1991. Accordingly, it was proposed to terminate his service for which he was called upon to show cause as to why his services be not terminated by an order of dismissal. On failure of the petitioner to submit any reply the following order was passed on 29th June, 1992: “I have gone through the case of overstaying against No. 88622527 Const. Somber Singh of ‘F’ Coy of this Unit. He was given an opportunity to show cause vide this office L/No. 142/Estt./Disc/22/92/1218 dated 18.2.1992 but J he has deliberately avoided accepting the show cause notice which has been returned undelivered. I am satisfied that he is overstaying leave w.e.f. 24.3.1991 without sufficient cause and his further retention in service is undersirable. I, therefore, dismiss him from service with effect from 24.6.1992 (AN). Xx Xx XX”
(6) The order of dismissal, as noticed above, has been passed by the Commandant administratively in exercise of the powers under Section 11(2) of the Act. The opinion was formed by the Commandant because of the misconduct of overstaying me leave without sufficient cause. Overstaying leave without sufficient cause is a misconduct for which it was necessary for the respondents to have tried the petitioner under Section 48 of the Act for the offence under Section 19-A of the Act. Such proceedings which could be initiated against him; since absence without leave is an offence for which the petitioner could be charged with the said offence and tried by Security Force Court in accordance with the provisions of the Act and the rules framed thereunder; were not initiated. Even an opinion was not formed that it was not feasible to try the petitioner by Security Force Court. The petitioner’s services, thus, could not have been dispensed with on exercise of administrative powers under Section 11(2) of the Act. The case is fully covered by the decision of a Division Bench of this Court in Sees Ram v. Union of India and Others, (CW 1809/ 93 decided on 6.9.1996)
(7) Consequently, the writ petition is allowed. The impugned orders are quashed and set aside directing the respondents to allow the petitioner to join his duty forthwith with all consequential benefits as regards his pay and continuity of service. Arrears of pay etc., if any, will be worked out and paid within a period of eight weeks from today.