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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 2nd September, 2011
+ WP(C) 3953/1997
PITAMBAR KABIRA ..... Petitioner
Through: Mr.J.S.Manhas, Advocate.
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Dr.Ashwani Bhardwaj, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J. (Oral)
1. 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).
2. The petitioner was a part of „D‟ Coy of the battalion,
and we highlight that different companies of the battalion were
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stationed at different border outposts. Each company was
under the command of a Coy.Commander.
3. 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.
4. 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.
5. Petitioner did not report back at the BOP Kotkubba
and chose to go home. He did not report back to the
Coy.Commander.
6. 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.
7. 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
WP(C) 3953/1997 Page 2 of 9
from service on 13.8.1994 exercising power under Section 11 of
the BSF Act read with Rule 177 of the BSF Rules.
8. 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.
9. 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.
10. 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
WP(C) 3953/1997 Page 3 of 9
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.
11. A legal plea is urged. It is urged that no action could
be taken under Section 11 of the BSF Act read with Rule 177 of
the BSF Rules, without trying the petitioner at a trial.
12. With respect to the applicability and the power under
Section 11 of the BSF Act and Rule 177 of the BSF Rules, with
reference to the decision of the Supreme Court reported as 1996
(2) SLR 293 Union of India vs. Rampal, in the judgment and
order dated 21.3.2006 disposing of WP(C) No.6577/2002 titled
„Ex.Const.Akhilesh Kumar vs. DG BSF & Ors.‟, 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 27 th
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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 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
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 Gauranga Chakraborty
v.State of Tripura reported in (1989) 3 SCC 314 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 under Section
11(2) read with Rule 177 was an independent power
which had nothing to do with the power exercisable by
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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
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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
under Section 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 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.”
13. Thus, the legal plea urged that action could not be
WP(C) 3953/1997 Page 7 of 9
taken for prolonged unauthorized absence, under Section 11 of
the BSF Act read with Rule 177 of the BSF Rules, is negated.
14. 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.
15. 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.
16. 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.
WP(C) 3953/1997 Page 8 of 9
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.
17. We find no merit in the writ petition and hence
dismiss the same.
18. No costs.
PRADEEP NANDRAJOG, J.
SUNIL GAUR, J.
SEPTEMBER 02, 2011
dk
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