{"id":250935,"date":"2011-09-02T00:00:00","date_gmt":"2011-09-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pitambar-kabira-vs-union-of-india-anr-on-2-september-2011"},"modified":"2018-05-29T03:17:02","modified_gmt":"2018-05-28T21:47:02","slug":"pitambar-kabira-vs-union-of-india-anr-on-2-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pitambar-kabira-vs-union-of-india-anr-on-2-september-2011","title":{"rendered":"Pitambar Kabira vs Union Of India & Anr. on 2 September, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Pitambar Kabira vs Union Of India & Anr. on 2 September, 2011<\/div>\n
Author: Pradeep Nandrajog<\/div>\n
$~5\n*   IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                             Date of Decision: 2nd September, 2011\n\n+                         WP(C) 3953\/1997\n\n        PITAMBAR KABIRA                           ..... Petitioner\n                 Through:      Mr.J.S.Manhas, Advocate.\n\n                               versus\n\n        UNION OF INDIA & ANR.               ..... Respondents\n                  Through: Dr.Ashwani Bhardwaj, Advocate.\n\n\n        CORAM:\n        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG\n        HON'BLE MR. JUSTICE SUNIL GAUR\n\n     1. Whether the Reporters of local papers may be allowed\n        to see the judgment?\n     2. To be referred to Reporter or not?\n     3. Whether the judgment should be reported in the Digest?\n\nPRADEEP NANDRAJOG, J. (Oral)\n<\/pre>\n
1.           Serving under BSF as a Constable, petitioner sought
\n60 days\u201f earned leave which was sanctioned from 16.12.1993 to
\n13.2.1994.        Within a gap of 1 month, petitioner sought leave
\nonce again, stating that his mother was seriously unwell. At that
\ntime, the petitioner was stationed at the BOP Kotkubba.              The
\nbattalion headquarter was at Kupwara (Jammu & Kashmir).\n<\/p>\n
2.           The petitioner was a part of \u201eD\u201f Coy of the battalion,
\nand we highlight that different companies of the battalion were
\nWP(C) 3953\/1997                                            Page 1 of 9<\/span>
\n stationed at different border outposts.                  Each company was
\nunder the command of a Coy.Commander.\n<\/p>\n
3.           On        28.3.1994,   without        any    movement      order,
\npetitioner reached the battalion headquarter and met the
\nAdjutant and the 2-IC.              He made a grievance that the
\nCoy.Commander was not sanctioning leave, telling the petitioner
\nthat he had no manpower. Petitioner requested that his mother
\nbeing unwell, he should be sanctioned leave.\n<\/p>\n
4.           The petitioner was told that procedures of law had to
\nbe followed. He was assured a sympathetic consideration of his
\nrequest.          He    was   requested       to    report   back     to    the
\nCoy.Commander and hand over the leave application to the
\nCoy.Commander.            He was assured that the matter would be
\nlooked into with sympathy.\n<\/p>\n
5.           Petitioner did not report back at the BOP Kotkubba
\nand chose to go home.               He did not report back to the
\nCoy.Commander.\n<\/p>\n
6.           Absconding\/absenting         from       28.3.1994,     petitioner
\nreported to the battalion headquarters after 92 days on
\n27.6.1994. He was told to report to the Commandant. He learnt
\nthat some disciplinary action would be taken against him and
\nthus he left the headquarters on 27.6.1994 i.e. the same day on
\nwhich he reported back.\n<\/p>\n
7.           On 28.7.1994, show-cause notice was sent to the
\npetitioner requiring him to show-cause as to why his services be
\nnot terminated on account of continued unauthorized absence.
\nNo reply being received till 12.8.1994, petitioner was dismissed
\nWP(C) 3953\/1997                                                   Page 2 of 9<\/span>
\n from service on 13.8.1994 exercising power under Section 11 of
\nthe BSF Act read with Rule 177 of the BSF Rules.\n<\/p>\n
8.           Instant writ petition was filed stating that the
\npetitioner was given an assurance by the superior officers whom
\nhe went to meet on 28.3.1994 of leave being sanctioned. It is
\npleaded that since his mother was unwell and his father was
\nanxious he left the leave application with superior authorities
\nand left.         Who that superior authority was, has not been
\ndisclosed in the writ petition.      It is pleaded that petitioner
\nvoluntarily reported back on 27.6.1994. He was interviewed by
\nthe Commandant on 28.6.1994. Petitioner alleges that without
\nany show-cause notice, the Commandant dismissed him from
\nservice on 29.6.1994.\n<\/p>\n
9.           We find the said averment to be incorrect for the
\nreason show-cause notice was issued on 28.7.1994 and the
\norder in question, which petitioner himself has filed and is at
\npage 11 of the writ petition, clearly records that the petitioner
\nwould be struck off from the strength of the Unit on 13.8.1994.\n<\/p>\n
10.          From the facts noted herein above it is apparent that
\nthe petitioner availed 60 days\u201f earned leave from 16.12.1993 to
\n13.2.1994.        Within a month thereof he requested for further
\nleave and was told by the Coy.Commander that due to shortage
\nof manpower he i.e. the Coy.Commander could not sanction
\nearned leave within such short span of time and when petitioner
\nreported to the headquarter of the battalion and prayed for
\nleave to be sanctioned to him, he was told to follow the
\nprocedures of law. The procedure of law required him to submit
\nWP(C) 3953\/1997                                        Page 3 of 9<\/span>
\n leave application with the Coy.Commander who then was to
\nforward the same to the Commandant. The petitioner, who had
\nleft the company, stationed at the border outpost, without any
\nout-pass, did not go back to the company. He never submitted
\nany leave application with the Coy.Commander. After 92 days,
\npetitioner    returned   back   on   27.6.1994   and       learnt    that
\ndisciplinary action would be taken against him and he ran away.
\nHe never reported back till the show-cause notice dated
\n28.7.1994 was issued.      He never reported back till 13.8.1994
\nwhen he was dismissed from service.\n<\/p>\n
11.          A legal plea is urged. It is urged that no action could
\nbe taken under Section 11 of the BSF Act read with Rule 177 of
\nthe BSF Rules, without trying the petitioner at a trial.\n<\/p>\n
12.          With respect to the applicability and the power under
\nSection 11 of the BSF Act and Rule 177 of the BSF Rules, with
\nreference to the decision of the Supreme Court reported as 1996
\n(2) SLR 293 Union of India vs. Rampal<\/a>, in the judgment and
\norder dated 21.3.2006 disposing of WP(C) No.6577\/2002 titled
\n\u201eEx.Const.Akhilesh Kumar vs. DG BSF & Ors.\u201f, a Division Bench
\nof this Court opined as under:-\n<\/p>\n
      “Being aggrieved of the aforesaid action this writ
\n      petition is filed on which we have heard the learned
\n      counsel appearing for the parties. Counsel for the
\n      petitioner has submitted before us that the petitioner
\n      was on leave and he was receiving medical treatment
\n      for a head injury. On going through the record we find
\n      that the petitioner had undergone surgery for
\n      Arachanoid Cyst Temporal Lobe. However after the
\n      said period the petitioner joined 30 Bn. BSF on 27 th
\nWP(C) 3953\/1997                                             Page 4 of 9<\/span>
\n       October, 1995. The petitioner for the said period i.e.
\n      from 1st June, 2000 to 16th July, 2000 was found to be
\n      roaming here and there as stated by his own father. It
\n      is also indicated from the said report submitted by the
\n      police that the petitioner was not interested to rejoin
\n      duties. The petitioner belongs to a disciplined force
\n      and therefore it was incumbent upon him to inform the
\n      respondents regarding his absence even if there was
\n      any difficulty for the petitioner to rejoin the duties. He
\n      ignored all notices issued to him by the respondents
\n      directing him to rejoin his duties. Having no other
\n      alternative, action has been taken against the
\n      petitioner in accordance with the provision of Section
\n      11 of the BSF Act. Under similar circumstances actions
\n      taken by the respondents exercising power under the
\n      same provision of law have been upheld. In that
\n      regard our attention is drawn to a Division Bench
\n      decision of this Court in Ex.Ct.Raj Kishan v. Union of
\n      India and Others – CWP No<\/a>.7665\/2001, disposed of on
\n      4th September, 2002. In the said decision also a
\n      similar issue came up for consideration before this
\n      Court. It was held in the said decision that since the
\n      show cause notice issued to the petitioner was in
\n      accordance with law and incorporated the opinion of
\n      the Commandant that retention of the petitioner
\n      inservice was undesirable and since his trial by
\n      security force court was held to be inexpedient and
\n      impracticable and therefore there is no illegality or
\n      irregularity in passing the impugned order. Similar is
\n      the situation in the present case also. Competent
\n      authority in the show cause notice recorded that
\n      retention of the petitioner in service was undesirable
\n      and his trial by security force court was inexpedient
\n      and impracticable. Cases of Gauranga Chakraborty
\n      v.State of Tripura<\/a> reported in (1989) 3 SCC 314 and
\n      Union of India v. Ram Pal<\/a> reported in 1996 (2) SLR 297
\n      were also referred to wherein it was held that the
\n      power exercised by a Commandant under Section
\n      11(2) read with Rule 177 was an independent power
\n      which had nothing to do with the power exercisable by
\nWP(C) 3953\/1997                                          Page 5 of 9<\/span>
\n       a security force court and once show cause notice was
\n      issued in terms thereof, no further inquiry was
\n      required to be held if the delinquent person failed to
\n      reply to the notice and to deny the allegations in the
\n      process.\n<\/p><\/blockquote>\n
      Our attention is also drawn by the counsel appearing
\n      for the petitioner to a medical certificate dated 4th
\n      February, 2001 which is placed on record in support of
\n      his contention that the petitioner was indisposed
\n      during the entire period during which he was allegedly
\n      absent unauthorisedly. The said medical certificate is
\n      issued by CMO, Fategarh. On going through the said
\n      medical certificate we find that he was advised rest for
\n      the period from 12th July 2000 to 4th February 2001
\n      which is the period during which he was unauthorisedly
\n      absent. The said certificate does not state that the
\n      petitioner had undergone any surgery in the said
\n      hospital of the CMO Fategarh. It was only a certificate
\n      stating that he was suffering from post operative
\n      arachanoid cyst with eplileptic seizure and advised rest
\n      for the aforesaid period. The said operation as already
\n      indicated was done in the year 1992 and we do not find
\n      any reason given in the said certificate for advising rest
\n      to the petitioner for such a long period. Except for that
\n      medical certificate no other contemporaneous record is
\n      placed on record to show that he was ever admitted to
\n      any hospital nor any document is placed on record to
\n      show and indicate that he was purchasing medicines or
\n      he was even examined as an out door patient around
\n      the same time. We have already referred to the report
\n      of the police from which it is indicated that the
\n      petitioner was not in the hospital for the father of the
\n      petitioner would have definitely given such a statement
\n      to the police if it would have been so. Therefore the
\n      aforesaid medical certificate does not inspire
\n      confidence and cannot at all be relied upon.
\n      Considering the facts and circumstances of this case
\n      we are of the considered opinion that ratio of the
\n      aforesaid decisions of this Court as also of the Supreme
\nWP(C) 3953\/1997                                         Page 6 of 9<\/span>
\n       Court are squarely applicable to the facts and
\n      circumstances of this case as in the present case also
\n      the independent power vested in the Commandant
\n      under Section 11(2) read with Rule 177 was exercised
\n      after issuing show cause notice to the petitioner in
\n      terms thereof. Therefore we hold that no further
\n      inquiry was required to be held in view of the fact that
\n      the petitioner has failed to file any reply to the show
\n      cause notice and to deny the allegation in the process.
\n      In a recent decision of the Supreme Court in State of
\n      Rajasthan and Another v. Mohammed Ayub Naz<\/a>
\n      reported in 2006 I AD (SC) 308 the Supreme Court after
\n      referring to many other precedences has held that
\n      absenteeism from office for prolong period of time
\n      without prior permission by the Government servant
\n      has become a principal cause of indiscipline which
\n      have greatly affected various Government services. It
\n      is also held that in order to mitigate the rampant
\n      absenteeism and wilful absence from service without
\n      intimation to the Government the Government has
\n      promulgated a rule that if the government servant
\n      remains willfully absent for a period exceeding one
\n      month and if the charge of willful absence from duty is
\n      proved against him, he may be removed from service.
\n      The Supreme Court held that the order of removal from
\n      service passed in the said case was the only proper
\n      punishment to be awarded in view of the fact that
\n      Government servant was absent from duty for long
\n      period without intimation to the Government. Ram Pal
\n      (supra) is also a case where action was taken by the
\n      respondents under the provisions of Section 11(2). In
\n      the said decision it was held that once a show cause
\n      notice is issued recording tentative opinion as required,
\n      nothing further was required to be done in the said
\n      case as the employee did not reply to the notice.
\n      Therefore it was held that as there was no denial of the
\n      allegation nor was there any request for holding an
\n      inquiry, therefore the action taken is justified.”\n<\/p><\/blockquote>\n
13.          Thus, the legal plea urged that action could not be
\nWP(C) 3953\/1997                                        Page 7 of 9<\/span>
\n taken for prolonged unauthorized absence, under Section 11 of
\nthe BSF Act read with Rule 177 of the BSF Rules, is negated.\n<\/p>\n
14.          We need to highlight the fact that the petitioner has
\nfiled no annexure along with the writ petition to show that his
\nmother was unwell. Not once did the petitioner furnished proof
\nof his mother\u201fs sickness.\n<\/p>\n
15.          Facts noted above show that the petitioner was
\ngranted 60 days\u201f earned leave w.e.f. 16.12.1993 to 13.2.1994.
\nHe demanded further leave.         The Coy.Commander could not
\nsanction leave for the obvious reason manpower was not
\nadequate with him. When the petitioner approached the 2-IC,
\nhe was assured of a sympathetic consideration.              But the
\npetitioner was required to follow the procedures of law.         The
\nsame required the petitioner to submit a leave application with
\nthe Coy.Commander who was to forward the same to the
\nCommandant.          The    petitioner   never   reported   to    the
\nCoy.Commander and went home. He returned after 92 days but
\non learning that disciplinary action would be taken, he ran away.
\nHe never returned till the penal order dated 13.8.1994 was
\nissued.\n<\/p>\n
16.          Requirement of discipline in Central Para-Military
\nForces is of the highest necessity. The year 1993-94 was one
\nwhere insurgency had yet to be stamped out fully in the State of
\nPunjab, though it had considerably subsided. It was at its peak
\nin the State of Jammu & Kashmir. The battalion of the petitioner
\nwas in the State of Jammu & Kashmir. The petitioner could not
\nbe granted and indeed could not claim right to indefinite leave.\n<\/p>\n
WP(C) 3953\/1997                                         Page 8 of 9<\/span><\/p>\n
 Assuming his mother was unwell, but it cannot be ignored that
\n60 days\u201f leave had been sanctioned from 16.12.1993 to
\n13.2.1994, petitioner could not be a judge in his own cause and
\nleave the battalion on his own.\n<\/p>\n
17.          We find no merit in the writ petition and hence
\ndismiss the same.\n<\/p>\n
18.          No costs.\n<\/p>\n
                                  PRADEEP NANDRAJOG, J.\n<\/p>\n
                                  SUNIL GAUR, J.\n<\/p>\n
SEPTEMBER 02, 2011
\ndk<\/p>\n
WP(C) 3953\/1997                                     Page 9 of 9<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Pitambar Kabira vs Union Of India & Anr. on 2 September, 2011 Author: Pradeep Nandrajog $~5 * 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: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-250935","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nPitambar Kabira vs Union Of India & Anr. on 2 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/pitambar-kabira-vs-union-of-india-anr-on-2-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pitambar Kabira vs Union Of India & Anr. on 2 September, 2011 - 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