*THE HON’BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION No. 5102 OF 2008 % 17-03-2008 # Const. C. Mohan …Petitioner and $ Union of India, through its Secretary, Ministry of Home Affairs, North Block, New Delhi & others …Respondents ! COUNSEL FOR PETITIONER : Sri Balaji Medamalli ^ COUNSEL FOR RESPONDENTS: Additional Standing Counsel for Central Government < Gist: > Head Note: ? CITATIONS: THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION No. 5102 OF 2008 Dt: 17th March 2008 Between: Const. C. Mohan …Petitioner and Union of India, through its Secretary, Ministry of Home Affairs, North Block, New Delhi & others …Respondents THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION No. 5102 OF 2008 O R D E R: The petitioner joined the Border Security Force as a Constable, in or about the year 1988. After completion of the training, he was deployed on the Indo-Pak Border at Komalpur in the year 1990. He served at various places, and by the year 2002, he was posted at Kutch/Bhuj on the Indo-Pak Border. In September 2002, the petitioner came to his native place, Sree Kalahasti, on long leave. He did not report to duties, thereafter, on the ground that he suffered ill-health. In the year 2007, he made representation to the respondents, to permit him to join duty, stating that he regained health. When he was not taken into service, the petitioner got notices issued, through an Advocate, and thereafter, filed Writ Petition (C) No.9316 of 2007, in the High Court of Delhi. The writ petition was dismissed, through order dated 14.12.2007, on the ground that the High Court did not have the territorial jurisdiction. Hence, this writ petition. It is pleaded that the petitioner could not report to duty, on the completion of the period of leave due to ill-health, and as soon as he regained health, he made his attempts to join duty. It is also his case that the respondents did not follow the prescribed procedure, while dismissing him, from service. Sri Balaji Medamalli, learned counsel for the petitioner, submits that the absence of the petitioner was not intentional and that the ill- health was so acute, that he was not able to understand the scope of communication received by him, including the show-cause notice dated 20.2.2003. He submits that the procedure prescribed under Section 11 and other provisions of the Border Security Force Act (for short “the Act”) and the Rules made thereunder, was not followed. According to the learned counsel, there was a serious default, on the part of the respondents, in not attempting to secure the presence of the petitioner, by invoking the procedure of the relevant provisions, through the Civilian Authorities. Learned Additional Standing Counsel for the Central Government, on the other hand, submits that the petitioner has been dismissed from service, on proven misconduct, and even the undisputed facts are sufficient to sustain the order of dismissal. The petitioner was sanctioned leave up to 18.10.2002, and he came from Bhuj in Gujarath, to his native place, Sree Kalahasti. On noticing that the petitioner did not return to duty, on expiry of leave, the Commandant of 90th Battalion, BSF, the 3rd respondent, addressed a letter dated 24.10.2002, requiring the petitioner to join duty, forthwith. It was also pointed out that failure to report to duty would entail in strict disciplinary action. This was followed by another similar notice, dated 10.12.2002. Thereafter, in a show-cause notice, dated 20.2.2003, the 3rd respondent pointed out that proceedings of Court of Enquiry, under Section 62 of the Act, were initiated, and it was declared that the absence of the petitioner from 18.10.2002 was illegal. In exercise of the powers under sub-section (2) of Section 11 of the Act, read with Rule 117 of the Rules, the petitioner was directed to explain as to why he shall not be dismissed from service. Even to this, did not evoke any response from the petitioner. He is not able to state, as to whether he was served with any order of dismissal, or whether he verified from the 3rd respondent, about the same. It was only in the year 2007, that he got two letters issued by an Advocate, by name Col. K. Digamber Singh. A perusal of the letters, dated 10.7.2007 and 20.7.2007, addressed by the said Advocate, discloses that he still felt that he is part of the Force, from which he retired. The introductory portion of the letter dated 20.7.2007, proceeds on these lines: “Dear Director General, I am writing this DO letter in connection with the rejoining of Unit to perform duties by Const C-Mohan of 90 Bn BSF. The individual had been suffering from mental disorder since 2002 and he was absenting unintentionally from duty due to his sickness and constant treatment. He was also sent a letter to rejoin his duties vide letter No.Estt/AWL/90 Bn/2002/14022, dated 04/25 October 2002 addressed to No.89200213 Const. C. Mohan by the Unit (90 Bn BSF). I wrote a personal letter to the Comdt of the Unit to allow the individual to rejoin the duty, but unfortunately he did not relent and told the constable to go to court and obtain a relief or orders to allow him to rejoin and that he would not permit him to join the duties. I fail to understand as to how a Comdt can behave in such a irrational manner when Govt. is starving hard to reduce the number of litigations concerning forces personnel, herein is an example to delay all such attempts and provoking a person to go to Court as a litigant.” In his letter, dated 10.7.2007, the learned Advocate made the following observation: “The individual has further reiterated and promised that he would not repeat this kind of mistakes in future and would dedicate himself with full devotion, loyalty in keeping up the flag high of the force, which he proudly belongs to. In view of the foregoing facts and circumstances I am thus directing him to report to you along with original medical documents. Please allow him to rejoin duty and regularize the absence in accordance with law so that a poor soldier gets proper relief and serve the force with pride and honour.” A notice that emanates from an Advocate is supposed to deal with the relevant facts and provisions of law, governing the same. Personal recommendations have no role to play in such matters. By their very nature, DO letters are a form of communication among the officials in an organisation. One hardly comes across a case of DO letter being addressed by an Advocate to an authority, from whom he seeks redressal for his client. That, however, is a different aspect. Section 19 of the Act mandates that absence of the member of the Force, without leave or overstay, beyond the leave granted to him, would amount to commission of offence. Punishments are provided for under Chapter IV of the Act. Chapter V prescribes the procedure for arrest of the persons accused of offences, as well as the one to be followed before trial. Chapter VI contains the procedure followed by Security Force Courts. The petitioner does not dispute that he absented for five years, without any leave. He did not respond to the notices issued by the 3rd respondent, requiring him to report to duty. In accordance with the procedure, the Security Force Court held the petitioner guilty, of unauthorized absence. That was followed by a show-cause notice, dated 20.2.2003, issued by the 3rd respondent. Even to this, the petitioner did not send any reply. Therefore, the 3rd respondent was left with no alternative, except to dismiss the petitioner from service. It has been strongly urged that the 3rd respondent did not follow the procedure prescribed under Chapter V, to secure the presence of the petitioner, in the disciplinary proceedings. In this regard, it needs to be observed that a person, who remained absent and did not respond to the notices, cannot compel the authorities to arrest him, or to secure his presence, as provided for under Section 61 of the Act. Further, though the various provisions of Chapter V enable the authorities to secure a deserter, by taking the aid of Civilian Authorities, much would depend upon the nature of the allegations against the concerned person. It is not difficult to note the distinction between the cases of unauthorized absence, and desertion. Similarly, much difference would exist between cases of a desertion simplicitor, on the one hand, and desertion by a person facing charges of espionage, etc. Simply because the respondents did not make any effort to secure the presence of the petitioner, it cannot be said that the proceedings to be initiated against him are vitiated in any manner. Further, the respondents did not have any idea as to the whereabouts of the petitioner, since the series of notices issued by them did not evoke any response from the petitioner. Under these circumstances, the petitioner cannot be granted any relief. The writ petition is, accordingly, dismissed. There shall be no order as to costs. _________________ 17th March 2008 Note: L.R. copies to be marked. (B/o) PAN