IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE EIGHTEENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT APPEAL NO : 72 of 2009 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 01/07/2008 in WP NO : 16402 OF 2008 on the file of the High Court.) Between: P.Pandu Ranga Swamy, S/o. P.Laxminarayana, R/o. D.No.189-EWSH, New Santhoshnagar Colony, Post Office Saidabad, Hyderabad. ..... APPELLANT AND 1 The Governemnt of India, Rep by its Ministry of Home Affiars, Directorate of General Boarder Security Force, Block No.1, 5th Floor, CGO COMPLEX, Lodhi Road, New Delhi-110003 2 OFFG.Commandant 94 Battalion, Boarder Security Force, Roshan Bagh, Murshidabad District, West Bengal. .....RESPONDENTS Counsel for the Appellant: MR. B.VIJAYSEN REDDY Counsel for the Respondent No.: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) The Court made the following : THE HON'BLE MRS JUSTICE T.MEENA KUMARI A N D THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT APPEAL NO : 72 of 2009 J U D G M E N T : (Per the Hon’ble Smt. Justice T. Meena Kumari) The writ appeal is filed against the order dated 01-7-2008 passed by the learned single Judge in W.P.No.16402 of 2008, whereby the learned single Judge dismissed the writ petition holding that the grounds pleaded by the petitioner for his absence from duties from 13.12.2005 to 12.08.2006 as a Constable in Border Security Force (BSF) are hardly acceptable. Aggrieved by the same, the present writ appeal is filed. 2) The writ petition was filed questioning the proceedings dated 12.08.2006, wherein, the 2nd respondent struck off the petitioner from the strength of the unit treating his absence from duties from 13.12.2005 to 12.08.2006 as dies non and thereby dismissed the petitioner / appellant from service. 3) Case of the appellant is that he being the Constable in Border Security Force (BSF) was posted in Murshidabad District, applied for leave from 12.12.2005 to 31.12.2005 and proceeded to Hyderabad to take care of his mother, who fell ill. Thereafter, on persuasion of his mother, he forwarded a letter of resignation dated 28.12.2005, on which, the second respondent vide a letter dated 09.01.2006 intimated the appellant that his resignation could not be accepted and that he has to deposit an amount of Rs.19,900/- (Rupees Nineteen Thousands Nine Hundred only) towards cost of training imparted to him and also required him to report duty. Subsequently, the second respondent also issued a show cause notice, dated 08.03.2006, on receipt of which, the appellant deposited the amount of Rs.19,900/- (Rupees Nineteen Thousands Nine Hundred only) by way of a demand draft, but failed either to report to duty or to submit any explanation to the show cause notice and a further request was made by the appellant to accept his resignation on medical grounds. But, the said demand draft was returned by the second respondent and the appellant was further directed to attend the duty. Consequently, the second respondent vide his proceedings, dated 12.08.2006, struck off the appellant from the strength of the unit treating his absence from 13.12.2005 to 12.08.2006 as dies non and dismissed him from service. Questioning the same, the present writ petition is filed. 4) The main contention of the learned counsel for the appellant is that the appellant was forced to resign his job on the ground of his mother’s ill-health, but the learned single Judge having not accepted the contention raised by him, confirmed the action of the second respondent. 5) On instructions, Sri A.Rajashekar Reddy, learned Additional Solicitor General submitted that the ‘order of dismissal’ passed by the second respondent has been converted into that of the ‘order of removal’. 6) Having regard to the facts and circumstances of the case that in pursuance of show cause notice dated 08.03.2006 issued by the second respondent, an amount of Rs.19,900/- (Rs. Nineteen Thousand and Nine Hundred only) has already been deposited by the appellant and it is not a case of misappropriation or breach of trust, but only in the circumstances beyond his control, that too due to sickness of his mother, the appellant was forced to resign his job. The above circumstances do not warrant a severe punishment of dismissal and under those circumstances, we are of the opinion that the ‘order of dismissal’ passed by the second respondent vide proceedings dated 12.08.2006 can be modified to that of the ‘order of removal’ and the respondents are directed to pass a fresh order to the above effect within a period of three months from the date of receipt of a copy of this order. 7) With the above modification, the writ appeal is accordingly allowed. No costs. JUSTICE T.MEENA KUMARI JUSTICE C.V.NAGARJUNA REDDY 18-2-2009. ISL - SUR