IN THE MATTER OF AN APPLICATION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA ---------- CIVIL WRIT JURISDICATION CASE No.9733 of 1997 ---------- DAYA NAND JHA S/O MAHA NAND JHA, R/O VILL. KATAIYA, PS- BENIPATTI DISTT- MADHUBANI— -------------------------PETITIONER Versus 1. THE UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF DEFENCE. 2. THE DIRECTOR GENERAL, B.S.F. NEW DELHI 3. DEPUTY DIRECTOR,ADMINISTRATION, HQ. D.C.,B.S.F.CRO COMPLEX LODHI ROAD, NEW DELHI-3 4. COMMANDANT 136 B.N.,BSF.----RESPONDENTS ----------- For the Petitioner: Mr. Basant Kumar Choudhary Senior Advocate, & Mr. S.K.Jha,Advocate For the Union of India: Mr. B.K.Pandey, CGC. ---------- P R E S E N T HON’BLE MR. JUSTICE AJAY KUMAR TRIPATHI ***** A.K.Tripathi,J. Heard learned counsel for the parties. Petitioner was a constable appointed under the Boarder Security Force. At the relevant time he was posted in the State of Jammu & Kashmir. He was granted 60 days earned leave by his Commandant from 13.6.1994 to 14.8.1994. It is his case that he was afflicted by Jaundice and sought extension of the said leave by another 42 days i.e. 16.8.1994 to 26.9.1994. His prayer of extension of leave too was granted but even after expiry of this period of leave the petitioner did not report for almost 214 days. It is that prolonged absence from duty without authorization which compelled the authority to initiate a Court of Enquiry against him and on the finding of the said Court of Enquiry and in absence of the petitioner’s effort to put up any defence or explanation the competent authority by virtue of annexure-5 decided to dismiss - 2 - him from service on the ground that his unauthorized absence without reasonable cause had made his retention in the force undesirable. He came to be dismissed with effect from 28.4.1995. Petitioner has challenged the said order including the order of rejection of his appeal in the present writ application. He submits that there were cogent and valid reasons for his absence. Petitioner had served the organization for a while and looking at his past service and young age the authority ought to have taken more lenient view in the matter. The charge leveled against the petitioner was only unauthorized absence and he could have been let off by some kind of punishment which would have been deterrent rather than imposing the ultimate punishment of dismissal. The stand of the respondents which emerges from the counter affidavit is that the respondents had allowed the petitioner 60 days of earned leave. Since he reported about his illness, before the expiry of that 60 days his leave was extended by another 42 days. But thereafter there was neither any application nor any response to the request or the direction issued to him by registered post as well as on information given to the local police on this issue. When the Court of Enquiry was held he was further directed to come and respond with regard to his defence but the petitioner neither submitted any reply nor any medical document in support of his absence. The findings being what they - 3 - are the respondents came to a considered opinion that the absence of the petitioner was not because of the unavoidable reason but due to his deliberate intent not to report to the unit after expiry of the leave period. The petitioner does not have the liberty and the benefit of absence of such kind specially keeping in view that he belongs to a disciplined force and he was deployed in a sensitive State to defend the nation. The Court would have taken sympathetic view of the matter provided the petitioner had put up some kind of defence before the Court of Enquiry or before the superior authority on this count. Absence of the same coupled with the fact that the petitioner has remained out of the force for almost 15 years now, taking a lenient view would not be in the interest of the discipline of the force. Even his utility to the force is doubtful since his absence from duty for the last 15 years would have surely taken its toll on his fitness and preparedness for the responsibility which is required amongst the personnel of the force. No purpose would be served by interfering with the order of punishment and asking the authority to impose any punishment like compulsory retirement since the petitioner had put in only five years of service. In the totality of the facts the Court is of the considered opinion that the petitioner has also contributed to his present fate and in absence of any legal infirmity having been pointed out in the Court of Enquiry and the decision, no - 4 - interference is warranted with the order of punishment. The Court however records that since the dismissal of the petitioner was on the ground of absence and it did not relate to any moral turpitude or for any serious dereliction of duty any effort by him to gain employment in another organization would be required to be seen from this angle and his dismissal from force on that count would be viewed in that light. This writ application is dismissed but without costs. Patna High Court, Patna Dated the 19th August,2010 NAFR/RPS/Sr.Secy. (Ajay Kumar Tripathi, J.)