Ramakant Pachauri vs Union Of India And Ors

[1] Petitioner has challenged the order dated 31st May, 2012 passed by the Commandant, Border Security Force by which he has been awarded the punishment of dismissal from service

[2] Brief facts are as under:

The petitioner joined the service of Border Security Force ('BSF' for short) on 10th January, 2004 as a Constable. In the year 2007, the petitioner was posted at Agartala. He complained of pain in the heels for which he was referred to and treated at G. B. Pant Hospital, Agartala. He was referred for further treatment to All India Institute of Medical Sciences(AIMS), New Delhi in the year 2009. According to the petitioner, at AIMS he was advised not to undertake hard work or to lift heavy objects. The petitioner returned to his Unit at Agartala on 20th January, 2010 where he was declared fit for duty by the Unit Medical Officer. The petitioner was thereupon posted at Maharanichera, Udaipur, District - Gomati which according to the petitioner, was in a hilly region and entailed heavy duty.

[3] The petitioner was granted Casual Leave for 15 days from 29th February, 2012 to 21st March, 2012. Upon expiry of the leave period, the petitioner failed to report for duty. He overstayed the leave period by 47 days without any intimation to the department. He rejoined the duty on 7th May, 2012. For such unauthorized absence from duty, he was summarily tried by the department under the Border Security Force Act. The competent authority imposed the punishment of dismissal from service by the impugned order. The petitioner initially challenged the said order by filing a Writ Petition before this Court No.388/2012. The petition was disposed of by an order dated 23rd February, 2016 relegating the petitioner to appeal remedy. The petitioner thereupon filed an appeal before the appellate authority. His appeal was dismissed by an order dated 1st June, 2016 whereupon this fresh petition has been filed in which the petitioner has challenged the order of dismissal as well as the appellate order.

[4] Appearing for the petitioner, learned counsel Mr. K Bhattacharjee submitted that the petitioner had sufficient cause for not reporting for duty. Though the doctors at AIMs had certified that the petitioner is not fit for heavy-duty, the departmental doctor declared him fit for all duties. The petitioner was posted at a hard station and was given heavy-duty work. The petitioner, therefore, remained absent. Though his leave was not sanctioned, nevertheless his absence was not without cause or justification. Counsel further submitted that the period of absence was not unduly long. The extreme punishment of dismissal from service, therefore, should not have been imposed. The disciplinary authority as well as the appellate authority failed to take into account this vital aspect of the matter. He submitted that the Commandant did not have authority to impose the punishment of dismissal from service.

[5] On the other hand, Mr. Biswanath Majumder, learned counsel for the BSF opposed the petition contending that the charge against the petitioner was proved. He was given full opportunity to defend himself. The petitioner was employed in a disciplined force. His absence from duty without leave cannot be overlooked. In support of his contentions, counsel relied on following decisions :

(i) Gouranga Chakraborty Vs. State of Tripura and Anr. reported in AIR 1989 SC 1321.

and

(ii) Union of India and Ors. Vs. Datta Linga Toshatwad, reported in (2005) 13 SCC 709.

[6] Facts on record are not seriously in dispute. It is not disputed that the petitioner who was granted 15 days Casual Leave did not report for duty upon completion of the leave period. It is also not in dispute that he overstayed the leave by 47 days. The petitioner was thus absent from duty and his absence was unauthorized. His defence that he was not fit to discharge the duty is not convincing. Firstly, the petitioner did not question the certificate of fitness issued by the Unit doctor. Secondly, during the summary trial, the petitioner did not lead any evidence of his incapability to discharge his duties. Lastly, after 47 days of overstay, the petitioner voluntarily reported for duty and continued to discharge the duties. Thus in clear terms, the petitioner remained absent from duty for 47 days without cause or justification. Only defences have been examined by the disciplinary authority as well as the appellate authority.

[7] Section 48 of the BSF Act prescribes various punishments which can be imposed on a member of the force upon completion of summary trial, one of them being dismissal from service. There is thus no lack of power on part of the Commandant imposing the said punishment.

[8] The petitioner was a member of the armed force. As a member of BSF his absence from duty without leave cannot be treated lightly. Despite this, in isolation, absence from duty for 47 days would perhaps have persuaded me to ask the department to reconsider the quantum of punishment. The question could be, should the petitioner be spared the extreme punishment of dismissal from service. However, the appellate authority has recorded that in the past on as many as four occasions the petitioner had been awarded convictions and different punishments. Thus, in a short span of about 8 years of service, the petitioner had invited as many as four previous convictions. His misdemeanours included unauthorized absence from duty, insubordination etc. Looking at his overall service record as well as the proved misconduct in the present case, I do not find this is a fit case where the department should be asked to reconsider the punishment.

In the result, no case for interference is made. Petition is dismissed. Pending application(s), if any, also stands disposed of.