Mr. Jitendra Kumar Singh, Adv v. UNION OF INDIA AND ORS

Judgment

1. Through the medium of instant petition, the petitioner has called in question the dismissal order dated 14.08.2012 passed by the respondents on grounds of absence without leave, as also the order dated 22.08.2015 rejecting the statutory appeal. The petitioner further seeks a direction to the respondents to reinstate him in service with all consequential benefits, by treating the period of absence and dismissal as having been spent on duty.

2. The factual backdrop leading to the filing of this petition is that Signature Not Verified Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 5143/2016 Page 1 of 15 the petitioner was enrolled in Border Security Force1 as Constable (GD) on 23.06.2008. Upon completion of Basic Recruit Training at RTC, Bhondsi under 25 Battalion, BSF, he was posted to 7th Battalion, BSF, where he joined on 22.04.2010.

3. Thereafter, the petitioner was detailed for participation in the DG’s Farewell Parade/ BSF Raising Day Parade and was accordingly sent to the 25th Battalion, BSF, along with a certificate of medical fitness issued by the Medical Officer of the unit, vide Movement Order dated 15.09.2011.

4. The genesis of the present controversy arises from the petitioner’s absence without leave from the 25th Battalion, BSF, with

effect from 29.12.2011. In this regard, a missing report/ First Information Report was lodged by the said Unit at Police Station Chhawla, New Delhi.

5. Pursuant thereto, it is the specific case of the petitioner that due to the continued rigour of parade practise for the forthcoming Republic Day function, he suffered mental exhaustion and was unable to sleep at night. It is stated that he was granted a day’s rest on

28.12.2011. However, on 29.12.2011, he allegedly left the Khel Gaon Parade Camp, New Delhi, and somehow reached Lucknow, where he was located by his family members, who commenced his medical treatment at the Institute of Human Behaviour and Allied Sciences Signature Not Verified 1 Hereinafter “BSF” Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 5143/2016 Page 2 of 15 (IHBAS), Dilshad Garden, Delhi.

6. The records indicate that the respondents issued a registered letter dated 02.01.2012 to the petitioner at his residential address as per the service records maintained by the parent unit, i.e. 7th Battalion, BSF, on 21.02.2012.

7. Pursuant to such sustained efforts, the petitioner reported back to the 7th Battalion, BSF, on 21.02.2012. However, he again absented himself the very next day, i.e. on 22.02.2012, after leaving his father at the unit location.

8. Accordingly, a further missing report/ First Information Report was lodged by the unit with Police Station Kotwali, Coochbehar (West Bengal) on 23.02.2012.

9. Upon receipt of information regarding the petitioner’s medical condition, as communicated by his father and the SHO, Police Station Badauth, District Baghpat, the petitioner was informed vide registered letters dated 11.04.2012 and 17.04.2012 to rejoin duty and continue his treatment at a BSF Hospital.

10. Meanwhile, a Court of Inquiry was convened vide order dated

09.02.2012 and concluded on 02.04.2012. The Court of Inquiry held the petitioner blameworthy for unauthorised absence recommended disciplinary action under the applicable provisions of the BSF Act & Rules. Based on the findings of the said Inquiry, an Signature Not Verified Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 5143/2016 Page 3 of 15 Apprehension Roll under Sections 60 and 61 of the BSF Act was issued to the Superintendent of Police, District Baghpat (U.P.), vide registered letter dated 30.04.2012, requesting that the petitioner be apprehended and handed over to the nearest BSF establishment. No response was received from the concerned police authorities.

11. In the absence of any response either from the petitioner or the police authorities, the respondents issued a Show Cause Notice dated

06.05.2012 along with a copy of the adverse report and the Court of Inquiry proceedings, directing the petitioner to respond within 30 days, failing which action for termination from service would be initiated.

12. The petitioner failed to respond to the aforesaid Show Cause Notice or to rejoin duty. While his father intimated that the petitioner was undergoing treatment and would rejoin after recovery, no formal request for leave was made, nor was any timeline provided regarding the expected duration of such treatment.

13. Thereafter, the petitioner was once again directed, vide letter dated 11.06.2012, to report to the BSF Hospital at R.K. Puram, New Delhi for continuation of his treatment. Even this direction went uncompiled with, as the petitioner neither reported to the hospital nor resumed the duty.

14. A second Show Cause Notice dated 03.07.2012 was dispatched to the petitioner at his recorded residential address. The petitioner did Signature Not Verified Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 5143/2016 Page 4 of 15 not furnish any response to the same nor reported back for duty.

15. Consequently, the respondents, having exhausted all efforts, proceeded to dismiss the petitioner from service with effect from

14.08.2012 on the ground of unauthorised absence without leave. The order of dismissal was sent by registered post to the petitioner’s last known address.

16. After a lapse of more that two years, the petitioner submitted a statutory representation dated 14.11.2014 seeking reinstatement. The said representation, however, was rejected by the Deputy Inspector General, Sector Headquarters, BSF, Coochbehar, vide order dated

02.02.2015, on the ground of being time-barred and devoid of merit.

17. Subsequently, the petitioner preferred an appeal dated

09.06.2015 addressed to the Inspector General, BSF, Guwahati, once again seeking reinstatement on the plea that he was not served with the dismissal order earlier.

18. The said appeal was also rejected by the Appellate Authority vide order dated 22.08.2015.

19. Thereafter, the petitioner filed a revision petition against the rejection of his appeal, but no response was received.

20. Aggrieved by the orders of dismissal and rejection of his appeal, the petitioner has approached this Court by way of the present Signature Not Verified Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 5143/2016 Page 5 of 15 writ petition seeking the reliefs as set out hereinabove.

21. During hearing of the present petition following submissions were advanced by the counsel for the petitioner, Mr. Jitendra Kumar Singh: i. The petitioner, a Constable in the BSF since 2008, was a disciplined and meritorious officer who suffered serious mental breakdown due to continuous physical and mental exertion while preparing for ceremonial parades in late 2011. It is submitted that owning to his deteriorating mental health, the petitioner left his post and was later found and treated at IHBAS, Delhi and other medical institutions. His condition was regularly communicated by his family to the BSF authorities, including the local police station, which confirmed his mental illness. ii. It is contended that the petitioner neither received the show- cause notice nor the dismissal order dated 14.08.2012, which was ultimately received only on 15.04.2015 pursuant to a request made by the petitioner in March 2015. On receipt thereof, the petitioner promptly filed an appeal, which was mechanically rejected by the appellate authority without due consideration of the material placed on record. A revision petition was also submitted but no response was received. iii. Learned counsel emphasises that the petitioner’s absence from duty was not wilful or intentional, but a result of bona fide Signature Not Verified Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 5143/2016 Page 6 of 15 medical circumstances which rendered him incapable of performing duties. It is submitted that the impugned order of dismissal is grossly disproportionate and fails to reflect any humanitarian or sympathetic consideration, particularly in view of the petitioner’s family responsibilities and recovery. iv. Reliance is placed on the judgments of the Hon’ble Supreme Court in Krushnakant B. Parmar v. Union of India2, Tapash Kumar Paul v. BSNL3, and Bhagwan Lal Arya v. Commissioner of Police4, to contend that absence from duty occasioned by genuine medical incapacity, particularly due to mental illness, cannot be construed as willful or deliberate so as to warrant the extreme penalty of dismissal from service. In Krushnakant B. Parmar (supra), the Hon’ble Court held that where absence is the result of compelling circumstances, such as illness, it cannot be termed misconduct unless intent or wilfulness is established. Similarly, in Bhagwan Lal Arya (supra), the Hon’ble Court held that when absence is supported by medical evidence, imposition a disproportionate penalty like dismissal is arbitrary and unsustainable. In Tapash Kumar Paul (supra), reinstatement with back wages was directed where the employee’s absence was not intentional and he was not gainfully employed during the period of removal.