(Prayer: Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus to call for the records relating to the order passed by the 3rd respondent dated 25.08.2006 in his order No.122.Esst/20(3)/2006/0392-591 and quash the same and to direct the respondents to take the petitioner into the strength of BSF as Constable with all monetary benefits)
1. This writ petition has been filed challenging the impugned order passed by the 3rd respondent, dated 25.08.2006 in his order No.122.Esst/20(3)/2006/0392-591 and seeking a direction to the respondents to take the petitioner into the strength of BSF as Constable with all monetary benefits.
2. The petitioner joined Border Security Force as Constable on 08.12.2002 and was given training at Rajasthan and posted at West Bengal. He was sanctioned Earned Leave for 60 days from 04.01.2006 to 04.03.2006. But he failed to join duty on the expiry of leave period. On request, his leave was extended by the third respondent upto 04.05.2006. Thereafter also, the writ petitioner did not join the duty. Pursuant to which, a show-cause notice was issued by the 3rd respondent on 20.05.2006 through the Superintendent of Police, Theni District. Thereafter, the petitioner was dismissed from service on 25.08.2006. The petitioner would state that the charge memo was in Hindi, hence, he could not understand the contents, as he is unable to read Hindi. The petitioner has filed the above writ petition for quashing the impugned order of punishment of dismissal from service.
3. The respondents have filed a counter affidavit stating that the petitioner was granted leave upto 04.03.2006 and thereafter, he over stayed from 05.03.2006. The respondents have issued letters to report back to duty at Bn. Hqrs. Raninagar vide 122 Bn BSF L/No.2680, dated 09.03.2006, 2966, dated 20.03.2006 and 3250 and dated 29.03.2006 respectively. Instead of reporting back to duty, the petitioner had approached the third respondent with letters, dated March 2009, and 20.04.2006 to accept his resignation from service. He was informed that the resignation from service cannot be accepted and asked him to report back to duty vide letter, dated 21.04.2006, and 08.06.2006. The petitioner neither reported back to duty nor sent any intimation regarding the over stayed. Thereafter, the respondents following the legal formalities issued Apprehension Roll dated 28.04.2006 and show cause notice, dated 20.05.2006, and serving the same through Superintendent of Police, Theni District, vide Letter No.7187-88, dated 29.06.2006. Thereafter, the petitioner was dismissed from service with effect from 25.08.2006 under Rule 22 of BSF Act and Rules r/w Section 11(2) vide 122 Bn BSF order No.10392-591 dated 25/26 August 2006.
4. A perusal of the impugned order reveals that if the petitioner is aggrieved by the order of dismissal from service, he was given an option of filing an appeal to the Inspector General (Frontier) within three months from the date of receipt of the impugned order.
5. The learned counsel for the petitioner would state that the notices received by him were in Hindi and he is unable to comprehend the contents of the same. There is no explanation as to the submission of resignation letter and also non-filing of the appeal to the Inspector General as specified in the impugned order.
6. The respondents had contended that the petitioner was given ample opportunity to report back to duty and as per Section 62 of the BSF Act and Rules, Court of enquiry was conducted and Letter of Apprehension was also given. Subsequently, a show cause notice, dated 20.05.2006, was sent to the petitioner along with all adverse report/documents etc,. All the documents were in English except the Court of enquiry proceedings. Therefore, the Court of enquiry proceedings alone was in Hindi, which the petitioner ought to have got translated in his own language or in English. Therefore, the plea that the notices were sent in Hindi is not tenable for non-exhaustion of appeal remedy.
7. The counter statement would further reveal that instead of reporting back to duty, the petitioner would insist to accept his resignation. Therefore, the allegations are not sustainable.
8. A perusal of the letter written by the petitioner, dated 20.04.2006, would state that he could not rejoin duty and requested the respondents to leave him and not to search him. He further insist that the respondents should not search him, if they persist in their demands to report back to duty, he will kill himself.
9. Heard both sides.
10. It is seen that the writ petitioner has voluntary deserted from duty and unwilling to join duty. The contention that the documents were in Hindi and therefore, he could not defend himself effectively is also incorrect and unsustainable. Furthermore, the writ petitioner failed to respond to all the communication sent by the respondents and finally filing of appeal provided under BSF Act. Having failed to avail the opportunities, now the petitioner cannot complain of any illegality.
11. In the result, the writ petition is dismissed. There is no order as to costs. The writ petitioner is at liberty to pursue his remedy in the manner known to law, if he chooses to do so.