Heard Sri Tarkeshwar Yadav, learned counsel for the petitioner.
The instant writ petition is filed with the following prayers:
a). call for the records of the case and to issue a writ order or direction in the nature of certiorari quashing the order dated 08.09.1997 passed by the opposite party no.1 marked as "Annexure no.1" to the writ petition served to the petitioner in village Surahiyan, Post Office Mohammadabad, District Ghazipur.
b) Issue writ, order or direction in the mandamus commanding the opposite parties not to give effect the impugned order and the petitioner may be reinstated in service.
c) issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper on the facts and circumstances of the case.
d) award costs of this petition to the petitioner from the contesting respondents.
The petitioner has filed the writ petition challenging the order of termination dated 08.09.1997.
The brief facts of the case are that the petitioner initially joined at Ramgarh, State of Rajsthan on the post of 'cook' attached with the Border Commandant, 46 BN B.S.F, Rampur (Fazilka) District Firozabad, Punjab. The petitioner was transferred from Ramgarh to Srinagar (State of Jammu & Kashmir). The petitioner claims that he has proceeded on sanction leave with effect from 08.03.1997 for a period of 20 days which expired on 28.03.1997. The claim of the petitioner is that during the period of sanctioned leave, he suffered from jaundice at his native town, District Ghazipur, U.P. The petitioner states that he was advised to take complete bed rest and in fact, the petitioner was declared fit in the month of October, 1997 (as stated in paragraph 6 of the writ petition).
On account of absence of the petitioner, the respondent no.1 has issued a show cause notice which was in the form of a letter no.2062/Eatt/46/97/7060 dated 3rd August, 1997.
No reply was filed by the petitioner to the show cause notice hence having no way the respondent no.1 has passed an order of termination on 08.09.1997. The petitioner, therefore, dismissed from service under Rule 177 of BSF Rules 1989 on account of his unauthorised absence between the period with effect from 29th March, 1997 to 8th September, 1997. The petitioner was treated as a 'Dies Non'.
The claim of the petitioner is that since the petitioner suddenly suffered the ailment during the period of his sanctioned leave, he could not inform about the said ailment to the respondents authorities and the petitioner came to know about the order of dismissal dated 8th September, 1997 only in the first week of October, 1997 when the order of dismissal was served upon him at his native place namely village Suraihiya, Post Office Mohammadabad, District Ghazipur.
The claim of the petitioner is that since the impugned order passed by the respondent no.2, is served upon the petitioner at his native place at Ghazipur, U.P., therefore, the part of cause of action arises in the State of U.P., hence the writ petition is filed before this Court.
In paragraph 9 of the writ petition, the petitioner has stated that he had already represented before the respondent no.2 by means of a representation dated 8th November, 1997 which the learned counsel for the petitioner claim is not disposed of so far.
On the other hand, learned counsel representing the respondents authority Sri Nagendra Kumar Pandey has raised preliminary objection about the maintainability of the instant writ petition as according to the respondents no cause of action arisen in the State of U.P. and further that merely the service of the order of dismissal do not entitle the petitioner to challenge the same before this Court.
Learned counsel for the respondents has also submitted that the impugned order passed by the respondent no.1 is well speaking order which clearly records the reasonings and reasons for dismissal of the petitioner.
Having heard the learned counsel for the parties and perused the impugned order dated 08.09.1997. I am of the opinion that the conduct of the petitioner clearly disentitled him to be a part of the military force namely Border Security Force. The fact clearly indicates that the petitioner was remained absent for about 6 months and at no point of time, the petitioner ever informed the respondents authorities about his ailment or requested for extension of leave. The order impugned clearly indicates that a show cause notice was issued on 3rd August, 1997 informing the petitioner to join the service or to submit his reply, which was not complied with.
It is further relevant to mention here that at the time of filing of the present writ petition, no interim order was passed by this court, therefore also the writ petition deserves to be dismissed as admittedly the petitioner is without work since March, 1997 as the petitioner has not performed any work for the respondents since March, 1997.
In view of the aforesaid and without going into the controversy about the maintainability of the instant writ petition, in my opinion, no case is made out to interfere in the matter and the order impugned passed by the respondent no.1 is well and reasoned order, which needs no interference under Article 226 of the Constitution of India.
The writ petition is dismissed.
Order Date :- 26.2.2019 A.Kr.*