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Dharmendra Singh v. Union Of India Th.Mins.Of Home Affairs & Others - WRIT - A No. - 17493 of 1996 [2007] RD-AH 18307 (27 November 2007)

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Civil Misc. Writ Petition No. 17493 of 1996

Dharmendra Singh


The Union of India through Ministry of

Home Affairs New Delhi and others

Hon'ble V. K. Shukla, J.

Petitioner was selected as Constable in Border Security Force w.e.f. 27.6.1994. Petitioner was sent for training for ten months training alongwith other selected candidates. During continuance of his training on account of his sister's marriage, petitioner took leave and leave was sanctioned for the period of 10 days from 1.5.1995 to 11.5.1995 and thereafter petitioner was required to report himself on 11.5.1995. Petitioner claims that during his stay at home he was seriously ill and suffering from ulcerative colitis with unaffected hepatitis and was confined to bed as such he could not report himself on 11.5.1995 on account of illness, and he was compelled to stay at his place upto 22.11.1995 and when his situation become normal he went to join , but was not permitted to join and thereafter his service has been discharged. Petitioner submits that application was moved supported by the medical certificate, but nothing was done.

Counter affidavit has been filed and it has been contended that petitioner has over stayed and in this background court of inquiry was got conducted and he was discharged , as his continuance was not justifiable. Apart from the same other pleadings are also on record.

After pleadings mentioned above, have been exchanged, present writ petition has been taken up for final hearing/disposal with the consent of the parties.

Sri V.P. Shukla, Advocate, learned counsel for the petitioner contended with vehemence that in the present case there were reasons for over staying and petitioner has furnished the said reason and till date said reasons has not been considered and petitioner has been discharged, as such order impugned is against the principle of natural justice, as such writ petition deserves to be dismissed.

Sri S.K. Rai, Advocate, learned counsel for the respondents on the other hand contended that petitioner was probationer and as terms and conditions of service has been discharged and qua probationer no notice was required to be given, as petitioner was not likely to be become an efficient member of force.

After respective arguments have been advanced, undisputed factual position on which there is no dispute that petitioner was probationer and was on training at Banglore. Petitioner applied for leave and said leave was sanctioned for period of 10 days from 1.5.1995 to 11.5.1995 and thereafter petitioner was required to report himself on 11.5.1995, which was not admittedly done by the petitioner and this fact has also been admitted that no application whatsoever was also sent for extension of leave or informing the authority to his absence. Under the terms and conditions of the Border Security Force Act, 1968 when any person subject to this Act has been absent from duty without due authority for a period of thirty days, a court of inquiry has to be held. In the present case as absence period of petitioner was more than thirty days from duty without due authority, a court of inquiry was held and after making such inquiry Commandant of the Unit was to be informed so that record is made. Petitioner was probationer, in this background as he was probationer and as per terms and conditions of the appointment contained in part -2 of Border Security Force Rules, 1969 there was clear cut conditions provided that petitioner is liable to be discharged during the (First two years) of the service, if petitioner is not likely to become an efficient member of the Force. Probationer is always on test during probation period and employer has unfettered right during continuance of probation period to disengage the service of the probationer, if he is satisfied that he is not likely to become member an efficient member of the Force . In the present case by virtue of being probationer, petitioner could have been discharged as per terms and conditions of the service, once there was material before the authority concerned that he was not likely to become an efficient member of the Force. Order impugned is not a penalty rather it is termination simplicitor. The order of discharge in the present case is not at all passed by way of penalty for the misconduct of absence from the duty without leave. Such absence has been cause for passing of the order of discharge, but service of the petitioner has been discharged on the ground that his conduct has rendered that in future he was not likely to become efficient member of the force.

Reliance has been placed by petitioner on judgment in the case of L/NK Musafir Yadav Versus Comamdant, 47 Bn., C.R.P.F., Gandhinagar (Gujarat) and another reported in 2001(4) A.W.C. 2976. Said case was not at all case of probationer, rather regular disciplinary proceeding had been undertaken against him under Rule 22 of 1969 Rules as such ratio of aforesaid case is not at all applicable and attracted in the present case. In the case of Shri Bhagwan Lal Arya Versus Commissioner of Police, Delhi and other 2004 SCC (L &S) 661, keeping in view of the provision as Delhi Police (Punishment and Appeal ) Rules,1980, said view has been taken and therein also petitioner was not probationer and in regular departmental proceeding, said punishment has been awarded. Both the judgments are not at all in relation to the probationer. Case of probationers stand on all together different footing. In the present case petitioner being probationer, action taken is in consonance with the terms and conditions of service, as such no relief can be granted.

Consequently, writ petition is dismissed.

Dt. 27.11.2007



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