The Delhi High Court has set aside the dismissal of a Border Security Force (BSF) constable who was removed from service for overstaying sanctioned leave, holding that the action was taken in gross violation of principles of natural justice and mandatory provisions of the BSF Rules.
A Division Bench comprising Justice C. Hari Shankar and Justice Om Prakash Shukla allowed the writ petition filed by BSF constable Sandeep Shukla, who was dismissed from service on 22 November 2022 after being declared a deserter due to unauthorised absence.
The petitioner, appointed as a Constable (GD) in 2012, had been granted leave from 18 July to 1 August 2022. He claimed that during this period he was diagnosed with typhoid and was advised prolonged bed rest, supported by medical certificates attested by the Chief Medical Officer, Gorakhpur. Despite this, the BSF initiated disciplinary action and ultimately dismissed him from service, citing impracticability of trial under the BSF Act.
The Court noted that although a show cause notice dated 7 October 2022 was issued proposing dismissal, it was served on the petitioner only on 17 December 2022, nearly a month after the dismissal order had already been passed. The Bench held that the petitioner was neither served notice prior to dismissal nor afforded any meaningful opportunity to defend himself, rendering the action arbitrary and illegal.
Emphasising that dismissal on grounds of misconduct is stigmatic in nature, the Court held that strict compliance with Rule 22 of the BSF Rules, 1969, which mandates supply of adverse material and an opportunity to respond, was compulsory. It further found no material on record to show that the petitioner was allowed to participate in the Court of Inquiry proceedings, as required under Rule 173 of the Rules.
Rejecting the BSF’s reliance on the constable’s past instances of indiscipline, the Court clarified that prior misconduct was neither the basis of the impugned dismissal nor referred to in the dismissal order, and therefore could not be relied upon retrospectively.
Accordingly, the High Court quashed the dismissal order and directed that the petitioner be reinstated with continuity of service, seniority and pay fixation. However, applying the principle of “no work, no pay”, the Court denied back wages for the period during which the petitioner did not serve.
Appearances:
Petitioner Through: Dr. Amit George, Mr. Kartickay Mathur, Mr. K.K. Shukla, Mr. Adhishwar Suri, Mr. Dushyant Kishan Kaul, Ms. Ibansara Syiemlieh, Mr. Bhrigu A. Pamidighantam, Ms. Rupam Jha, Mr. Vaibhav Gandhi and Mr. Kartikay Puneesh, Advocates
Respondents Through : Mr. Vivek Sharma, SPC
