Devinder Gupta, J.
(1) The Petitioner has sought the quashing of the impound order, annexure P-6 dated 9.7.1994, dismissing him from service.
(2) Petitioner was enrolled in Border Security Force as Constable on 5.9.1989. After completing the basic training, on 18.6.1990 he was posted at 209 Bn., Border Security Force. He went on casual leave with effect from 29.10.1993 to 18.11.1993 and overstayed leave. It is respondents case that despite notices the petitioner failed to re-join his duty. Though a telegram was sent by him that he was seriously ill, neither any medical documents were submitted, nor petitioner reported to the unit. The following show cause notice was served upon the petitioner on 15.4.1994:
'WHERE AS you have been overstaying without leave w.e.f. 24th Nov. 1993 I am of the opinion that because of this overstay without leave of such a long period, your further retention in service is undesirable. I, thereforee, tentatively propose to terminate your service by way of dismissal.
Whereas, you have anything to urge in your defense against the proposed action, you may do so before 5th May 1994. In case no reply is received by that date, it shall be presumed that you have no defense to put forward against the proposed action and ex parte decision shall be taken in this regard.
(3) After the aforementioned notice was served upon the petitioner two letters dated 25.4.1994 and 22.5.1994 were sent by the petitioner saying that he was undergoing treatment at Civil Hospital and was recovering and will resume duty on 25.5.1994. Petitioner did not join duty on 25.5.1994. Again, the petitioner was asked to join duty . When no intimation was received from the petitioner the following order was passed on 9.7.1994 by the Commandant of 109 Bn. Border Security Force:
'WHEREAS,I have gone through the case of overstay from leave in respect of No. 89622978 Constable Ajaib Singh of the unit. He was given an opportunity to show cause vide this office letter No. Estt/137/OSL/109/94/4776 dated 15.4.94 and No. 578-79 dated 10.6.94 which he had availed of. I am satisfied that No. 89633978 Constable Ajaib Singh is overstaying without leave w.e.f. 19th Nov. 1993 without any reasonable cause and that his further retention in service is undesirable. I, thereforee, dismiss him from service with effect from 9-7-94 (FN) in terms of Section 11(2) of the Bsf Act, 1968 read with Rule 177 of Bsf Rules 1969.(2)Period of absence from 19.11.1993 to 8.7.94 (AN) be treated as `Dies Non'.(3)A sum of Rs. 492-98 (Rupees four hundred ninety two and ninety eight paise) only being the cost of deficient clothing items be recovered from the amount of the individual lying as Ud with unit cashier/CM and be deposited into Govt. treasury and balance amount if any be remitted to the individual concerned.(4)The individual is struck off the strength of this unit with effect from 9th July 94.
(4) The aforementioned order is under challenge on numerous grounds, including the one that the same is contrary to the provisions of the Border Security Force Act and the Rules framed there under and the same has been passed without complying with the procedure prescribed under the law.
(5) We have heard counsel for the parties and been taken through the record.
(6) A bare reading of the contents of the show cause notice and the impugned order would show that the misconduct of absence from duty without leave was one of the grounds on which the petitioner's service was sought to be dispensed with. In the show cause notice in addition it was also alleged that the petitioner's retention in service was undesirable. The impugned order has been passed by way of penalty for misconduct of absence from duty without leave or in other words overstaying the leave w.e.f. 19.11.1993 without any reasonable cause. In addition the impugned order also says that the further detention of the petitioner in service was felt undesirable since he had overstayed leave w.e.f. 19.11.1993 without any reasonable cause.
(7) In case the order of dismissal was passed by way of penalty of misconduct for absence from duty without leave or overstaying the leave without reasonable cause, the administrative power conferred under Section 11(2) could not have been exercised without complying with the requirement of Rule 22 of the Border Security Force Rules, which reads:
'22.Dismissal of removal of persons other than officers on account of mis-conduct :-
(1)WHENit is proposed to terminate the service of a person subject to the Act other than an officer, he shall be given an opportunity by the authority competent to dismiss or remove him, to show cause in the manner specified in sub-rule (2) against such action: Provided that this sub-rule shall not apply :-(a) Where the service is terminated on the ground of conduct which has led to his conviction by a criminal court or a Security Force Court; or (b) where the competent authority is satisfied that, for reasons to be recorded in writing, it is not expedient or reasonably practicable to give the person concerned an opportunity of showing cause.
(2)WHENafter considering the reports on the mis-conduct of the person concerned, the competent authority is satisfied that the trial of such a person is inexpedient or impracticable, but, is of the opinion that his further retention in the service is undesirable, it shall so inform him together with all reports adverse to him and he shall be called upon to submit, in writing, his Explanationn and defense.PROVIDED that the competent authority may withhold from disclosure any such report or portion thereof, if, in his opinion its disclosure is not in the public interest.
(3)THEcompetent authority after considering his Explanationn and defense if any may dismiss or remove him from service with or without pension: Provided that a Deputy Inspector General shall not dismiss or remove from service, a subordinate officer of and above the rank of a Subedar.
(4)All cases of dismiss or removal under this rule shall be reported to the Director-General.'
(8) SUB-RULE (2) of Rule 22 says that if upon consideration of the report on misconduct of the person concerned the Competent Authority is of the opinion that his further retention in service is undesirable and is satisfied that the trial of such a person is inexpedient or impracticable it shall so inform the person concerned together with all reports adverse to him and the person concerned shall then be called upon to submit, in writing, his Explanationn and defense.
(9) Admittedly no such satisfaction was recorded by the Competent authority that the trial of the petitioner was inexpedient or impracticable. Petitioner could have and ought to have been duly tried under the provisions of Section 48 of the Border Security Force Act by Security Court Martial for the offence alleged against him under Section 19-A of the Act. Since it was not done the petitioner's service could not have been dispensed with in exercise of powers under Section 11(2) merely on serving a show cause notice. The decision of a Division Bench of this Court of which one of us (Devinder Gupta, J.) was a party in Sees Ram v. Union of India, : 63(1996)DLT890 , is fully applicable to the facts and circumstances of the case. The impugned order of dismissal having been passed by way of penalty for misconduct of overstaying the leave without complying with the provisions of the Act and the Rules is liable to be quashed and set aside.
(10) Resultantly the writ petition is allowed. Impugned order is quashed and set aside. Respondents are directed to allow the petitioner to join the duty forthwith with all consequential benefits as regards his pay and continuity in service. Arrears of pay etc. will be duly worked out and paid to the petitioner with in a period of three months from the date of receipt of the writ order.