Calcutta High Court Upholds BSF Constable's Dismissal For Repeated Unauthorised Absence, Says Authority Can Act Against “Black Sheep”

The Calcutta High Court has upheld the dismissal of a Border Security Force (BSF) constable for repeatedly overstaying leave and remaining absent without authorization, observing that a disciplined force cannot tolerate members who “drop in and absent” themselves at will.Justice Amrita Sinha dismissed the writ petition filed by Sudip Kumar Pal challenging his dismissal from service and the appellate order affirming it.In strong remarks, the Court held that the authorities were justified in removing an indisciplined member and acted in accordance with the Border Security Force Act and Rules.“The authority acted in accordance with the Act and the corresponding Rules to get rid of the black sheep from the Force.”BackgroundThe petitioner, a BSF constable, was granted leave from October 19, 2022 to October 28, 2022 and was required to resume duty on October 29, 2022. He failed to report back.According to the respondents, three separate letters were sent directing him to join duty and warning that disciplinary action would follow. He neither responded nor communicated any reason for overstaying leave.A Court of Inquiry was initiated under the BSF Act, following which a show-cause notice proposing dismissal from service was issued on December 27, 2022.Thereafter, another constable was deputed to visit the petitioner's residence. On February 2, 2023, the petitioner reportedly handed over a handwritten letter stating that he would rejoin on February 4, 2023. However, the authorities stated that he failed to report even on that date.He was dismissed from service with effect from February 4, 2023. His departmental appeal was rejected, leading to the present writ petition.The petitioner argued that the appellate authority lacked jurisdiction and that principles of natural justice were violated as relevant documents, including the Court of Inquiry proceedings, were not supplied.He also contended that he had attempted to rejoin duty on February 4, 2023 but was not permitted to do so.Relying on Krushnakant B. Parmar v. Union of India (2012) 3 SCC 178, it was argued that unauthorized absence amounts to misconduct only if the authority records a finding that the absence was wilful.Court's FindingsRejecting the challenge, the Court noted that multiple opportunities had been given to the petitioner to return to duty, but he failed to respond.The Court found no evidence supporting his claim that he had actually reported for duty on February 4, 2023 and was turned away.“There is no proof in support of such averment of the petitioner.”The Court emphasized that members of armed and border forces are required to maintain strict discipline and cannot absent themselves casually.“A member of the Force cannot be expected to drop in and absent himself as per his own sweet will.”The Court also took note of the petitioner's past service record, which showed repeated instances of overstaying leave. On at least five occasions, his overstayed leave had been regularized. He had also faced punishments including fines and rigorous imprisonment in Force custody.One punishment was for remaining absent for 105 days, and another for overstaying leave for 108 days.The Bench observed that such conduct demonstrated lack of commitment to duty and burdened the Force: “Such a member is a burden to the Force.”The Court distinguished the Supreme Court's ruling in Krushnakant B. Parmar, observing that in that case the employee claimed he had been prevented from marking attendance and performing duty.In the present case, however, the petitioner was never prevented from joining duty and had instead deliberately absented himself.The Court also rejected the plea of non-supply of documents, noting that the petitioner had never sought any documents or raised any complaint before the authorities at the relevant time.Finding no malice, no jurisdictional error, and no breach of natural justice, the Court dismissed the writ petition.Case Title: Sudip Kumar Pal v. Union of India & Ors.Case No.: WPA No. 28953 of 2023Click here to read order

Calcutta High Court Upholds BSF Constable's Dismissal For Repeated Unauthorised Absence, Says Authority Can Act Against “Black Sheep”

Srinjoy Das

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