ITBP Personnel’s Dismissal For Prolonged Medical Leave “Harsh”: Himachal Pradesh High Court Sets Aside Penalty Order

The High Court was hearing a writ petition challenging the rejection of the petitioner’s appeal by the ITBP’s Appellate Authority. The constable, who had served for more than 18 years, was dismissed for alleged desertion after his request for leave extension due to illness was ignored.

A Bench comprising Justice Sandeep Sharma, while deciding the matter, observed that the action of the authorities in dismissing personnel with an unblemished record of service, without holding a proper inquiry, was unjustified. The Court ruled that “since the petitioner had rendered more than 17 years of service, the penalty of dismissal, being wholly disproportionate to the alleged offence, is set aside, and the petitioner shall be treated as discharged from service upon completion of pensionable service.”

The petitioner was represented by Advocate Vipinder Roach, while Central Government Counsel V.B. Verma appeared for the respondent.

Background

The petitioner, a constable, joined the ITBP in 1988. In 2005, while on duty, he suffered serious injuries in an accident and later contracted tuberculosis, for which he was treated at a military hospital.

He was granted 30 days of medical leave, which he sought to extend due to continuing illness. However, despite his communication and a letter from a family member informing the ITBP of his hospitalisation, the request for extension was not processed.

Instead, the department issued repeated memorandums calling upon him to resume duty and, shortly thereafter, declared him a “deserter.” Without conducting any inquiry, he was dismissed from service in 2006. His appeal under the ITBP Rules, 1994, was rejected, prompting him to approach the High Court.

Earlier, in 2009, the Himachal Pradesh High Court had directed the ITBP to reconsider his case. However, the Appellate Authority once again dismissed his representation in 2016, leading to the present petition.

Court’s Observation

The Himachal Pradesh High Court, upon hearing the matter, observed that the disciplinary authorities had failed to appreciate that the petitioner’s illness was duly communicated before the issuance of the show cause notice and that the department had ignored the evidence available on record.

The Court noted that “the request for extension of leave was duly received by the respondents, but they failed to verify the illness or constitute an inquiry before declaring the petitioner a deserter.”

The Court remarked that once the petitioner was declared a deserter, subsequent notices asking him to rejoin duty were meaningless and demonstrated procedural inconsistency.

The Bench further observed that before taking action under the ITBP Rules, the respondents were required to conduct an inquiry into the circumstances of absence, especially when illness was cited. The failure to do so amounted to a violation of the principles of natural justice.

The Court also referred to the Supreme Court’s decision in Yasodhar Kamat v. Director General, Border Security Force (2021) and held that in cases involving long-serving personnel, dismissal for medical absence was excessive.

Quoting from that precedent, the Bench reiterated that dismissal should be substituted with discharge upon completion of pensionable service, ensuring the individual’s eligibility for pension but not back wages.

Conclusion

Allowing the petition, the High Court set aside the order of dismissal and directed that the petitioner be treated as discharged from service upon completion of pensionable service, without entitlement to back wages.

The Bench directed the ITBP to implement the judgment within two months and extend pensionary benefits accordingly.

Cause Title: Mahendar Singh v. Union of India & Others

Appearances

Petitioner: Vipinder Roach, Advocate

Respondents: V.B. Verma, Central Government Counsel

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