BSF constable reinstated 28 years after dismissal for overstaying leave to take care of ailing wife after delivery

Singh had joined BSF’s 6th Battalion in 1992 and was later posted in Jammu. In 1996, his wife underwent surgery during childbirth, leaving the family in distress. Singh took sanctioned leave from January 1 to 30, 1997, but her condition worsened, forcing hospitalisation. He claimed to have informed his superiors through calls and letters seeking an extension, yet was charged with unauthorised absence from January 31 to May 14, 1997.

On July 1, 1997, he was suspended, chargesheeted two weeks later, and dismissed on September 11, 1997, after he admitted guilt during an inquiry, allegedly under assurance from a senior officer that he would be pardoned.

The court said the dismissal rested entirely on Singh’s admission of guilt. “The entire inquiry and dismissal were in entirety based on the petitioner’s admission of guilt which could not have been the sole basis of the decision,” the judgment noted, adding that no independent evidence was produced to verify the reasons for absence.

It held that the admission was extracted under undue influence. “Such an admission, obtained under inducement and undue influence, cannot form the sole basis of punitive action and would amount to violation of Article 20(3) of the Constitution, which affords protection against testimonial compulsion,” the court observed.

Justice Moudgil ruled that Singh was denied a fair hearing. “He was dissuaded from producing any defence material qua the assurance made by the respondent no. 4 that his admission alone would suffice for lesser punishment or even pardon, inevitably denying him a reasonable opportunity of defence. An inquiry conducted in violation of fair hearing is a nullity in the eye of law,” the judgment stated.

The court also flagged a timeline breach: Singh was given only 12 days to respond to the inquiry report, instead of the mandatory 15, citing Managing Director, ECIL v. B. Karunakar (1993) to stress that access to the inquiry report is an essential part of natural justice.

On the severity of the penalty, the court invoked the doctrine of proportionality. “The penalty of dismissal for overstaying leave, even assuming misconduct, is shockingly disproportionate to the charge,” it said, quoting Ranjit Thakur v. Union of India (1987) that punishment must reflect not just the offence but also the circumstances.

The Union of India, represented by Senior Panel Counsel Anita Balyan, argued that Singh’s prolonged absence constituted grave misconduct in a disciplined force. The court rejected this, holding that proportionality and fairness cannot be compromised even in uniformed services.

The court held the dismissal unsustainable on three counts: violation of the constitutional guarantee against self-incrimination; denial of natural justice; and grossly disproportionate punishment.

Calling it a case that highlights the balance between discipline and humanity, the court ordered Singh’s reinstatement “with all consequential benefits”.

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