Simonta Borah vs Union Of India & Ors
2023 Latest Caselaw 1828 Cal

   26.
20.3.2023
   S.D.


                                   W.P.A. 4277 of 2023

                                     Simonta Borah
                                           Vs.
                                  Union of India & Ors.

                  Mr. Soumen Kumar Dutta
                  Mr. Soumadip Saha
                                       ... For the Petitioner
                  Mr. S. Nandy
                  Mr. Debapriya Samanta
                                     ...For the B.S.F. Authority

                  The writ petitioner was recruited as a Constable in the

            Border Security Force (BSF). The writ petitioner prayed for

            earned leave for 45 days. He was granted Casual Leave of 15

            days with effect from June 22, 2020 till July 9, 2020. Without

            praying for extension of leave, the writ petitioner continued

            being on leave. By a notice dated July 16, 2020 issued by the

            Commandant, the writ petitioner was asked to join his service

            immediately. It was intimated to him that strict disciplinary

            action will be initiated against him under the BSF Act and

            Rules unless he immediately joins his service. Again by a

            notice dated September 23, 2020 issued by the Commandant,

            the petitioner was directed to immediately report to duty. In

            default, it was intimated that strict disciplinary action will be

            initiated against him. By a further notice dated September 30,
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2020, the petitioner was again directed to report immediately

and was intimated that disciplinary action will be initiated

against him, in default. The petitioner chose not to reply to

the said notices. He neither joined his service.

      Thereafter a show-cause notice was issued on March 4,

2021 whereby it was recorded that the petitioner has been

illegally overstaying his leave with effect from September 13,

2020, without any sufficient cause.       As per the enquiry

proceeding held in accordance with Section 62 of the BSF Act,

it was found that there was no sufficient cause for

overstaying the leave. The petitioner's case was considered

to be one of continued illegal absence from duty.        It was

clearly stated that further continuation of petitioner's service

was considered to be undesirable. Under Rule 177 of BSF

Rules and in conformity of Rule 22(2) of the Rules, the

petitioner was called upon to show-cause why he should not

be dismissed from service.

      The petitioner was required to show-cause within 30

days from the date of the receipt of the show-cause notice to

make a statement in defence against the proposed dismissal

from service.     In default, it would be assumed that the

petitioner has nothing to urge in his defence against the

action proposed to be taken by the authorities. The petitioner
                         3




chose not to show-cause within 30 days. Thereafter, by an

order dated April 10, 2021, the petitioner was dismissed from

service with effect from April 10, 2021. His name was struck

off from the unit with effect from April 10, 2021.          The

petitioner made a representation on May 9, 2022 and the said

representation was disposed of by an order dated October 21,

2022. By the impugned order dated October 21, 2022, the

Inspector General was of the opinion that there is no reason

to interfere with the order of dismissal dated April 10, 2021.

      Mr. Dutta, learned counsel appearing on behalf of the

petitioner submits that the petitioner is governed by Article

311 of the Constitution of India. Under Article 311 (2), no

person shall be dismissed or removed or reduced in rank

except after an enquiry in which he has been informed of the

charges against him and given a reasonable opportunity of

being heard in respect of those charges.

      He refers to various judgments. He refers to a decision

reported in (2017) 2 SCC 308 (Allahabad Bank vs. Krishna

Narayan Tewari). Next, he refers to a decision reported in

AIR 1994 SC 1074 (Managing Director, ECIL, Hyderabad &

Ors. vs. B. Karunakar & Ors.). He also refers to a decision

reported in (1999) 1 CHN 521 (Arun Kumar Hait vs. State of

West Bengal & Ors.).        Lastly, he relies on a judgment
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reported in AIR 2013 SC 1513 (Nirmala J. Jhala vs. State of

Gujarat & Anr.). He submits that the petitioner is a holder of

a civil post and, therefore, cannot be discharged from service

without following Article 311.

      Mr. Nandy, learned counsel appears on behalf of the

respondent authorities and hands over his written instruction

in Court today. He submits that the petitioner was granted

81 days of Earned Leave with effect from June 24, 2022 to

September 12, 2022 by cancelling 15 days of Casual Leave that

was granted earlier. Despite being granted 81 days of Earned

Leave, the petitioner still continued to overstay

unauthorisedly without any prayer for leave made before the

authorities concerned. Several notices were issued whereby

the petitioner was informed that disciplinary proceedings

will be initiated against him in the event he does not

immediately report to duty. Still then there was no response

from the petitioner. When the petitioner did not respond to

the show-cause notice, the Officer-in-Charge of the concerned

police station submitted a report that the said show-cause

notice was pasted at his residence. Even thereafter, the

petitioner neither replied to the show-cause nor joined his

service. Only, after the petitioner was dismissed from

service, he made a petition for reinstatement on May 9, 2022

more than a year after his dismissal. Since the petitioner has

acted in a way unbecoming of a member of a Force, the

petitioner's order of "dismissal" should not be interferred

with.

Considering the rival submissions of the parties and the

materials placed on record, this Court is of the opinion that

Article 311 is only applicable to the holders of civil posts and

not to the members of the Force. Article 310 is applicable to

members of defence service as well as members of civil

service, but Article 311 is only applicable in case of persons

employed in civil capacities under the Union or State.

The petitioner being a member of Force is clearly

governed by the BSF Act, 1968 and the BSF Rules, 1969.

In Krishna Narayan Tewari (supra), the writ petitioner

was employed with a bank and as such was in civil

employment. The writ petitioner also pleaded not guilty to

the charges framed by the enquiry officer. In such a case, it

was held that the non-application of mind by the enquiry

officer or the disciplinary authority, non-recording of reasons

in support of conclusion arrived at by them, are grounds on

which a Writ Court is justified in interfering with an order of

punishment. The said case has no manner of application in

the context of the present case. Here, neither the petitioner is

a civil post holder, nor has he replied to the show-cause.

In B. Karunakar (supra), again the petitioner was a civil

post holder. The basic question that fell for consideration that

whether the report of the enquiry officer who is appointed by

the disciplinary authority was required to be furnished to the

employee to enable him to make a proper representation to

the disciplinary proceedings. In the present case, the

question of the report of the enquiry officer being furnished

to the petitioner does not and cannot arise since the petitioner

chose not to represent himself by responding to the show-

cause notice. In any event, the said case relates to a civil post

holder.

Arun Kumar Hait (supra) is a case, which relates to the

West Bengal Board of Secondary Education Act. The case

related to the Headmaster of an Institution. The facts of that

case have no manner of application to a member of the Force.

The case of Nirmala J. Jhala (supra) relates to the writ

petitioner being a member of judicial service. The principles

applicable to her case cannot be held to be applicable to the

member of a Force where discipline is of primary concern

and the prescribed procedure for dismissal not on account of

misconduct is laid down in Rule 22(2) of the BSF Rules. On

facts, the petitioner failed to either reply to the several notices

which were issued to him from time to time or the show-

cause notice. He challenged the order of dismissal after one

year of passing of the same. The conduct of the petitioner

shows extreme indiscipline and no respect for his service.

This Court is of the view that the petitioner had no

interest in continuing with his service giving his

inaction/lackadaisical conduct.

In the circumstances, W.P.A. 4277 of 2023 is dismissed

as being misconceived, frivolous and being a complete waste

of judicial time.

The written instructions handed over in Court today is

retained with the records.

Since no affidavits have been called for in this writ

petition, all the allegations contained in the petition are

deemed not to have been admitted by the parties.

All parties shall act on the server copy of this order

duly downloaded from the website of this Court.

Urgent photostat certified copy of this order, if applied

for, be given to the parties upon compliance of all the

formalities.

(Lapita Banerji, J.)