Sham Lal vs Union Of India And Ors.
2001 Latest Caselaw 1889 Del

JUDGMENT

M.K. Sharma, J.

1. This petition is filed by the petitioner praying for quashing and setting aside of the order dated 3.2.1995 whereby the petitioner was dismissed from service effective from the same date with a further prayer to reinstate the petitioner in service with full back wages and allowances.

2. The petitioner was appointed in BSF on 14.12.1987 against a post of Sub-Inspector. The petitioner after successful training joined his duty as Sub-Inspector. He was posted at BSF Sector Headquarters (DIG Headquarters) Patgaon, Guwahati Assam. After one year of service the petitioner was transferred to 153 Bn. BSF, Panwari, Dist-Dhubri Assam where he served for four years. Thereafter he was transferred to 79 Bn. BSF at Tura Meghalaya on 28.8.1992 from 153 Btn. BSF. The petitioner, however, reported for duty in 79 Bn. BSF only on 3.10.1992 after absenting for duties for 19 days. Thereafter, he proceeded on 14 days casual leave w.e.f. 9.12.1992 till 25.12.1992 for the treatment of his wife. He was to resume his duty on 30.12.1989 but he reported for duty only on 11.1.1993 after over staying for 12 days.

3. The records also discloses that on arrival from leave the petitioner also brought his family to Bn. Headquarter without seeking any permission. He also broke open the door of a Government Quarter and started staying with his family without permission of the Competent Authority. The petitioner was asked to proceed to his Company for Boarder Duty as Platoon Commander. The petitioner, however, refused to obey the orders twice. The petitioner again left the Unit on 10.2.1993 of his own and remained absent from duty without informing anyone. A letter was issued to the petitioner on 27.1.1993 by the respondents to explain as to why a disciplinary action should not be taken against petitioner for the wrongful occupation of the quarter. A reply was received from the petitioner against the letter of the respondents dated 27.1.1993 which was considered any rejected by the competent authority. Thereafter, the respondents decided to proceed against him and accordingly charge-sheets were issued to the petitioner under Section 19(b) of the BSF Act and Section 21(1) of the BSF Act. In one of the charge sheets the allegation was that the petitioner had overstayed the period of leave without sufficient cause and the other of alleged disobeying orders of his superiors in such manner as to show a willful defiance of authorities and lawful command given by his superior officers. The respondents issued two separate orders to Sh. Sarwan Singh, 2 I/C of the Unit to prepare the records of the Abstract of Evidence in respect of the petitioner. The petitioner was supplied copies of the Abstract of the evidence in regard to charge under Section 19(b) of the BSF Act, 1968. The petitioner submitted a letter of resignation from service which, however, was considered and was not accepted in view of pendency of departmental proceedings against the petitioner. The petitioner also submitted a letter requesting for dropping the disciplinary proceedings. Subsequently, however, show cause notice was issued against the petitioner on 28.11.1994 stating that the trial by a Security Force Court is impracticable and further retention in service is undesirable and against the aforesaid show cause notice the petitioner filed a reply which was considered by the respondents and a order was passed on 3.2.1995 dismissing the petitioner from service. Being aggrieved by the said order the petitioner preferred a statutory appeal to the Director General, Board Security Force. The aforesaid appeal of the petitioner was rejected by the Competent Authority on 28.7.1995 and hence the present petition.

4. Counsel appearing for the petitioner submitted that the requirement and the essential of the BSF Rules have not been complied with while issuing the show cause notice as also while issuing the final order passed by the respondents and, therefore, the impugned show cause notice as also the Final order are liable to be set aside. In support of the aforesaid contention, counsel relied upon the decision of the Division Bench of this Court in Sees Ram v. Union of India and Ors., . It was also submitted that although a Court of Inquiry was held against the petitioner, no notice of the same was given to the petitioner as required under Rule 173(8) of the BSF Rules and, therefore, the respondents could not have relied upon the findings of the said Court of Inquiry while issuing the impugned order which also stands vitiated. It was also submitted that Rule 22 of the BSF Rules in terms of which action is being taken by the respondents mandates furnishing of the report on the basis of which the impugned show cause notice was issued and since such report was not supplied by the respondents Along with the said notice, consequent action thereupon is illegal and void.

5. Counsel appearing for the respondents, I however, refuted the aforesaid allegations and submitted that, the petitioner remained absent from duties without leave and that communications were sent to the petition to re-join duties, to which the petitioner did not pay any heed to and, therefore, as he was absent from duties no trial could be held against the petitioner as he was absent unauthorisedly and, therefore, the provisions of Rule 22 of the BSF Rules became attracted in the present case. It was submitted that the trial having become impractical in view of the absence of the petitioner, no error was committed by the respondents in proceeding against the petitioner under the aforesaid provisions. It was also submitted that all the pre-requisite and the essential conditions required to be complied with under the said provision were duly complied with and, therefore, the allegation is misconceived and is liable to be rejected. It was also submitted that for holding the Court of Inquiry no notice is required to be given and in this connection reliance was placed on the provisions of Section 62 of the BSF Act. It was also submitted that the reports were received about the unauthorised absence of the petitioner from duty and the said Fact was intimated by the respondents to the petitioner in the impugned notice and, therefore, there was no necessity of sending any further report as the show cause notice contained the substance of the reports received against the petitioner on the basis of which the impugned show cause notice was issued to the petitioner.

6. In the light of the aforesaid submissions of the counsel appearing for the parties, I examined the records of the case and on the basis thereof proceed to deliver my decision in the case recording reasons thereof. The petitioner was unauthorisedly absent and did not report for duty. Accordingly, the Court of Enquiry was ordered against the petitioner. On the basis of the result of the said Court of Inquiry proceedings, show cause notice was issued to the petitioner stating therein that reports relating to his absence from duties have been received and that the competent authority was satisfied that his trial by Security Court Force was impracticable and that he was of the further opinion that further retention of service of the petitioner was undesirable and accordingly the aforesaid show cause notice was issued intimating to the petitioner tentative proposal of dismissal of the petitioner from service with a direction to him to place his defense against the aforesaid imposition of proposed penalty. The petitioner submitted his reply to the aforesaid show cause notice which was considered by the respondents and thereafter the impugned order was passed as the said reply of the petitioner was found to be not satisfactory. As the competent authority was satisfied that the petitioner was absent without any reasonable cause and that his further retention in service was undesirable, the impugned order was passed on 3.2.1995 dismissing the petitioner from service with effect from the same date.

7. Counsel appearing for the parties agreed that the relevant provisions which would govern the instant case is the amended provision of Rule 22 of the BSF Rules, which were amended by the Amendment Rules of 1990 and published in the Gazette of India on 1.6.1990. The aforesaid amended provisions of Rule 22 read as follows:-

"22. Dismissal of removal of persons other than officers on account of misconduct-

(1) When it 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 move 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) When after 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 explanation and defense:-

Provided that the competent authority may with-hold from disclosure any such report or portion thereof, if, in his opinion its disclosure is not in the public interest.

(3) The competent authority after considering his explanation 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 dismissal or removal under this rule shall be reported to the Director General."

8. A reading of the aforesaid provisions would indicate that when the competent authority proposes to terminate the services of a person subject to the Act other than an officer, he would be given an opportunity by the competent authority empowered to dismiss or remove him, to show cause in the manner specified in Sub-rule (2) against such action.

9. Sub-rule 2 of Rule 22 provides that when after 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 explanation and defense.

10. Sub-rule 3 of Rule 22 provides that the competent authority after considering his explanation and defense, if any, may dismiss or remove him from service with or without pension. Therefore, a power is vested on the competent authority to dismiss or remove a person other than an officer after complying with the procedure and the provisions of Rule 22 of the BSF Rules. The said Rule requires that in an appropriate cause, the competent authority may dispense with the trial if according to the said competent authority, the trial of such a person is inexpedient or impracticable and when he is also of the opinion that his further retention in service is undesirable. When such satisfaction and opinion is arrived at by the competent authority, a show cause notice is to be issued to the concerned person where after the order could be passed as against the said person dismissing or removing him from service.

11. It was contended by the counsel appearing for the petitioner that when unauthorised absence is considered as a misconduct under the BSF Act and Rules framed there under, the entire procedure laid down for a trial to try an offence for misconduct is always required to be complied with and followed and the summary procedure as prescribed under Rule 22 of the BSF Rules cannot be resorted to by the respondents. In my considered opinion, the said contention cannot be upheld. The power given to the competent authority under Section 11(2) of the BSF Act empowers the competent authority, namely, the Commandant to dismiss or remove from service any person under his command other than an officer or subordinate officer. The said power read with Rules 22 and 177 of the said Rules is an independent power which can be validly exercised by the Commandant as prescribed officer and it has nothing to do with the power of the Security Force Court for dealing with the offences such as absence from duty without leave or overstaying leave granted to a member of the Force without sufficient cause and to award punishment for the same. The aforesaid conclusion is by now a settled law in view of the decision of the Supreme Court in GAURANGA CHAKRABORTY v. STATE OF TRIPURA AND ANR., . In the said decision, the Supreme Court held that the services of the enrolled persons under the BSF Act are governed by the provisions of the Act as well as the Rules framed there under and that the power under Section 11(2) of the Act empowering the prescribed authority i.e. the Commandant to dismiss or remove from service any person under his command than an officer on a subordinate officer read with Rule 177 of the said Rules, is an independent power which can be validly exercised by the Commandant as a prescribed officer and it has nothing to do with the power of the Security Force Court for dealing with the offences and such absence from duty without leave on overstaying leave granted to a member of the Force without sufficient cause and to award punishment for the same. The aforesaid position settled by the Supreme Court was again reiterated in the decision of Union of India and Ors. v. Ram Phal reported in 1996 (2) SLR 297. In the aforesaid decision, the Supreme Court held that when a show cause notice is issued in terms of Section 11 of the BSF Act read with Rules 22 and 177 of the BSF Rules, no further enquiry was required to be held and when the personnel did not reply to the notice and there was no denial of the allegations and there was no request to hold an enquiry, then it was not incumbent upon the Director General to appoint an enquiry officer to conduct an enquiry in the manner prescribed by Rule.

12. The prescribed procedure was followed before passing the dismissal order and, therefore, the order of dismissal was upheld by the Supreme Court in the aforesaid decision.

13. Counsel appearing for the petitioner relied upon the decision of this court in Ajaib Singh v. Union of India, reported in 1997 (4) DRJ 710 as also the decision of Division Bench of this court in Somvir and Ors. v. Union of India and Ors. reported in Vol. 68 1997 DLT 806 and also the decision in Sees Ram v. Union of India reported in 1996 (7) SLR 617. In Ajaib Singh's case (supra), it was found by a Single Judge of this court that no satisfaction was recorded by the competent authority in the said show cause notice issued that the trial of the petitioner of the said case was inexpedient or impracticable and in absence of such satisfaction recorded in the show cause notice, the service of the petitioner could not have bene dispensed with in exercise of the power vested under the provisions of Section 11(2) of the Act. In the instant case, such satisfaction that the trial of the petitioner was inexpedient or impracticable, is duly recorded in the show cause notice issued to the petitioner and, therefore, the facts of the said case are distinguishable with the facts of the present case. Therefore, the ratio of the aforesaid decision is not applicable in the present case. In Somvir's case (supra), the Division Bench of this court held that even an opinion was not formed by the competent authority that it was not feasible to try the petitioner by Security Force Court and in that context it was held by the Division Bench that the service of the petitioner could not have been dispensed with in exercise of the powers under Section 11(2) of the Act. The decision of the Division Bench in the case of Sees Ram (supra) is also to the same effect. Thus, it is clearly established that the facts of the aforesaid cases are different from the facts of the case in hand.

14. In Gouranga Chakraborty's case (supra) it was held by the Supreme Court that the services of the enrolled persons under the BSF Act are governed by the provisions of the Act as well as the Rules framed there under and that the power under Section 11(2) of the Act empowering the prescribed authority i.e. the Commandant to dismiss or remove from service any person under his command other than an officer or a subordinate officer, is an independent power which can be validly exercised by the Commandant as a prescribed officer after complying with the procedure thereof. Therefore, the power of the Commandant to take resort to the power vested on him under Section 11(2) of the Act read with Rules 22 and 177 of the Rules, cannot be questioned, which is an independent power and could be exercised by the competent officer when such action is called for in a particular case. In the present case, the competent authority has recorded its satisfaction and opinion in the show cause notice itself that the petitioner was unauthorisedly absent from duty and that the trial by the Security Force Court was inexpedient or impracticable and that his further retention in service was undesirable. The pre-condition as mentioned in Rule 22 of the Rules is, therefore, satisfied in the present case.

15. In the reply submitted to the show cause notice the petitioner did not state that he is in any manner prejudiced in submitting his reply for want of any report. He also did not submit any request for furnishing any documents to him. The report to which mention is made in the show cause notice was only in respect of the fact that the petitioner was unauthorisedly absent from duties. The petitioner himself knew about the said fact and, therefore, it was not necessary to submit any report or document to the petitioner in that regard. Even, otherwise, since the allegations in the report received against the petitioner were substantially communicated to the petitioner, no prejudice was caused to the petitioner in any manner.

16. Therefore, all the contentions of the counsel appearing for the petitioner are found to be without any merit. The preconditions for making out a case under Section 11 of the BSF Act read with Rules 22 and 177 of the BSF Rules have been satisfied and were complied with and the entire procedure as laid down therein was followed by the respondents and, no prejudice was caused to the petitioner in any manner. In that view of the matter no interference is called for to the action of the respondents.

17. In the light of the aforesaid conclusions, I hold that there is no merit in this writ petition and the writ petition stands dismissed.