Ex. Constable Ranbir Singh vs Union Of India And Others
2001 Latest Caselaw 856 Del

ORDER

Dr. Mukundakam Sharma, J.

1. The Present petition is preferred by the petitioner challenging the legality of the order dt. 11.7.98 passed by the respondents whereby the petitioner was dismissed from service in exercise of the powers vested on the respondents under Section 11(2) of the B.S.F. Act, 1968 read with Rule 177 of the BSF Rules.

2. The Petitioner joined the Border Security Force as a Constable. The petitioner was absent from his duties without any leave w.e.f. 10.4.98 and accordingly an intimation was sent to the Police Station Baishnabnagar, Malda (West Bengal), on 13.4.98 intimating that the petitioner had been found absent without leave w.e.f. 10.4.98 from unit line. By the said communication his home address was sent and the concerned police station was requested to register the first information report. A notice was also issued to the petitioner on the same date i.e. on 13.4.98. By the said letter, the petitioner was directed to resume his duties immediately, failing which he was intimated that strict disciplinary action would be taken against him as per BSF Act and Rules.

3. On 4.6.98, a show cause notice was issued to the petitioner at his home address intimating to him that he had been absent without any leave w.e.f. 10.4.98. It was also mentioned in the said notice that after considering the reports relating to his absence, the competent authority was satisfied that his trial by Security Force Court was inexpedient and impracticable and that he was of the opinion that his further retention in service was undesirable. The competent authority proposed tentatively to dismiss the petitioner from service and he was asked to show cause why the aforesaid action should not be taken against him in the circumstances mentioned in the said notice. The petitioner did not submit any reply as against the aforesaid notice and subsequent thereto the order dt. 11.7.98 was passed by the respondents dismissing him from service w.e.f. 11.7.98 in terms of Section 11(2) of the BSF Act read with Rule 177 of the Rules. The aforesaid order is challenged in this court on various grounds.

4. It was contended by the counsel appearing for the petitioner that the petitioner did not receive any show cause notice and since no show cause notice was served on the petitioner, the impugned order could not have been passed by the respondents. It was also submitted that it was mandatory for the respondents to conduct a trial for alleged unauthorised absence of the petitioner in terms of Section 19(A) of the Act. It was Submitted that since the procedure as prescribed under the law was not followed before dismissing the petitioner from service, namely, to have a full fledged trial for unauthorised absence under Section 19(A) of the Act, the service of the petitioner could not have been dispensed with in exercise of the Act, the service of the petitioner could not have been dispensed with in exercise of the powers under Section 11(2) of the Act merely by serving a show cause notice and giving a go-bye to the entire procedure of conducting a trial in accordance with law. It was also submitted that along with the show cause notice, the respondents were duty bound to enclose a copy of the enquiry report so as to give full particulars to the petitioner to submit his reply to the show cause notice and the same having not been done, the impugned order is liable to be set aside and quashed. It was further submitted that in the dismissal order no reason for dispensing with the enquiry is recorded and, therefore, the impugned order is bad in law. Further, contention of the counsel appearing for the petitioner was that although the petitioner has been dismissed from service, he has no been paid his provident fund dues and also other dues, which he is entitled to receive under the law and, therefore, the action of the respondents is illegal and and uncalled for.

5. While refuting the aforesaid allegations, counsel appearing for the respondents submitted that the respondents have been empowered under the provisions of the Act to proceed as against a person and also to dismiss him from service who is in unauthorised absence, after complying with the provisions of Section 11(2) of the BSF Act read with Rule 177 of the BSF Rules and, therefore, since the procedure laid down therein was fully complied with, no grievance could be raised by the petitioner as against the action taken by the respondents.It was also submitted that the petitioner did not submitted that the petitioner did not submitted any reply to the show cause notice in spite of receipt of the same and if he was in any way prejudice for alleged non-submission of any document, he could have definitely asked for the same when the same would have been supplied to him to enable him to submit an effective reply to the show cause notice and having not done so, he cannot claim any violation of the principles of natural justice particularly when no prejudice is caused to the petitioner.

6. In the light of the aforesaid submissions of the counsel appearing for the parties, I have examined the records as also the various decisions relied upon by the counsel appearing for the parties.

7. The records placed before me indicate that the petitioner, without any information and permission from the competent authority, left his unit on 10.4.98. Since the petitioner was found absent without leave w.e.f. 10.4.98 from the unit line, information was sent to the concerned police station, on 13.4.98 for registering a first information report. An intimation was also sent to the petitioner on the same date i.e. on 13.4.98 at his home address bringing to his notice that he had absented from duties without leave/authority w.e.f. 10.4.98. By the said communication the petitioner was asked to report immediately for duties, failing which, it was brought to his notice that failing which, it was brought to his notice that strict disciplinary action would be taken against him as per provisions of BSF Act and Rules. The Aforesaid communication was sent to the petitioner by registered letter at his home address and in proof thereof, the respondents have placed before me the register showing such dispatch of the communication through' registered post. Before issuance of the impugned order, the respondents also issued a show cause notice to the petitioner as envisaged under the provisions of Section 11(2) of the BSF Act Read with Rule 22 of the BSF Rules. It was recorded in the said notice that the petitioner was absent from duties without leave, w.e.f. 10.4.98 and upon consideration of the reports relating to his absence, the competent authority was satisfied that his trial by Security Force Court was inexpedient and impracticable and was also of the opinion that his further retention in service was undesirable. By the said notice the petitioner was asked to show cause as to why he should not be dismissed from service. The said letter was also sent to the petitioner under registered post at his home address, in support of which the Registered is placed on record indicating such dispatch by registered post to the petitioner.

The petitioner did not submit any reply to the aforesaid show cause notice and accordingly the respondents proceeded to pass the impugned order.

8. It is not disputed that the relevant provisions, which would govern the instant case would be Rule 22 of the BSF Rules, which were amended by the amendment Rules of 1990 and published in the Gazette of India, on 1.6.90. The aforesaid amended provisions of Rule 22 read as follows:-

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

(1) When it is proposed to terminated the service of a person subject to the Act an opportunity by the authority competent to dismiss or remove 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 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 is the service is undesirable, it shall so inform his 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 from service with or without pension:-

Provided that a Deputy Inspector General shall not 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."

9. 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.

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 is 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.

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 case, 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 is 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.

10. 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 restored 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 VS. STATE OF TRIPURA AND ANOTHER, , 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 other than an officer or 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 or 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 Others vs. Ram Phal reported in 1996 (2) SLR 297. In the aforesaid discussion, the Supreme Court held that the 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 21. 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.

11. Counsel appearing for the petitioner relied upon the decision of this court in Ajaib Singh vs. Union of India, reported in 1997 (4) DRJ 710 as also the decision of Division Bench of this court in Somvir and others vs. Union of India and Others reported in vol. 68 1997 DLT 806 and also the decision in Sees Ram Vs. 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 been 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 ration 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) clearly established that the facts of the aforesaid cases are different from the facts of the case in hand.

12. 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 therefore. 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 w.e.f. 10.4.98 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. The show cause notice was sent to the petitioner at his home address through registered post which is proved by the records. The petitioner also did not submit any reply to the aforesaid show cause notice nor requested for to hold enquiry/trial. He also did not submit any request for furnishing 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 on unauthorised leave. Petitioner himself knew about the said fact that he had not applied for any leave nor the same was granted in his favor. Therefore, even if the report was not submitted to him, no prejudice was caused to him. However, the show cause notice indicates that a copy of the report was enclosed along with the show cause notice which was sent to him. Therefore, all the contentions of the counsel appearing for the petitioner are found to be without any merit. The precondition 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, and none was pointed out by him before the competent authority, at any state, and, therefore, no interference is called for to the action of the respondents.

13. It was contended that the petitioner has not been paid his dues towards General Provident Fund and other dues, which are admissible to him under the rules. If any payment is due and payable to the petitioner under the General Provident Fund or any other head, to which he is entitled to under the rules, the same shall have to be paid by the respondents in accordance with law and on completion of all formalities by the petitioner. The petitioner may approach the concerned authority seeking for payment of the dues, if any, and upon completion of all formalities and if the amount is found to be due and payable, the same shall be paid by the respondents within six weeks from the date of the petitioner completing all formalities in that regard. In terms of the aforesaid observations and directions, the writ petition stands disposed of.