Jitender Singh (Ex. Head Const) vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1875 Del

JUDGMENT

Swatanter Kumar, J.

1. Vide order dated 19.11.1993, Annexure P1 to the writ petition, the petitioner was dismissed from service. The legality and validity of this order is questioned by the petitioner in the present writ petition filed under Article 226 of the Constitution of India who further prays that the respondents be directed to reinstate the petitioner with full back wages and benefits. Against the impugned order, the petitioner had also filed an appeal to the Director General of Border Security Force which was also dismissed by an order of the Appellate Authority dated 30.11.1998, Annexure P5 to the writ petition.

2. The necessary facts as they emerge from the record are that the petitioner was enrolled as a constable in the Border Security Force on 4.2.1981. The petitioner applied for leave and his leave was sanctioned for 60 days by the Commandant of 95 Battalion, Border Security Force i.e. for the period 25.5.1993 to 25.7.1993. During his leave, the petitioner fell sick and not being cured, he applied for extension of the said leave. The Commandant 95 Bn granted him extension of leave by 15 days. Since he was not fully cured he again applied for further extension of leave. However, on 23.8.1993, he was directed by the competent authority to report for duty. The petitioner intimated the Commandant that he was ill and not in a fit condition to travel and could not join on the date given. A Notice to show cause was issued to the petitioner on 1.11.1993 directing him to file a reply by 15.11.1993. Thereafter, the petitioner went to join his unit but was not allowed to rejoin his duty and was sent out of the company under the orders of the adjutant. Vide order dated 19.11.1993, the Commandant terminated the services of the petitioner by passing an order of dismissal with effect from 16.11.1993 for 'absence over leave' from 10.8.1993 to 15.11.1993. Right from the year 1993 till 1997 the petitioner claimed to have persued the matter with the Commandant for reinstatement in service, continuity of his service and for issuance of a certificate in terms of Section 12 of the Border Security Force Act, 1968 (for short 'BSF Act'). Having failed to receive any benefits at the hands of the Commandant, the petitioner also filed a statutory appeal under Rule 28A of the BSF Rules, 1969 (for short 'The Rules') on 30.4.1998, which as already noticed, was rejected on 30.11.1998. The petitioner claims that he continued to approach the respondents even in the subsequent years and thereafter filed the present petition on 28.2.2000. The petitioner challenges the correctness of the order of dismissal dated 19.11.1993 on the following grounds:

(a) The action taken by the respondents is violative of principles of natural justice.

(b) The action of the respondents is not in conformity with the provisions of the relevant Rules as while issuing a notice to show cause to the petitioner, the competent authority has not recorded its satisfaction that trial of the petitioner by a Security Force Court is inexpedient and/or impracticable and also that his further retention in service was undesirable. Without recording such an opinion, no order of dismissal could be passed against the petitioner.

(c) In support of his contentions the learned Counsel appearing for the petitioner has relied upon the judgments in the cases of Sudesh Kumar v. Union of India 1997 (42) DRJ (DB); Sees Ram v. Union of India 1996 (36) DRJ (DB) and Ajaib Singh v. Union of India .

3. Rule 20 of the Rules which were amended vide notification dated 29.5.1990 reads as under:

20. Termination of service of officers by the Central Government on account of misconduct.- (1) When it is proposed to terminate the service of an officer under Section 10 on account of misconduct, he shall be given an opportunity 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 Central Government is satisfied that for reasons, to be recorded in writing, it is not expedient or reasonably practicable to give to the officer an opportunity of showing cause.

(2) When after considering the reports on an Officer's misconduct, the Central Government or the Director-General, as the case may be, is satisfied that the trial of the Officer by a Security Force Court is inexpedient or impracticable, but is of the opinion, that the further retention of the said officer in the service is undesirable, the Director General shall so inform the officer together with particulars of allegation and report of investigation (including the statements of witnesses, if any, recorded and copies of documents if any, intended to be used against him) in cases where allegations have been investigated and he shall be called upon to submit, in writing, his explanation and defense:

Provided that the Director-General may withhold disclosure of such report or portion thereof if, in his opinion, its disclosure is not in the interest of the Security of the State.

(3) In the event of the explanation of the Officer being considered unsatisfactory by the Director-General, or when so directed by the Central Government, the case shall be submitted to the recommendation of the Director-General as to the termination of the Officer's service in the manner specified in Sub-rule (4).

(4) When submitting a case to Central Government under the provisions of Sub-rule (2) or Sub-rule (3), the Director-General shall make his recommendation whether the Officer's service should be terminated, and if so, whether the officer should be:

(a) dismissed from the service; or

(b) removed from the service; or

(c) retired from the service; or

(d) called upon to resign;

(5) The Central Government, after considering the reports and the officer's defense, if any, or the judgment of the criminal court, as the case may be, and the recommendation of the Director-General, any remove or dismiss the officer with or without pension or retire or get his resignation from service, and on his refusing to do so, the officer may be compulsorily retired or removed from the service with pension or gratuity, if any, admissible to him.

4. On the basis of the said Rule, the petitioner was served with a show cause notice dated 23.8.1993, which was also a kind of intimation to the petitioner that he had been over-staying the leave and an action under the provisions of the BSF Act and the Rules would be taken against him. After this intimation, the show cause notice dated 1.11.1993 was served upon the petitioner which reads as under:

SHOW CAUSE NOTICE FOR DISMISSAL IN CASE OF OVERSTAYING FROM LEAVE:

No. Estt/Tac/95/93/Disc/10177

Office of the Commandant

95 Battalion BSF : Tac HQ

C/O. 56 A P O

To

Dated, the 01 Nov'93.

No. 81001118 HC

Jitender Singh

Vill. Baroda

Distt. Sonipat,

Haryana.

Subject : DISMISSAL

Whereas, you have been absent without leave with effect from 10-8-93 (FN). I am of the opinion that because of this absence without leave for such a long period, your further retention in service is undesirable. I, therefore, tentatively propose to terminate your service by way of dismissal.

2. Whereas, if you have anything to urge in your defense against the proposed action, you may do so before 15 Nov'93. In case no reply is received by that date, it shall be persumed that you have no defense to put forward against the proposed action and an ex-parte decision will be taken in this regard.

Place : C/O. 56 A P O

Dated, the 01 Nov' 93 COMMANDANT

95 BATTALION BSF

5. Before the petitioner could submit his reply to the show cause notice, the petitioner was dismissed from service vide order dated 19.11.1993 which reads as under:

OFFICE OF THE COMMANDANT : TAC HQ 95 BN BSF : C/O 56 A PO

ORDER

Whereas, I have gone through the case of absence without leave against No. 81001118 HC Jitender Singh of this unit. He was given an opportunity to show cause vide this office letter No. Estt/Tac/95/Disc/10177 dated 1.11.93 which he has not availed of. I am satisfied that his absence without leave with effect from 10.08.93 (FN) without any reasonable cause and his further retention in the Service is undesirable. I, therefore, dismiss him from BSF service with effect from 16.11.93 (FN) under Rule 177 of BSF Rule 1969. His absence period from 10.08.93 (FN) to 15.11.93 (AN) shall be treated as 'DIES-ON'

2. Amount of deficient Kit/Clothing items and other dues if any will be deducted from his deposits/Pay and allowances, for which separate order will be issued.

3. Above individual is SOS from this unit with effect from 16.11.93 (FN).

6. The facts of the present case are hardly in dispute. The main question is whether the show cause notice issued by the respondents as well as the order passed thereafter, satisfied the requirements of the statutory provisions which provide for certain pre-requisites preceding passing of such an order of dismissal.

7. The power of the respondents to dismiss or remove a person other than the Officer, in accordance with Rule 22 is questioned. The grievance is with regard to the method in which the power has been exercised. The petitioner was served with a show cause notice in which it was stated that the petitioner had over stayed the leave and it was proposed to terminate the petitioner from service, to which, as is evident from the order, no reply was submitted by the petitioner and he was dismissed from service. The language of the show cause notice as well as the impugned order of dismissal clearly shows that the authorities had not applied their minds in relation to both the ingredients as stated in Rule 22 of the Rules. The show cause notice is intended to provide an opportunity to the delinquent to show that there is an alleged misconduct against him and secondly that his trial by a Security Force Court is inexpedient or impracticable. In addition to these two essentials, the competent authority should also form a definite opinion that retention of the said delinquent is undesirable in the Force. Formation of this opinion has to be subjective, but arrived at objectively. All the materials, copies of the documents intended to be used against the Officer have to be given to the Officer along with the show cause notice to ensure that the Officer gets a fair opportunity to reply to show cause and defend himself against the proposed action. In the show cause notice given to the petitioner, no material was annexed and it was only stated that the petitioner was absent from 10.8.1993 and his further retention was undesirable in the Force. No opinion was formed by the competent authority as to whether it was inexpedient or impracticable to hold the trial of the petitioner by a Security Force Court. Thus, one of the basic and main/essential ingredient is absent and the authorities have failed to apply their mind to this most pertinent aspect of the case.

8. Under Section 19(a) of the BSF Act, 'absent without leave' is an offence which on conviction by a Security Force Court can be punished with imprisonment which may extend up to 3 years. Besides this punishment, the petitioner could even be dismissed from service. This is the disciplinary action which the authorities can take for 'unauthorised absence' and it is also open for the authorities to take an administrative action in its discretion but subject to compliance of the Rules. The administrative action in a given case excludes recourse to a regular process of trial by a Security Force Court and once the authorities decide to take recourse to administrative action upon due application of mind, it necessarily implies that the competent authority has chosen not to subject the person to a regular trial by the Security Force Court. Various judgments referred above as well as a recent judgment of the Supreme Court in the case of Romesh Kumar Sharma v. Union of India and Ors. 2006 VII AD (S.C.) 100, judgment of this Court in the case of Ex. Const. Akhilesh Kumar v. The Director General, BSF and Ors. W.P.(C) No. 6577/2002 decided on 21.3.2006 and Sudesh Kumar (supra) has also taken the view that recourse to administrative action is permissible even if the offence is punishable by the Security Force Court, but the authorities have to record reasons as to why it was not expedient or reasonably practicable to comply with the provisions of the Rules. The Supreme Court in the case of Union of India and Ors. v. Harjeet Singh Sandhu enunciated the principle that the departmental action is not prohibited even after a court martial is held. The Court in that case answered as under:

Having thus explained the law and clarified the same by providing resolutions to the several illustrative problems posed by the learned ASG for the consideration of this Court (which are illustrative and not exhaustive), we are of the opinion that the expiry of period of limitation under Section 122 of the Act does not ipso facto take away the exercise of power under Section 19 read with Rule 14. The power is available to be exercised though in the facts and circumstances of an individual case, it may be inexpedient to exercise such power or the exercise of such power may stand vitiated if it is shown to have been exercised in a manner which may be called colourable exercise of power of an abuse of power, what at times is also termed in administrative law as fraud on power. A misconduct committed a number of years before, which was not promptly and within the prescribed period of limitation subjected to trial by court martial, and also by reference to which the power under Section 19 was not promptly exercised may cease to be relevant by long lapse of time. A subsequent misconduct though less serious may aggravate the gravity of an earlier misconduct and provide need for exercise of power under Section 19. That would all depend on the facts and circumstances of an individual case. No hard and fast rule can be laid down in that behalf. A broad proposition that power under Section 19 read with Rule 14 cannot be exercised solely on the ground of court martial proceedings having not commenced within the period of limitation prescribed by Section 122 of the Act, cannot be accepted. In the scheme of the Act and the purpose sought to be achieved by Section 19 read with Rule 14, there is no reason to place a narrow construction on the term 'impracticable' and therefore on availability or happening of such events as render trial by court martial impermissible or legally impossible or not practicable, the situation would be covered by the expression-the trial by court-martial having become impracticable.

9. Thus, recourse to an administrative action is an exception to the regular trial by the Security Force Court, and hence, greater is the obligation upon the authorities concerned to specifically apply their minds and properly record such satisfaction as contemplated under the Rules. The recording of such satisfaction upon proper application of mind should not only be seen to have been arrived at, but records must depict the same.

10. As already noticed, the show cause notice is totally silent about this aspect, no specific averments have been made in the counter affidavit and even in the Record produced before us, it is not reflected that the authorities had applied their minds and came to the conclusion that it was inexpedient or impracticable to hold the Security Force Court's trial of the petitioner. The view expressed by a Bench of this Court in the case of Sudesh Kumar (supra) has attained a kind of finality, as the Special Leave Petition bearing No. 5078/1998 (in the case of Union of India v. Sudesh Kumar) preferred against the said judgment was dismissed by the Supreme Court vide its order dated 7.9.2005. In the case of Sees Ram (supra) the Division Bench of this Court in somewhat similar circumstances, even took the view that in case the order of dismissal passed by way of penalty of misconduct of absence from duty without leave, administrative action may not be the proper course to be adopted by the authorities particularly without due application of mind in relation to the essential ingredients of Rule 22.

11. Having considered the legal aspect of the case, now we may revert back to the relief that the petitioner may be entitled to get in the present writ petition. The show cause notice issued by the respondents does not satisfy the requirements of Rule 22(2), in addition to the inherent defect in it and as stated in various judgments of this Court. This is violation of the statutory Rules as well as principles of natural justice. There is no proof on record to show that the said show cause notice was served upon the petitioner within the stipulated period and the petitioner had a fair chance to submit his reply to the show cause notice. Thus, the show cause notice dated 1.11.93 as well as the impugned order dated 19.11.1993 are liable to be set aside. Ordered accordingly.

12. Despite such setting aside of the order of dismissal the petitioner cannot be ordered to be reinstated in service with all back benefits. The reason is obvious that the petitioner was dismissed from service on 19.11.1993 but he filed the present writ petition in the year 2000. There was no occasion for the petitioner to wait for such a long time in approaching the Court. There are no averments made in the writ petition as to what steps were taken by the petitioner from 1993 to 2000 except a bald submission that the petitioner had approached the respondents for reinstatement into service in the year 1997. The present petition, thus, suffers from the defect of delay and latches, but the petition cannot be dismissed on this sole ground keeping in view the fact that the impugned show cause notice suffers from infirmity of law and is also in violation of the principles of natural justice. Following the principles enunciated in the judgment of the Supreme Court in the case of Managing Director, ECIL, Hyderabad v. B. Karunakar , while setting aside the order dated 19.11.1993, we grant liberty to the respondents to commence the proceedings, if they so desire, by serving a fresh show cause notice to the petitioner upon proper application of mind; after giving opportunity to him in accordance with law and pass such appropriate order, as may be permissible in law. The question of arrears or reinstatement would again be dependent upon the order which may be passed by the respondents in furtherance to this order.

13. Accordingly, the writ petition is disposed of in the above terms, while leaving the parties to bear their own costs.