Rakesh Kumar vs Uoi And Ors
2012 Latest Caselaw 4856 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.453/2012


                              Date of decision:    21st August, 2012

      RAKESH KUMAR                                         ..... Petitioner
                          Through   Mr. S.S. Saini, Adv.

                               Versus


      UOI AND ORS                                         ..... Respondent

Through Mr.Himanshu Bajaj, Adv.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA

GITA MITTAL, J (Oral)

1. By way of the instant petition, the petitioner has challenged an order

dated 25th February, 2008 of the Summary Security Force Court (hereinafter

referred to as `SSFC' for brevity), finding the petitioner guilty of absence

without leave; the sentence of dismissal from service imposed thereon and

the order dated 18th December, 2008 whereby the Director General of the

Border Security Force (BSF) rejected the statutory appeal of the petitioner

against the order of the SSFC.

2. The facts giving rise to the instant petition are in narrow compass and

are substantially admitted. The petitioner joined the BSF in the year 1988

as Constable. He received sixteen cash rewards and two appreciations by

WP (C) No.453/2012 Page No.1 his commandants during the period from 1998 to 2007 for the service

rendered by him. The petitioner was implicated in FIR No.184/2007 and was

arrested by the Police Station Azamgarh, UP on 9th May, 2007 while he was

posted with 133rd Battalion of the BSF in the unit deployed for the conduct of

elections.

3. Our attention is drawn to the order dated 9th May, 2007 passed by the

Commandant of the 133rd Battalion, BSF putting the petitioner under

suspension. Inasmuch as much turns on the interpretation of the said order,

the same deserves to be noticed in extenso and reads as follows:-

"1. Whereas, a case under Section IPC-323, 504, 506, 376 and 3(i) 12 SC/ST Act vide FIR No.184/07 against No.88256034 Ct/Dvr Rakesh Kumar MT Pl. of this unit is under investigation at PS- Ahroula, Distt-Azamgarh (UP)

2. Whereas, he has been taken in Police custody on 09 May 2007 at about 1030 hrs.

3. Now, therefore, the undersigned hereby places Ct/Dvr Rakesh Kumar under suspension with effect from date of detention i.e. 09 May 2007 until further order in terms of Sub Rule 2 of Rule 10 of central civil service classification control and appeal rules 1965 and shall remain under suspension until further order.

4. Now therefore the said No.88256034 Ct/Dvr Rakesh Kumar is entitled to draw subsistence allowances an amount equal to the leave salary which he would have drawn if he had been on leave on half average pay or half pay and in addition to dearness allowance admissible as half pay leave."

(Underlining by us)

4. The petitioner had filed an application seeking bail in the criminal case

before the High Court of Judicature at Allahabad which was granted by an

order dated 28th September, 2007. The order of bail has been placed before

WP (C) No.453/2012 Page No.2 this court. We find that the court noticed the submission on behalf of the

petitioner that he had been falsely implicated. By the same order, the

petitioner was admitted to bail and directed to be released on conditions

mentioned in the said order.

5. The petitioner has contended that, in the meanwhile, the challan had

been filed by the police and he was standing trial before the Sessions Court

at Azamgarh, UP which required to continuously appear before the court.

Learned counsel for the petitioner has submitted that the petitioner was not

an absconder from justice and was regularly participating in the criminal trial

which was being conducted.

We are informed that the trial is not over even on date and the

petitioner is required to appear on every court date before the learned

Sessions Judge.

6. It appears that at the same time, the respondents were making efforts

to ascertain whether the petitioner was employed. The respondents claim to

have issued communications to the petitioner through the office of the Jail

Superintendent since he was in judicial custody in this regard. Copies of the

following documents have been placed on record by the respondents:-

(i) A communication dated 12th June, 2007 calling upon the petitioner to

furnish a non-employment certificate for releasing the subsistence allowance

which was sent through the Jail Superintendent, District Azamgarh, Uttar

Pradesh.

(ii)    Communications dated 5th July, 2007; 17th July, 2007 and 23rd August,
       WP (C) No.453/2012                                     Page No.3

2007 addressed to the Superintendent of Police (S.P.), District Azamgarh, UP

requesting intimation of the present position of the case in which the

petitioner stood implicated. The respondents admit that no reply was

received by them to any of these communications.

7. The petitioner has stated on affidavit that none of the communications

sent by the respondents, including those through the police authorities, were

served upon the petitioner. Non-service thereof is supported by the fact that

the respondents have admittedly not released even the subsistence

allowance which was admissible to the petitioner upon his suspension.

8. The counter affidavit states that the same was not done because the

respondents were awaiting the non-employment certificate from the

petitioner. It is stated that such non-employment certificate is to be

furnished by a suspended official under FR 53(2) is required to be furnished

every month till release from judicial/police custody/jail.

9. A letter dated 31st August, 2007 to the SHO, Police Station Ahroula,

Distt. Azamgarh, UP and another letter dated 6th October, 2007 to the

Superintendent of Police, Azamgarh, UP were also sent by the respondents

requesting them to obtain non-employment certificate from the petitioner.

10. The respondents then addressed a letter dated 10th November, 2007 to

the Jail Superintendent, District Jail, Azamgarh, UP to obtain the non-

employment certificate from the petitioner. We are unable to understand

the manner in which the respondents have proceeded. Given the admitted

position that the respondents had suspended the petitioner because he WP (C) No.453/2012 Page No.4 stood arrested and was in judicial custody, we fail to see the need for a non-

employment certificate from the jail to release the subsistence allowance.

While in jail, the petitioner certainly could not have been employed

anywhere.

11. At this stage, the jail authorities then informed the respondents that

the petitioner stood released from jail on 17th October, 2007 on bail, which

information was received by the respondent on 21st November, 2007.

12. The respondents thereafter made efforts to ascertain the whereabouts

of the petitioner by a communication dated 27th November, 2007 to the S.P.,

Azamgarh, UP with a copy to the Superintendent, District Jail, Azamgarh,

which efforts were unsuccessful. A reply thereof was received only on 18th

December, 2007 informing that the petitioner had been released subject to

his furnishing a bail bond.

13. The respondents submit that despite his release from jail, the

petitioner did not report to his Headquarters with the 133rd Battalion, BSF in

Gandhi Nagar, Gujarat.

It is submitted by the respondents that consequently, an order dated

8th January, 2008 was passed removing the petitioner from suspension

retrospectively w.e.f. 17th October, 2007 which was the date of his release

from jail. The commandant of the 133rd Battalion further directed that orders

regarding pay and allowances for the period of suspension from 9th May,

2007 to 17th October, 2007 shall be passed after final decision in the criminal

case, which was pending, is taken.

WP (C) No.453/2012 Page No.5

14. Before the issuance of the revocation order, it appears that the

respondents claim that they sent letters informing the petitioner that he was

required to report to the Battalion Headquarters. In this regard, the

respondents, however, have placed letters dated 27th November, 2007; 18th

December, 2007 and 2nd January, 2008 calling upon the petitioner to join

duties. The respondents, however, are unable to support the issuance of

these letters with any material showing that these communications were

ever received by the petitioner.

15. The petitioner has submitted that the petitioner reported to the 133rd

Battalion, BSF on 12th January, 2008 when he got to know of the revocation.

16. The original record shows that the communications sent to the

petitioner have been returned with the report of the postal authorities that

he was not residing at the given address. Learned counsel for the

respondents submits that postal authorities have stated that intimation was

given to the person residing at the address. The same cannot be said to be

deemed service on the petitioner inasmuch as he was not residing at the

address. The communications sent through the S.P., Azamgarh, UP for

service on the petitioner also could not be served upon him.

17. At this stage, on 22nd February, 2008, the respondents charge-sheeted

the petitioner for absenting himself for a period of 86 days w.e.f. 18th

October, 2007 till 12th January, 2008. The petitioner was tried by his

Commandant as the Summary Security Force Court on 25th February, 2008

for the offence of being absent without leave. On conclusion of the trial on WP (C) No.453/2012 Page No.6 the same date, the SSFC found him guilty and sentenced him to be

dismissed from service. The order was countersigned by the District Sector

Headquarters, BSF, Gandhi Nagar.

18. The petitioner preferred a statutory appeal under Section 117(2) of the

BSF Act on 11th August, 2008 to the Director General, BSF assailing the afore-

noticed order and sentenced the petitioner which was rejected by the order

passed on 18th December, 2008.

19. The petitioner has assailed the order, proceedings and sentence

imposed on him inter alia for the reason that the petitioner could not have

been found guilty of having been absent without leave inasmuch as he had

been admittedly suspended from service by the order dated 8 th January,

2008 while he was in jail and had received no other communication from the

respondents. It is urged that shortly after learning of the revocation of the

suspension order dated 8th January, 2008, the petitioner returned to his

Headquarters on 12th January, 2008. It has further been submitted that none

of the communications issued by the respondents were ever served upon the

petitioner.

20. The respondents before us have taken a stand that upon release from

custody, the petitioner was required to report to the Headquarters. The

record of this writ petition shows that on 31st May, 2012, the counsel for the

respondents had sought time to place before the court any rule or regulation

that obliged a person, subject to the BSF Act, to remain present in the Unit

despite an order of suspension. No such rule could be placed before us by WP (C) No.453/2012 Page No.7 the respondents. On the contrary, reliance has been placed on the

provisions of the CCS Rules which require intimation of implication in a

criminal case to be given by a person who is so implicated. The rules cast an

obligation also on a person who may have been released on bail to also

inform the authorities with regard to his implication in the case.

However, there is no rule which covers an exigency as in the present

case.

21. In the instant case, the petitioner was suspended after and because he

had been arrested. The authorities were, therefore, fully aware of his

implication in the case.

There is, therefore, no statutory prescription requiring that the person

who has been arrested in a case and so placed under suspension, has to

report to his unit when he is admitted to bail.

22. Be that as it may, it is an admitted position that the respondents have

not been able to serve any of the communications which were either sent to

the jail authorities or directly to the petitioner.

23. A reading of the order dated 9th of May, 2007 whereby the petitioner

was placed under suspension records that the petitioner shall remain under

suspension "until further orders". This order was passed when the petitioner

was not in the Unit and had been arrested. The respondents did not require

the petitioner to report to the Unit while under suspension. The authorities

have revoked the suspension of the petitioner only by an order passed on 8 th

January, 2008. The same has been effected with retrospective effect from WP (C) No.453/2012 Page No.8 17th October, 2007. In case the suspension had not been revoked with

retrospective effect, the absence of the petitioner from his unit at best had

been for a period of around four days upto 2nd January, 2008 when he

actually reported.

24. In this background, we are unable to agree with the respondents to the

effect that the petitioner was absent without leave from the Battalion from

17th October, 2007 till 12th January, 2008. The order and sentence of the

Summary Security Force Court as well as the order dated 18th December,

208 must also fail on the ground that it violates principles of natural justice

inasmuch as the petitioner has been penalized for commission of an offence

when he was not put to notice that he was to report to the Unit and when he

was not given an opportunity to comply with the directions.

25. Given the respondents stand in the letter dated 8th January, 2008 that

orders regarding the petitioner's pay and allowances for the period of his

suspension shall be passed after a final decision in the criminal case, it is

evident that the respondents were aware that the case was pending.

Learned counsel for the petitioner has explained that the petitioner was

throughout appearing regularly in the court. The same would manifest the

petitioner's submission that he was not an absconder from justice and did

not conceal himself from the respondents.

26. In view of the above, we direct as follows:-

(i) The impugned order dated 25th February, 2008 of the Summary

Security Force Court finding the petitioner guilty and sentencing dismissal of WP (C) No.453/2012 Page No.9 the petitioner from service as well as the order dated 18 th December, 2008

are set aside and quashed.

(ii) The petitioner shall stand reinstated in service and shall be permitted

to report for duties. The petitioner shall be entitled to all consequential

benefits including seniority and pay, as if the order dated 25th February, 2008

had not been passed against the petitioner.

(iv) The writ petition is allowed in the above terms.

(GITA MITTAL) JUDGE

(J.R. MIDHA) JUDGE AUGUST 21, 2012 aa

WP (C) No.453/2012 Page No.10