Delhi High Court

Ex. Ct. Sanjay Singh vs Union Of India & Ors. on 9 February, 2012

Author: Anil Kumar

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP(C) No.5831/1999

%                        Date of Decision: 09.02.2012

Ex. Ct. Sanjay Singh                                        .... Petitioner

                     Through    Mr.Rajesh Sharma, Advocate

                                 Versus

Union of India & Ors.                                    .... Respondents

                     Through Mr.Ankur Chhibber, Advocate.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


ANIL KUMAR, J.

1. The petitioner has sought quashing of dismissal order dated 2nd

December, 1997 pursuant to show cause notice dated 10th December,

1995 and has sought his reinstatement with all the consequential

benefits.

2. Brief facts to comprehend the controversies are that the petitioner

alleged that he is a resident of Village & Post- Khera Khurad, Delhi and

he hails from a very poor family. The petitioner contended that on

account of his poverty he could not even continue his study and that in

order to earn some livelihood, he had enrolled in the Border Security

Force as a Constable and was allotted the service No.91477328.

3. After completing his training in the force successfully, he was

posted in the operational Unit of the BSF.

4. In August, 1995, the petitioner was granted leave and he went

home. After the expiry of the leave, the petitioner alleged that he had

fallen sick and therefore, he could not report to his Unit on 24th August,

1995 and was compelled to stay at his home.

5. The petitioner disclosed that by order dated 28th August, 1995 he

was asked to report for duty and that in his reply to the notice dated

28th August, 1995 he had informed the Commandant that he was

suffering and was consequently unable to reach the Unit. According to

the petitioner, his representation was received by the Commandant on

29th August, 1995. The petitioner further contended that he had sent

another reminder regarding his sickness, however, the Commandant

sent another notice dated 17th September, 1995 & thereafter the notice

dated 4th October, 1995.

6. Consequent thereto, a show cause notice dated 10th December,

1995 was issued to the petitioner. The notice issued to the petitioner

stipulated as under:-

"You have been absenting without leave from 24.8.1995. After considering the reports relating to your absence, I am satisfied that your trial by a Security Force

Court is impracticable but I am of the opinion that your further retention in service is undesirable. I therefore, tentatively propose to dismiss you from the service. If you have anything to urge in your defence against the imposition of the proposed penalty, you may do so within 15 days of the receipt of this letter. In case no reply is received within the stipulated period, it would be presumed that you have no defence to put forward and ex-parte decision will be taken into the matter."

7. According to the petitioner, his health was such that he could not

reply to the show cause notice given to him.

8. Later on, by letter dated 6th June, 1997 the petitioner was

informed that he has been discharged from service.

9. The petitioner, consequently, made a representation dated 23rd

August, 1997 to the Director General, BSF. The plea of the petitioner is

that inspite of his representation made on 23rd August, 1997 he had not

received any reply from respondent no.2.

10. The petitioner disclosed that he had filed a C.W.P. No.4387 of

1997, titled as „Ex. Ct. Sanjay Singh v. Union of India &Anr.‟, which was

decided by order dated 20th October, 1997 directing the Director

General, BSF to dispose of the appeal/representation of the petitioner

within a period four weeks from 20th October, 1997. The petitioner was

also granted liberty to revive his petition in case his

representation/appeal was not decided within stipulated period of four

weeks.

11. According to the petitioner, his representation/appeal was

decided by order dated 2nd December, 1997 rejecting his appeal. The

petitioner asserted that his appeal/representation was disposed of

mechanically without any application of mind.

12. Since the representation/appeal of the petitioner had not been

disposed of within four weeks of order dated 20th October, 1997 passed

in CWP No.4387/97, the petitioner, therefore, filed an application being

CMP No. 5914/1998 for the revival of his civil writ petition

No.4387/1997 which application was dismissed, however, the petitioner

was granted liberty to file a fresh writ petition against the order dated

2nd December, 1997 passed by the respondents.

13. Aggrieved by the order dated 2nd December, 1997 rejecting the

appeal/representation of the petitioner and discharging him from the

service, the petitioner has filed the above noted writ petition contenting,

inter-alia, that the show cause notice dated 10th December, 1995 and

consequent thereto the order of discharge dated 2nd December, 1997 are

illegal since they had been passed mechanically without any application

of mind and it could not have been held at the time that it was

inexpedient or impracticable to hold the inquiry under the BSF Act,

1968 and therefore, the order is liable to be set aside. According to the

petitioner, there were no such records available with the respondents,

for them to have held that it was inexpedient or impracticable to hold

an inquiry. The petitioner contended that the offence alleged against

him is absence without leave which is punishable under Section 19-A of

the BSF Act, 1968 and is to be tried by the Security Force Court and

that only in those cases where trial by the Security Force Court is not

expedient, or is impracticable, can an order of dismissal from the

service be passed. In order to substantiate his plea the petitioner relied

on a decision of the Supreme Court in the case of Major Radha

Krishnan v. Union of India & Ors., JT 1996 (1) SC 650.

14. Along with the writ petition, the petitioner filed the copies of

notices dated 28th August, 1995; 31st August, 1995; 17th September,

1995 & 24th October, 1995 which were received by the petitioner

directing him to report for duty failing which it was stipulated that the

petitioner would be arrested by the Civil Police and that the appropriate

proceedings would be initiated against him. Though, the petitioner has

alleged that he had sent the representations, however, copies of alleged

representations are not filed with the writ petition. The petitioner has

also filed a copy of the medical certificate dated 31st October, 1995 from

Nigam Clinic & Nursing Home, T-113, Indra Colony, Narela, Delhi-40.

15. The petitioner also filed postal receipts dated 22nd January, 1996;

7th September, 1995; 18th September, 1995 & 25th October, 1995.

16. The writ petition is contested by the respondents contending,

inter-alia, that the petitioner had absented himself from 24th August,

1995 from the STC BSF, Kharldan Camp. The respondents also

disclosed that they had received a letter from the petitioner on 28th

August, 1995 in which the petitioner had stated that since his

grandfather was sick, he had come to his home without leave and

thereafter, his brother had expired, therefore, he may be granted one

month leave. The respondents also produced a copy of the letter dated

2nd November, 1995 appointing Sh.R.K.Basatta, Assistant Commandant

to conduct a Court of Inquiry and to submit the report by 15th

November, 1995. A copy of the show cause notice dated 10th December,

1995 was also produced by the respondents pursuant to which the

dismissal order dated 16th January, 1996 was passed holding that the

petitioner is dismissed from service w.e.f. 16th January, 1996 (A/N)

under Rule 177 read with Section 11 (2) of the BSF Act, 1968 without

any pensionary benefit and that his absence period w.e.f. 24th August,

1995 to 16th January, 1996 shall be treated as "dies non". The order

further stipulated that a sum of Rs.851/- being the cost of the deficient

kit, clothing & equipments and Rs.40/- and Rs.90/- being the

outstanding mess dues also be recovered from the petitioner. The

respondents also produced the copy of the order dated 2nd December,

1997 rejecting his petition dated 21st August, 1997 addressed to the

Director General, B.S.F. which was disposed of pursuant to the order

dated 20th October, 1995 in CWP No. 4387 of 1997.

17. Learned counsel for the respondents have relied on Gouranga

Chakraborty v. State of Tripura & Anr., (1989) 3 SCC 314, holding that

the power of the Commandant under Section 11 (2) of the BSF Act,

1968 to dismiss or remove from service any person under his command

other than an officer or sub-ordinate officer read with Rule 177 of the

BSF Rule, 1969 is an independent power which can be validly exercised

by the Commandant as the 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 over staying leave granted

to a member of the force without sufficient cause and to award

punishment for the same. Reliance has also been placed by the

respondent on another decision of the Supreme Court in the case of

Union of India & Ors. v. Ram Phal, (1996) 7 SCC 546.

18. This Court has heard the learned counsel for the parties. The

admitted facts are that the petitioner did not report for duty after leave

on 24th August, 1995. Though the petitioner has alleged that he had

sent the representations after 24th August, 1995, followed by many

reminders, however, copies of none of the said representations have

neither been produced nor filed with the writ petition. The stand of the

petitioner appears to be rather contradictory. The petitioner has

produced the photocopies of the postal receipts dated 7th September,

1995, 18th September, 1995 and 25th October, 1995 and have also

produced a copy of the medical certificate dated 31st October, 1995 from

the Nigam Clinic & Nursing Home. However, what was sent with the

postal receipts dated 7th September, 1995, 18th September, 1995 and

25th October, 1995 has not been explained by the petitioner. It is also

evident that the medical certificate dated 31st October, 1995 could not

have been sent along with these three postal receipts produced by the

petitioner as the said certificate is pertaining to a later date. When was

the alleged medical certificate sent to the respondents has not been

clarified, nor have any documents been produced in this regard. The

alleged certificate also shows that the petitioner is alleged to be

suffering from T.B. of the lungs. However, nothing else has been

produced by the petitioner to show as to when he was detected with the

alleged disease or for how long he continued with the treatment.

19. The respondents have rather admitted that the petitioner had

sent the representation dated 28th August, 1995 after he had failed to

report at STC BSF, Kharldan Camp after the expiry of his leave on 24th

August, 1995. The petitioner had rather disclosed that his grandfather

is sick and that his brother had expired. Nothing has been produced by

the petitioner in respect of the alleged plea raised by him in the

representation dated 28th August, 1995 verifying that his grandfather

was sick or that his brother had expired. Rather, no such averment has

even been made in the writ petition challenging the order dated 2nd

December, 1997, dismissing his representation. Though the petitioner

was dismissed from service by order dated 16th January, 1996 passed

under Section 11 (2) of the BSF Act, 1968 read with Rule 177 of the

BSF Rules, however, in the writ petition the said order has not been

challenged and what is challenged is the show cause notice dated 10th

December, 1995 and the rejection of his appeal dated 24th August, 1997

by order dated 2nd December, 1997 pursuant to the order dated 20th

October, 1997 passed in the writ petition bearing CWP No.4387/1997,

titled as „Ex. Ct. Sanjay Singh v. Union of India & Ors‟.

20. In the facts and circumstances as noted above, it is apparent that

the petitioner has taken contradictory stands and has not given any

satisfactory explanation as to why the petitioner did not join his duty

after 24th August, 1995. This is also not disputed that the notices were

given to him repeatedly to report for duty failing which the respondents

were entitled to take action against the petitioner.

21. The petitioner despite the notices did not join the duty, nor had

he disclosed any cogent or sufficient reasons for not joining the duty.

22. From 24th August, 1995 till 16th January, 1996 when the order of

dismissal was passed, the petitioner did not join the duty. If the

petitioner remained absent without any cause or reason, his conduct

made his retention in the service undesirable. If that be so, under

Section 11 of the BSF Act, 1968 read with Rule 177 of the BSF Rule,

1969 the respondents were entitled to pass the dismissal order, not

because of the misconduct of the absence without leave, but because

his further continuance in the service was held to be undesirable. Thus,

the order was passed in exercise of an independent and separate power

conferred on the respondents under Section 11 of the BSF Act, 1968.

23. It is also pertinent to note that in any case, the procedure as

prescribed under Rule 20 of the BSF Rules, 1969, for termination of

service for unauthorized absence had been duly complied with by the

Competent Authority. In the notice dated 10th December, 1995, it was

stipulated that the petitioner had absented himself without leave from

24th August, 1995, thereby satisfying Sub Rule 3 of Rule 20. Also the

petitioner was given 15 days time to represent against the allegations

framed against him, thereby satisfying Sub Rule 6. However, the

petitioner did not avail the same nor was any request made to hold an

inquiry. In the circumstances, the respondents were justified in

concluding that the petitioner‟s retention in the services is not desirable

and therefore, his dismissal by order dated 16th January, 1996 is not

arbitrary but after due compliance of the prescribed procedure under

law. In Gouranga Chakraborty (supra), the delinquent was a constable

who was granted leave from 25th October, 1971 to 30th October, 1971

on account of the death of his father. The said delinquent had not

joined on 31st October, 1971 and on 12th December, 1971 he had

received a communication that he had been absent without leave and

on that basis the opinion was formed that his retention in the service

was undesirable and it was consequently proposed that he be dismissed

from the service. The delinquent was also asked to submit his

explanation against the imposition of the penalty. In the instant case,

though the delinquent had sent a telegram explaining his difficulty,

however, the plea was not accepted. Thereafter on 5th January, 1997

the delinquent was dismissed from the service. In these circumstances,

the delinquent had challenged his dismissal on the ground that a

procedure has been provided under the BSF Rules, 1969 for trial of

offences by the Security Force Court and for awarding of the

punishment. The order of dismissal was also challenged on the ground

that it was not made in accordance with the provisions of the Act and

the Rules framed thereunder as no trial by the Security Force Court

was conducted, nor was any order of punishment awarded by the

Security Force Court as required under the provisions of the Act. It was

held that Section 11 (2) of the Act empowers the Commandant, who is

the prescribed officer, to dismiss or remove from service any person

under his command other than an officer or a sub-ordinate officer of

such rank or ranks, subject to the provisions of the said Act and Rules.

The Supreme Court after considering the ambit and scope of the Section

11 had held under Section 11 (2) of the BSF Act, 1968 read with Rule

177 of the said Act, the prescribed authority i.e. the Commandant is

empowered to dismiss or remove from the service any person under his

command other than an officer or sub-ordinate officer of such rank or

ranks as may be prescribed. This power 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 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. It was further clarified by

the Supreme Court that the provisions of Sub Rule 4 of Section 11

which enjoin that the exercise of the power under the aforesaid section

shall be subject to the provisions of the Act and Rules does not signify

that the power to dismiss a person from service by the Commandant for

his absence from duty without leave any reasonable cause or for

overstaying leave without sufficient cause and holding him as

undesirable cannot be exercised unless the Security Force Court has

awarded the punishment to that person in accordance with the

procedure prescribed by law. It was held that the prescribed authority

i.e. the Commandant is a competent authority to exercise the power

under Section 11 (2) of the said Act and to dismiss any person under

his command as prescribed under Rule 177 of the BSF Rules, 1969.

The relevant observations made by the Supreme Court in para 27 at

pages 320 and 321 of the Gouranga Chakraborty (supra) are as under:-

"27. We have scrutinised the relevant provisions of the BSF Act as well as the BSF Rules framed thereunder and we have no hesitation to hold 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 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 provision of Sub-section (4) of Section 11 which enjoins that the exercise of the power under the aforesaid Section shall be subject to the provisions of the Act and the Rules does not signify that the power to dismiss a person from service by the Commandant for his absence from duty without leave without any reasonable cause or for overstaying leave without sufficient cause and holding him as undesirable cannot be exercised unless the Security Force Court has awarded punishment to that person in accordance with the procedure prescribed by law. The Prescribed Authority i.e. the Commandant is competent to exercise the power under Section 11(2) of the said Act and to dismiss any person under his command as prescribed under Rule 177 of the BSF Rules. It is also to be noticed in this connection that Rule 6 of the said Rules has specifically provided that in regard to matters not specifically provided in the Rules it shall be lawful for the Competent Authority to do such thing or take such action as may be just and proper in the circumstances of the case. In this case though" any procedure has not been prescribed by the Rules still the Commandant duly gave an opportunity to the appellant to submit his explanation against the proposed punishment for dismissal from service for his absence from duty without any leave and overstaying leave without sufficient cause. The appellant did not avail of this opportunity and he did not file any show cause to the said notice. Thus the principle of natural justice was not violated as has been rightly held by the High Court. No

other point has been urged before us by the learned Counsel appearing on behalf of the appellant."

24. Similarly, in Ram Phal (supra), it was held that holding an inquiry

by the Security Force Court is not a condition precedent for the

prescribed officer i.e. Commandant to pass an order of dismissal on

account of the continuing absence of an officer from the duty under

Section 11 (2) of the BSF Act, 1968 as long as there is sufficient

compliance of the principles of natural justice.

25. In the facts and circumstances, therefore, the petitioner has not

been able to make out a sufficient cause for his absence without leave.

It is not disputed that the petitioner had remained absent without any

sufficient cause from 24th August, 1995 till 16th January, 1996 when

the order of dismissal was passed under Section 11 (2) of the BSF Act,

1968 read with Rule 177 of the BSF Rules, 1969 after the show cause