Delhi High Court
Suresh Kumar vs Border Security Force & Anr. on 16 April, 2014
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : April 01, 2014
Judgment Pronounced on : April 16, 2014
+ W.P. (C) No.5440/2002
SURESH KUMAR .....Petitioner
Represented by: Mr.Jasbir Singh Malik, Advocate
versus
BORDER SECURITY FORCE & ANR. ..... Respondents
Represented by: Ms.Anjana Gosain, Mr.Pradeep
Desodya and Mr.Arvind Sharma
for UOI
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR.JUSTICE JAYANT NATH
PRADEEP NANDRAJOG, J.
1. The factual backdrop leading to the filing of the above captioned
petition is that on August 11, 1988 the petitioner was enrolled as a
Constable in Border Security Force.
2. The petitioner availed earned leave due to him in the year 1989 and
reported back in time. Thereafter, on several occasions the petitioner
overstayed leave or proceeded on unauthorized leave. Put in a tabular form,
the data would reveal as follows:-
Sl. Period of overstay/ Duration of overstay/
No. unauthorized leave unauthorized leave
1. February 23, 1990 to March 01, Seven days
2. March 12, 1990 to March 19, Eight days
3. September 21, 1990 to Forty seven days
November 06, 1990
4. January 08, 1992 to January 15, Eight days
5. June 05, 1992 to June 16, 1992 Twelve days
6. November 21, 1992 to Three days
November 24, 1992
7. December 08, 1992 to Three days
December 10, 1992
8. February 16, 1993 to February Five days
20, 1993
9. April 03, 1993 to April 05, 1993 Two days
10. September 24, 1993 to October Fourteen days
07, 1993
11. November 19, 1993 to Nineteen days
December 07, 1993
12. April 09, 1996 to June 12, 1996 Sixty five days
13. October 17, 1996 to December Fifty two days
07, 1996
14. February 24, 1997 to April 09, Forty four days
15. December 05, 1998 to January Fifty four days
27, 1999
16. July 20, 1999 to July 31, 1999 Twelve days
17. September 20, 1999 to Two days
September 24, 1999
18. April 19, 2000 to June 23, 2000 Sixty six days
19. July 24, 2000 to September 13, Fifty days
20. October 13, 2000 to October 22, Ten days
21. November 14, 2000 to January Fifty six days
08, 2000
22. January 15, 2001 to February Thirty one days
14, 2001
3. The aforesaid leave(s) were regularized by adjusting the earned
leave, half paid leave, extra-ordinary leave, extra-ordinary leave on medical
grounds etc. due to the petitioner.
4. As is evident from the afore-noted table, the petitioner remained
absent from duty for a period of thirty one days from January 15, 2001 to
February 14, 2001. It is the case of the department that armed with some
medical documents the petitioner reported for duty on February 15, 2001.
In view of the medical documents submitted by him the petitioner was
examined at the Unit MI Room. The doctor who examined the petitioner at
the Unit MI Room concluded that the petitioner was suffering from Bipolar
Affective Disorder and referred him to Institute of Human Behaviour and
Allied Sciences (hereinafter referred to as the „IHBAS‟), Shahdara, Delhi
for further treatment, where the petitioner was admitted on February 15,
2001. It is further the case of the department that the petitioner was got
discharged from IHBAS by his brother Azad Singh on February 16, 2001.
5. When the petitioner did not join duty after getting himself
discharged from IHBAS or was got discharged by his brother nor sent
any intimation to the department regarding his absence, call up notices
were sent at the residential address of the petitioner on March 09/19, 2001.
Petitioner did not respond.
6. An Apprehension Roll was issued with a request to the
Superintendent of Police, District Jind, Haryana since the petitioner resided
in a village in District Jind, to apprehend the petitioner and hand him over
to the Battalion Head Quarter, but no response was received from the
police in said regards.
7. A Court of Inquiry was ordered which opined that in the absence of
any communication received from the petitioner his absconding amounted
to willful absenting from discharging duties i.e. unauthorized absence
without sufficient cause. Suitable action was directed to be taken.
8. Since the petitioner had gone missing the Commandant opined that it
would not be feasible to try the petitioner at a Security Force Court and
thus a show cause notice dated June 02, 2001 was sent to the petitioner at
his permanent residential address requiring the petitioner to show cause as
to why he should not be dismissed from service. Being relevant, we note
the contents of the show cause notice dated June 02, 2001 issued to the
petitioner:-
"You have been absenting without leave from 2100 hrs on
16.02.2001. After considering the reports relating to your
absence, I am satisfied that your trial by a Security Force
Court is inexpedient and impracticable but 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 30
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."
9. The petitioner did not respond to the show cause notice dated June
02, 2001 and as a result thereof on August 18, 2001 the Commandant
passed an order dismissing the petitioner from service on account of his
prolonged unauthorized absence from duty.
10. Thereafter the petitioner submitted an appeal to the Appellate
Authority essentially contending therein that: -
(i) Commandant ought not to have dismissed the petitioner from service
without conducting an enquiry into the matter and giving a reasonable
opportunity to the petitioner to defend himself;
(ii) Petitioner was not unauthorizedly absent from duty for the period
from February 16, 2001 to August 18, 2001 but was undergoing treatment
for his mental ailment in various hospitals such as BSF Hospital, IHBAS,
Safdarjung Hospital, PGIMS Hospital and Swami Dayanand Hospital
during said period, which fact was very much in the knowledge of
Commandant of petitioner;
(iii) Commandant who was infuriated with the petitioner as the wife of
petitioner had complained to the superior authorities that Commandant was
pressurizing and harassing the petitioner to work as Orderly had staged the
whole thing and shown the petitioner as missing and unauthorizedly absent
from duty despite fully knowing that the petitioner is undergoing treatment
at various hospitals for his mental ailment between the period from
February 16, 2001 to August 18, 2001. Furthermore, the petitioner was got
discharged from IHBAS on February 16, 2001 by two members of the
Force at the instance of his Commandant; and
(iv) Show cause notice dated June 02, 2001 which might have been sent
by the Commandant to his wife at his native address was never received by
the petitioner as he i.e. the petitioner was not present at his native address
but was undergoing treatment at various hospitals in National Capital
Region (NCR) around the time the show cause notice is stated to have been
dispatched by the Commandant at his native address.
11. Vide order dated March 01, 2002 the Appellate Authority dismissed
the appeal submitted by the petitioner.
12. Aggrieved by the aforesaid, the petitioner has filed the above
captioned petition under Article 226 of Constitution of India on August 27,
2002.
13. During hearing of the present petition following two submissions
were advanced by the counsel for the petitioner:-
A. In the decision reported as (1996) 7 SCC 546 Union of
India & Others vs. Ram Phal it was held by the Supreme Court
that „for exercising power under Section 11(2) of the BSF Act,
1968 an enquiry is required to be held and considering the
nature of the Force and the utmost necessity of maintaining
discipline giving a show cause notice cannot be regarded as
sufficient compliance with the principles of natural justice‟. Such
being the legal position, the Commandant of petitioner was duty
bound to conduct an „enquiry‟ before passing the order dated
August 18, 2001 dismissing the petitioner from service in
exercise of his power under Section 11(2) of the BSF Act, 1968.
Since no „enquiry‟ was conducted by the Commandant of
petitioner before passing the order dated August 18, 2001 the
same i.e. order dated August 18, 2001 stands vitiated and
deserves to be quashed.
B. Petitioner was not unauthorizedly absent from duty for the
period from February 16, 2001 to August 18, 2001 but was
undergoing treatment for his mental ailment in various hospitals
such as BSF Hospital, IHBAS, Safdarjung Hospital, PGIMS
Hospital and Swami Dayanand Hospital or working as runner to
Commandant Y.H. Hindral during said period. Commandant
Y.H. Hindral who was infuriated with the petitioner as the wife
of petitioner had complained to the superior authorities that the
Commandant was pressurizing and harassing the petitioner to
work as an Orderly had staged the whole thing and shown the
petitioner as missing and unauthorizedly absent from duty despite
employing him as his runner and fully knowing that the petitioner
was undergoing treatment at various hospitals for his mental
ailment between the period from February 16, 2001 to August 18,
2001. Furthermore, the petitioner was got discharged from
IHBAS on February 16, 2001 by two members of the Force and it
was wrongly recorded in the records of IHBAS that the petitioner
was got discharged by his brother Azad Singh at the instance of
his Commandant. To demonstrate that the recording contained in
the records of IHBAS that the petitioner was got discharged by
his brother Azad Singh is wrong, counsel drew our attention to a
certificate dated June 04, 2003 stated to have been issued by
Karnal Co-operative Bank Ltd, Karnal, Haryana recording
therein that Azad Singh, brother of petitioner, is working as
Branch Manager with the Bank and that he was on duty on
February 16, 2001 and remained in the bank in the night on that
day. Counsel argued that the brother of the petitioner was in
Karnal, Haryana on February 16, 2001 as recorded in the
certificate and thus could not have got the petitioner discharged
from IHBAS which is situated in Delhi on February 16, 2001 as
claimed by BSF. According to the counsel, the aforesaid chink
which has appeared in the claim of department/BSF that it was
the brother of petitioner who had discharged the petitioner from
IHBAS on February 16, 2001 lends credence to the version of the
petitioner that the whole thing was stage managed by
Commandant Y.H.Hindral who was nursing a grudge against the
petitioner.
14. In dealing with first contention advanced by the petitioner, it would
be most relevant to note Section 11 of the BSF Act, 1968 and the same
reads as under:-
"11. Dismissal, removal or reduction by the Director-General
and by other officers - (1) The Director-General or any
Inspector-General may dismiss or remove from the service or
reduce to a lower grade or rank or the ranks any person subject
to this Act other than an officer.
(2) An officer not below the rank of Deputy Inspector-General
or any prescribed officer may dismiss or remove from the service
any person under his command other than an officer or a
subordinate officer of such rank or ranks as may be prescribed.
(3) Any such officer as is mentioned in sub-section (2) may
reduce to a lower grade or rank or ranks any person under his
command except an officer or a subordinate officer.
(4) The exercise of any person under this section shall be
subject to the provisions of this Act and rules."(Emphasis
Supplied)
15. In exercise of powers conferred upon it by sub-sections (1) and (2) of
the BSF Act, 1968 the Central Government has framed BSF Rules, 1969.
Rule 177 whereof reads as under:-
"The Commandant may, under sub-section (2) of Section 11,
dismiss or remove from the service any person under his
command other than an officer or a subordinate officer."
16. In the decision reported as (1989) 3 SCC 314 Gouranga
Chakraborty vs. State of Tripura & Another the appellant therein, enrolled
as a Constable with BSF, was dismissed by his Commandant in exercise of
the power under Section 11(2) of the BSF Act, 1968 for having remained
unauthorizedly absent from duty for a prolonged period. The order
dismissing the appellant from service was assailed mainly on the ground
that said order was not made in accordance with the provisions of BSF Act
and Rules framed thereunder, inasmuch as the appellant was neither tried
nor awarded punishment by the Security Force Court as required under the
BSF Act. It was contended that unless and until the offence of absence
without leave or overstaying leave granted to a member of the Force,
without sufficient cause, is tried by the Security Force Court and
punishment is awarded therefore as provided in Sections 48 and 50 of the
BSF Act, the impugned order of dismissal from service of the appellant
passed by the Commandant is illegal and liable to be quashed. It was
further contended that the power of Commandant under Section 11(2) of
the Act read with Rule 177 of the Rules is subject to sub-section (4) of
Section 11 i.e. the exercise of this power is subject to the provisions of the
Act and Rules, that is to say, the Commandant is not competent to dismiss
a member of Force from service unless the Security Force Court has tried
him and awarded punishment in accordance with the procedure prescribed
by the Act and Rules framed thereunder.
17. The aforesaid contention(s) were repelled by the Supreme Court in
the following terms:-
"We have scrutinized 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 any
reasonable cause or for overstaying leave without sufficient
cause and holding them 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....In this case though no procedure has
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." (Emphasis Supplied)
18. Then came the decision of Supreme Court reported as (1996) 7 SCC
546 Union of India vs. Ram Phal. In said case, the respondent was enlisted
as a Constable in BSF. On December 21, 1983 respondent was found
absent in the Coy Roll. He was not to be found in the Unit lines as well.
When he did not report for duty for a prolonged period, on January 01,
1984, a notice was sent to him directing him to report for duty forthwith
but he did not turn up. One more notice was sent to respondent but there
was no response from him. Thereafter, an enquiry was ordered under
Section 62 of the BSF Act and ultimately respondent was declared to be a
deserter. On account of his continuous absence, on April 20, 1984, a show
cause notice was issued to the respondent calling upon him to show cause
why he should not be dismissed as his further retention in service was
considered undesirable, which notice was not responded to by the
respondent. Thereafter, on April 05, 1984, the Commandant passed an
order under Section 11(2) of the BSF Act dismissing respondent from
service. The order of dismissal was essentially challenged by respondent on
the ground that it was not within the competence of the Commandant to
pass dismissal order and that the penalty of dismissal from service could
not have been imposed without holding a trial by the Security Force Court
in the manner prescribed by the Act and the Rules. After noting its earlier
decision in Gouranga‟s case (supra), the Court held that the contentions
advanced by respondent that order of dismissal could not have been passed
without first holding a trial by the Security Force Court and that the
Commandant had no authority to pass an order dismissing respondent
under Section 11(2) of the BSF Act, 1968 are fallacious.
19. Thereafter, the Court noted that earlier there was no provision in the
BSF Act and Rules indicating the circumstances and manner in which
power conferred under Section 11(2) of BSF Act is to be exercised, but in
the year 1996 such a provision was incorporated in Rule 20 of the BSF
Rules. The Court then proceeded to note the relevant portion of Rule 20.
Significantly, the relevant portion of Rule 20 quoted by Supreme Court
reads as under:-
"(1) Where in the opinion of Director General a person subject
to the Act has conducted himself in such manner whether or not
such conduct amounts to an offence, as would render his
retention in service undesirable and his trial by Security Force
Court inexpedient, the Director General may inform the person
concerned accordingly.
(2) The Director General shall further inform the person
concerned that it is proposed to terminate his services either by
way of dismissal or removal.
(3) The Director General shall furnish the particulars of
allegations and the 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:
Provided that where the allegations have not been investigated,
the Director General shall furnish to the person concerned the
names of witnesses with a brief summary of the evidence and
copies of documents, if any, in support of the allegations.
(4)- (5) * * *
(6) The person concerned shall within seven days from the
receipt of information furnished to him under sub-rule (3) inform,
in writing, the Director General:
(a) his acceptance or denial of the allegations;
(b) any material or evidence he wishes to be considered in his
defence;
(c) names of witnesses he wishes to cross-examine; and
(d) names of witnesses whom he wishes to examine in his
defence.
(7) Where the person concerned has expressed a wish to
cross-examine any witness or to produce witnesses in defence,
the Director General shall appoint an enquiry officer who shall
be an officer superior to the person against whom it is proposed
to take action and had not taken any part previously in the
investigation into the matter." (Emphasis Supplied)
20. In view of provisions of Rule 20 noted by it, particularly clause 7
thereof, Supreme Court held that „after introduction of Rule 20 in the Rules
it cannot be validly contended that no enquiry be held while exercising the
power under Section 11(2)‟.
21. The Supreme Court then proceeded to consider whether the
procedure prescribed for exercising power under Section 11(2) was
followed by the Commandant in said case. In said regards, it would be
most apposite to note the following observations made by the Court:-
"We will now examine if the prescribed procedure was followed
in this case. The show-cause notice clearly appears to have been
issued in terms of sub-rule 1 of Rule 20. It reads as under:-
"You have been absent without leave with effect from
21-12-1983. 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. If you have anything to urge in your defence
or against the proposed action, you may do so before 4-
5-1984. In case no reply is received by that date, it will
be inferred that you have no defence to put forward."
8. The first sentence in the notice that "You have been absent
without leave with effect from 21-12-1983" satisfied the
requirements of sub-rule (3). When it further stated that "I am of
the opinion that because of this absence for such a long period,
your further retention in service is undesirable" it complied with
the requirement of sub-rule (1) and as required by sub-rule (2) it
was further stated therein that "I, therefore, tentatively propose
to terminate your service by way of dismissal". The respondent
was called upon to show cause within seven days as required by
sub-rule (6). No further enquiry was held; but we find that
nothing further was required to be done in this case. The
respondent did not reply to the notice. There was no denial of the
allegations and no request to hold an enquiry. Therefore, it was
not incumbent upon the Director General to appoint an enquiry
officer to conduct an enquiry in the manner prescribed by Rule
21. Thus the prescribed procedure was followed before passing
the dismissal order. The courts below have failed to appreciate
the correct position of law and the facts. It was therefore wrongly
held that the order of dismissal was illegal as it was not in
accordance with the provisions of the Act and the rules."
(Emphasis Supplied)
22. In a nutshell, the ratio laid down by the Supreme Court in Ram
Phal‟s case (supra) is as follows: It is incumbent upon a prescribed officer
to conduct an enquiry before dismissing/removing a person in exercise of
his power under Section 11(2) of the BSF Act, 1968 only when the
concerned person had responded to the show cause notice issued to him
and denied the allegations leveled against him. (The aforesaid ratio is based
upon the premise that Rule 20 of the BSF Rules, 1969 as noticed by
Supreme Court envisaged conduct of an enquiry in case where the person
issued with show cause notice denies the allegations leveled against him).
23. As already noted hereinabove, on August 18, 2001 in exercise of his
power under Section 11(2) of the BSF Act, 1968 the Commandant
dismissed the petitioner from service.
24. On the date of dismissal of petitioner from service i.e. August 18,
2001, the procedure for exercise of power under Section 11(2) of the BSF
Act, 1968 was laid down in Rule 22 of BSF Rules, 1969, which reads as
under:-
"22. Dismissal or 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 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 expedient or reasonably
practicable to give the persons concerned an opportunity of
showing cause.
(2) Where after considering the reports on the misconduct 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 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 defence:
Provided that the competent authority may withhold from
disclosure any such report or portion thereof, if, in his opinion,
its disclosure is not in public interest.
(3) The competent authority after considering his explanation
and defence 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 Subedar.
(4) All cases of dismissal or removal under this rule, shall be
reported to the Director-General."
25. Rule 22 of BSF Rules, 1969 noted above or any other provision
under the BSF Act or Rules envisage conduct of enquiry for exercise of
power under Section 11(2) of BSF Act, 1968. The ratio laid down by
Supreme Court in Ram Phal‟s case (supra) that it is incumbent upon a
prescribed officer to conduct an enquiry before dismissing/removing a
person in exercise of his power under Section 11(2) of the BSF Act is
premised upon the fact that Rule 20 of the BSF Rules, 1969 as noticed by
Supreme Court envisaged conduct of an enquiry in case where the person
issued with show cause notice denies the allegations leveled against him,
which is not the case with Rule 22 applicable in the instant case. In view
thereof, the first submission advanced by the petitioner that the
Commandant ought to have conducted an enquiry before dismissing the
petitioner from service in exercise of his power under Section 11(2) of the
BSF Act is clearly fallacious and therefore rejected.
26. At this stage we need to highlight that when the decision was
pronounced by the Supreme Court in Ram Phal‟s case (supra) Rule 20 as
it existed before it was substituted on May 29, 1990 was noted by the
Supreme Court. As of today, the substituted Rule 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 mis-conduct, 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 in-expedient 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 defence:
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 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
Central Government with the Officer‟s defence and the
recommendations 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 the Central Government under
the provision 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 defence, if any, or the judgement of the Criminal
Court, as the case may be, and the recommendation of the
Director-General, may 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."
27. This takes us to the second submission advanced by the petitioner.
28. Whereas the case of department is that after he was discharged from
IHBAS by his brother Azad Singh on February 16, 2001, the petitioner
neither reported for duty nor sent any intimating regarding his absence, the
case set up by the petitioner is that the whole thing is a sham and was stage
managed by/at the instance of the Commandant of petitioner, who was
infuriated with the petitioner. The petitioner pleads that on February 16,
2001 he i.e. the petitioner was discharged from IHBAS not by his brother
Azad Singh but by two BSF Constables at the instance of the
Commandant. Between the period from February 16, 2001 to August 18,
2001 when he was dismissed from service the petitioner was either
undergoing treatment at various hospitals or worked as a runner to his
Commandant. However, the Commandant wrongly showed the petitioner
as „absent from duty‟ for the period from February 16, 2001 to August 18,
2001. The petitioner further pleads that show cause notice dated June 02,
2001 was never received by him. To prove his version, the petitioner places
strong reliance upon the certificate dated June 04, 2003 stated to have been
issued by Karnal Cooperative Bank Ltd, Karnal, Haryana.
29. If the certificate dated June 04, 2003 is genuine, it would go a long
way in ascertaining the veracity of the version of petitioner. The moot
question is: Whether the certificate dated June 04, 2003 is genuine?
30. We think not.
31. The petitioner was dismissed from service on August 18, 2001.
Petitioner filed an appeal challenging his dismissal on November 17, 2001.
No certificate regarding the whereabouts of his brother Azad Singh on
February 16, 2001 was annexed by the petitioner along with his appeal.
The instant writ petition was filed by the petitioner on August 27, 2002.
Yet again, no such certificate was annexed by the petitioner along with the
present petition. Thereafter, rejoinder was filed by the petitioner on May
29, 2003, again sans any such certificate. There are no pleadings in the
petition or the rejoinder concerning the certificate in question. On July 16,
2005 the certificate dated June 04, 2003 was filed by the petitioner along
with an additional affidavit.
32. It takes no rocket science to figure that certificate regarding the
whereabouts of the brother of petitioner on February 16, 2001 was the best
evidence whereby the petitioner could prove his version. Despite thereto,
the petitioner did not produce such a certificate along with his appeal or
the instant petition. More than three years after the filing of the present
petition lighting dawned upon the petitioner and he filed the certificate
regarding the whereabouts of his brother on February 16, 2001. The timing
of the filing of the certificate dated June 04, 2003 by the petitioner raises
strong doubt about the veracity of the genuineness of said certificate. It
could be procured at any stage.
33. Further, a careful look at the version of the petitioner reveals that
there are chinks in his version.
34. The petitioner has annexed OPD slips issued by various hospitals
relating to the period February 16, 2001 to August 18, 2001 along with the
present petition to show that he was undergoing treatment during said
period.
35. If we were to accept aforesaid OPD slips at their face value, at best,
they would prove that the petitioner was availing treatment as an out-
patient. The question which would then arise would be: What prevented the
petitioner from reporting to his unit when he was availing treatment as an
out-patient? Perhaps, to avoid answering said question, the petitioner has
taken a stand that he was very much present in his unit between the period
from February 16, 2001 to August 18, 2001 and working as a runner to his
Commandant during said period. But, we find such a statement/assertion
conspicuously missing in the appeal filed by the petitioner. The omission of
the petitioner to state in his appeal that he was very much present in his
unit between the period from February 16, 2001 to August 18, 2001 and
working as a runner to his Commandant during said period raises strong
doubt about the veracity of said claim made by the petitioner. Besides,
why should the Commandant resort to a strategy of contrivance? The
question looms large without a convincing answer. That the Commandant
did so because petitioner‟s wife had complained to senior officers is too
tenuous a reply. Besides, from the chart we have prepared in paragraph 2
above we have good evidence of the fact that the petitioner was suffering
from some ailment which would keep him away from work at regular
intervals. The petitioner himself admits that he was suffering from a mental
ailment and in support whereof he has filed photocopies of OPD slips. The
one at page 36 of the writ record would reveal that the petitioner was
referred to psychiatric OPD; it appears to be a case where the doctors were
of the opinion that the so called physical illness evidenced by the
petitioner was the result of his psychosomatic condition. This falls in line
with the departmental version with proof that the petitioner was got
admitted at IBHAS from where his brother got him discharged.
36. Pertaining to the show cause notice dated June 02, 2001, we note that
it was sent at the permanent residential address of the petitioner. The
petitioner denies having received the said show cause notice.
37. A perusal of the record brings out that the show cause notice dated
June 02, 2001 was sent under Registered Post. The same was not received
back and thus there is a presumption of service. Further, we find that like
the show cause notice dated June 02, 2001, the order dated August 18,
2001, dismissing the petitioner from service was sent at the same
permanent residential address of the petitioner. The petitioner admits
having received the order dated August 18, 2001. Why the selective receipt
by the petitioner of documents sent at his permanent residential address?
The plea urged by the petitioner that the show cause notice dated June 02,
2001 was never received by the petitioner is thus negated by us.
38. All the aforesaid chinks appearing in his version compels us to hold
against the petitioner.
39. We dismiss the instant petition but refrain from imposing costs.
(PRADEEP NANDRAJOG)
JUDGE
(JAYANT NATH)
JUDGE
APRIL 16, 2014
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