Sirajul Qureshi vs The Union Of India And 8 Ors
2022 Latest Caselaw 1591 Gua

                                                                  Page No.# 1/7

GAHC010178102019




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/5744/2019

         SIRAJUL QURESHI
         S/O-LATE SAJJAD QURESHI, R/O- VILL- LOKRA DAFALA PATHAR, P.O AND
         P.S- CHARIDUAR, PIN- 784103, DIST- SONITPUR, ASSAM,



         VERSUS

         THE UNION OF INDIA AND 8 ORS
         REP. BY THE SECRETARY, MIN OF HOME AFFAIRS, GOVT OF INDIA, NEW
         DELHI-

         2:THE DIRECTOR GENERAL
          ITBP FORCE
          BLOCK NO. 02
          CGO COMPLEX
          LODHI ROAD
          NEW DELHI- 110003

         3:THE INSPECTOR GENERAL
          ITBP FORCE
          FRONTIER HQ
          ITANAGAR- 791111
          DIST- PAPUMPARE
         ARUNACHAL PRADESH

         4:THE DIG
          ITBP FORCE
          SECTOR HQ
          ITANAGAR- 791111
          DIST-PAPUM PARE
         ARUNACHAL PRADESH

         5:THE COMMANDANT
                                                 Page No.# 2/7

             20BN
             ITBP FORCE
             C/O- 99APO
             P.O- AALO
             DIST- WEST SIANG
             ARUNACHAL PRADESH
             PIN- 791001

            6:THE SECOND IN COMMAND
             20BN
             ITBP FORCE
             C/O- 99 APO
             P.O- AALO
             DIST- WEST SIANG
            ARUNACHAL PRADESH
             PIN- 791001

            7:THE STATE OF ASSAM
             REP. BY THE ADDL CHIEF SECRETARY
             HOME AND POLITICAL DEPTT
             GOVT OF ASSAM
             DISPUR
             GHY- 06

            8:THE OFFICER IN CHARGE
             CHARIDUAR POLICE STATION
             PIN- 784103
             DIST- SONITPUR
            ASSAM

            9:THE POST MASTER
             CHARIDUAR POST OFFICE
             GOVT OF INDIA
             CHARIDUAR- 784103
             DIST- SONITPUR
            ASSA

Advocate for the Petitioner   : MR B ACHARYYA

Advocate for the Respondent : ASSTT.S.G.I.
                                                                    Page No.# 3/7



                                 BEFORE
               HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                 ORDER

Date : 12.05.2022

Heard B. Acharyya, learned counsel for the petitioner. Also heard Mr. R.K. Dev Choudhury, learned ASGI appearing for all the respondents.

2. The petitioner who was a Constable (General Duty) in the 20 th Battalion of the Indo Tibetan Border Police (ITBP) Force was declared a deserter, vide order dated 12.02.2016 issued by the Court of Inquiry, under Section 74 of the Indo-Tibetan Border Police Force Act, 1992, hereinafter referred to as the "1992 Act". The petitioner was thereafter removed from service, vide order dated 01.07.2016 issued by the

Commandant of the 20th Battalion, ITBP Force on the basis of the order dated 12.02.16 issued by the Court of Inquiry,.

3. The admitted facts of the case is that the petitioner was unauthorizedly absent from 17.08.2015 till 01.07.2016, i.e. 319 days. The Court of Inquiry in it's order dated 12.02.2016 declared the petitioner to be a deserter under Section 74(2) of the 1992 Act.

4. The petitioner's counsel submits that in terms of Rule 174 of the Indo-Tibetan Border Police Force Rules, 1994, hereinafter referred to as the "1994 Rules", which is the procedure to be followed by a Court of Inquiry, the petitioner is required to be served notice, to enable him to take part in the proceedings before the Court of Inquiry. However, the same was not done by the respondents. He also submits that in terms of Page No.# 4/7

Section 51 of the 1992 Act, the punishment of removal from service can only be done by a Force Court which is constituted under Chapter-VII of the 1992 Act. He submits that the impugned order of removal dated 01.07.2016 having been issued by the Commandant and not by a Force Court, the impugned order of removal dated 01.07.2016 should be set aside.

5. The petitioner's counsel further submits that in terms of Rule 20(2) of the 1994 Rules, the petitioner is to be given an opportunity to submit his explanation and defence in writing with respect to all the reports made adverse to him by the Force Court. The petitioner's counsel submits that the procedure that has been enumerated in the 1992 Act and 1994 Rules not having been followed, the impugned order dated 12.02.2016 issued by the Court of Inquiry and the impugned order of

removal dated 01.07.2016 issued by the Commandant of the 20 th Battalion, ITBP Force should be set aside.

6. Mr. R.K. Deb Choudhury, learned ASGI submits that notices were issued to the petitioner to enable him to participate in the proceedings before the Court of Inquiry. However, the petitioner did not participate in the proceedings before the Court of Inquiry.

7. The learned ASGI also submits that the proceedings before the Force Court is not mandatory in terms of Rule 20(2) of the 1994 Rules, wherein it states that the authority as specified in Rule 17, which in this particular case would be the Commandant, is satisfied that the trial of such a person by the Force Court is inexpedient or impracticable, but is of the opinion that his further retention in the service is undesirable, it shall so inform him together with all adverse reports and he shall be Page No.# 5/7

called upon to submit his explanation and defence. Thereafter, after considering his explanation and defence as the case may be, the petitioner could be removed from service. The learned ASGI submits that the findings of the Court of Inquiry, as reflected in the order dated 12.02.2016, was sought to be furnished to the petitioner vide publication of notice. He submits that newspaper publication of the notice was issued in the Assam Tribune, Axomia Pratidin and Hamro Prajasakti, i.e. English, Assamese and Nepali newspapers on 30.04.2016. However, the petitioner did not make any attempt to contact the respondents, due to which the respondents had no other alternative course but to issue the order of removal, as the trial of the petitioner was impracticable in his absence, besides his further retention in service being undesirable.

8. I have heard the learned counsels for the parties.

9. Section 51 of the 1992 Rules provides that punishments may be inflicted in respect of offences committed by persons subject to the 1992 Act and convicted by the Force Courts, which includes removal from service, as provided in Section 51 (d) of the 1992 Act. However, Rule 20(2) of the 1994 Rules provides that if the authority under Rule 17 is satisfied that the trial of the delinquent personnel by the Force Court is inexpedient or impracticable and is of the opinion that his further retention in the service is undesirable, he may dismiss or remove the delinquent personnel from service, after complying with the requirements laid down in the Rule 20(2) of the 1994 rules.

10. Rule 20 of the 1994 Rules is reproduced below:

"20. Termination of service of persons, other than officers on account of misconduct:

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.-

(I) 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 of a Force Court:or

(b) where the authority as specified in rule 17 is satisfied that, for reasons to be recorded in writing, it is not expedient or reasonably practicable to give the person concerned an opportunity of showing cause.

(2) When After considering the reports on the misconduct of the person concerned,the authority as specified in rule 17 is satisfied that the trial of such a person by the Force Court is inexpedient or impracticable, but is of the opinion, that his further retention in 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 defence:

Provided that the authority as specified in rule 17 may withhold from disclosure any such report or portion thereof, if in his opinion, its disclosure is not in the interest of security of the state.

(3) The authority as specified in rule 17 After considering his explanation and defence, if any, or the judgment of the criminal court, as the case may be, may dismiss or remove him from the service.

(4) All cases of dismissal or removal, under this rule, shall be reported to the Director General."

11. Mr. RKD Choudhury, learned ASGI has brought the official records and on perusal of the same, this Court finds that though the competent authority has discussed the unauthorised absence of the petitioner, the competent authority, under Rule 17 of the 1994 Rules, i.e. the Commandant, has not recorded his satisfaction to the effect that the trial of the petitioner is inexpedient or impracticable as required under Section 20(2) of the 1994 Rules. As the provision of Section 20(2) of the 1994 Rules has not been followed by the authority, the Commandant could not have removed the petitioner from service under Rule 20(2) of the 1994 Rules. Further, the petitioner has not been removed from Page No.# 7/7

service in terms of Section 51 of 1992 Act. Consequently, the order

dated 01.07.2016 issued by the Commandant of the 20 th Battalion, ITBP Force removing the petitioner from service is hereby set aside. The petitioner should be re-instated into service. Liberty is however given to the respondents to initiate a trial by the Force Court, with regard to the unauthorised absence of the petitioner and to take a decision on the question of payment of backwages of the petitioner and other consequential benefits.

Writ petition is accordingly disposed of.

JUDGE

Comparing Assistant