Hirok Jyoti Das vs The Union Of India And Ors
2023 Latest Caselaw 1707 Gua

                                                                       Page No.# 1/7

GAHC010004502012




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

                               Case No. : WP(C)/1739/2012

            HIROK JYOTI DAS
            S/O- SRI SURENDRA MOHAN DAS, VILL.- GOAL GAON, P.O. and P.S.-
            JAMUGURIHAT, DIST.- SONITPUR, ASSAM, PIN- 784180.


            VERSUS

            THE UNION OF INDIA and ORS
            REP. BY THE SECY., MINISTRY OF HOME AFFAIRS, NEW DELHI- 110001.

            2:DIRECTOR GENERAL
             BORDER SECURITY FORCE
             BLOCK NO. 10
             CGO COMPLEX
             LODHI ROAD
             NEW DELHI- 110003.

            3:THE INSPECTOR GENERAL
             FRONTIER HEAD QUARTER
             JODHPUR
             RAJASTHAN
             PIN- 342304.

            4:THE COMMANDANT
             27 BATTALION
             BORDER SECURITY FORCE AT LOCATION
            THROUGH THE INSPECTOR GENERAL
             FRONTIER HEAD QUARTER
             JODHPUR RAJASTHAN
             PIN- 342304

Advocate for the Petitioner   : MR.H BEZBARUAH

Advocate for the Respondent : SC, C.G.C.

Page No.# 2/7

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM

Date of hearing : 02.05.2023.

Date of judgment :           02.05.2023.



                               JUDGMENT & ORDER (Oral)

Heard Mr. R. Mazumdar, learned counsel appearing for the writ petitioner. Also

heard Ms. B. Sarma, learned Central Govt. Counsel appearing for the respondents.

2. The writ petitioner herein, who is an ex-Border Security Force (BSF) Constable,

has approached this Court by filing the present writ petition assailing the order dated

12.11.2009 passed by the Commandant of the 27 th Battalion, BSF, dismissing the

petitioner from service inter-alia contending that the provisions of Rule 173(8) of the

Border Security Force Rules, 1969 has not been followed in this case and therefore,

the impugned order as well as the enquiry proceeding which had commenced on

05.09.2009 stands vitiated in the eye of law.

3. The facts of the case, in a nutshell, are that the petitioner had joined as a

Constable in the BSF in the year 2004. While in service, the petitioner had to avail 15

days casual leave with effect from 01.06.2009 to 20.06.2009 with two days in between

viz. 7th and 14th June being Sundays and 18 th to 20th of June being the joining period.

The petitioner claims that he was not keeping well on being diagnosed of being

suffering from hepatitis, associated with malaria and was advised bed rest for the Page No.# 3/7

period till 12.12.2009. However, the Commandant i.e. the respondent No.4 was of the

view that the petitioner had overstayed his leave and accordingly, ordered a One-

Man Court of Enquiry so as to enquire into the reason for such over stay. The Court of

Enquiry assembled on 05.09.2009 and after examining five witnesses and 11

documents, had come to an opinion that the petitioner may be declared as a

deserter and disciplinary action be initiated against him including issuance of

apprehension rule for recovery of the I-Card. Consequently, follow up action was

initiated which had culminated in the order of dismissal from service dated

12.11.2009. The appeal preferred by the petitioner against the order of dismissal from

service was rejected by the appellate authority by order dated 07.12.2010 pursuant

whereto, the petitioner had submitted a representation before the Director General

of BSF viz. respondent No.2 on 109.01.2011. However, the said representation was not

entertained by the respondent No.2 on the ground that the matter was already

closed. Situated thus, the petitioner has approached this Court by filing the instant

writ petition.

4. Mr. Mazumdar, learned counsel for the petitioner has argued that the

proceedings in the Court of Enquiry was conducted without serving any notice or

giving the petitioner an opportunity of being heard in the matter and hence, the

same was in clear violation of the provisions of Rule 173(8) of the BSF Rules, 1969.

Contending that the case of the petitioner is covered under the decision of this Court

rendered in the case of Satish Kumar (Force No.970027836 Ex ASI/Ministerial) vs.

Union of India and others reported in 2018 Legal Eagle (GAU) 780 wherein, a similar

procedure adopted against another BSF Constable in violation of Rule 173(8) of the Page No.# 4/7

Rules 1969 was set aside by the learned Single Judge and a direction was issued to

reinstate the constable back in service with liberty to initiate de novo Court of Enquiry

against the delinquent. Mr. Mazumdar submits that since the proviso to Rule 173(8)

was inserted with effect from 25.11.2011, the same would not have any retrospective

application in this case in view of the fact that the Court of Enquiry was commenced

on 05.09.2009 i.e. before the insertion of the proviso.

5. Ms. B. Sarma, learned Central Govt. Counsel appearing for the respondents

has invited the attention of this Court to the statements made in the counter-affidavit

in paragraph 6 and submits that in the present case a notice was issued to the

petitioner but despite receipt of the same he did not reply to the notice sent by the

authorities. As such, the ratio of the law laid down in the case of Satish Kumar (supra)

would not be applicable in this case. The learned Central Govt. Counsel has also

obtained instruction in response to a query made by this Court as recorded in the

order dated 25.04.2023 and submits that the decision of the Court rendered in the

case of Satish Kumar (supra) has been implemented by the authorities and the

concerned BSF constable had been reinstated in service in terms of the order of this

Court.

6. After hearing the submissions of the learned counsel for both the sides, the

core issue that arises for consideration in this case is as to whether, there was any duty

upon the Court of Enquiry to give an opportunity of being heard to the petitioner

under Rule 173(8) of the BSF Rules, 1969. The aforesaid issue has been decided by the

learned Single Judge in case of Satish Kumar (supra). The relevant observations made Page No.# 5/7

in the said decision are reproduced herein below for ready reference :-

"10. A perusal of Rule 173 of the BSF Rules, 1969 shows that the proviso to Rule 173 (8) has been inserted by S.O. 2628 (E) dated 25.11.2011. In the present case, the Court of inquiry had been held on 27.10.2008 and concluded on 01.11.2008, prior to insertion of the proviso to Rule 173 (8). Accordingly, the proviso to Rule 173 (8) is not applicable to the present case.

11. Rule 174 (2) clearly states that "in addition to a Court of inquiry required to be held under Section 62." The above clearly shows that Rule 173 & 174 (chapter XIV) of the BSF Rules, 1969 would be applicable to a Court of inquiry held under Section 62 of the BSF Act, 1968.

12. In view of the above facts, it is clear that it was mandatory on the part of the respondents to have issued a Show Cause Notice to the petitioner informing him that a Court of Inquiry was to be held against him and he was to have been made aware of all the charges that were framed against him so as to enable him to participate in the COI. The same not having been done, the entire proceedings in the Court of Inquiry and the consequential findings and decisions made stood vitiated. The consequence of the same is that the dismissal Order dated 19.10.2009 also stands vitiated. Accordingly, in view of the reasons stated above, the Order dated 19.10.2009, issued by the respondent No. 4 dismissing the petitioner from service is hereby set aside along with any consequential orders. The petitioner should accordingly be reinstated into service by the respondents.

13. This Court is not passing any directions with regard to any consequential benefits, entitlements or continuity of service of the petitioner in view of the fact that the Apex Court in the case of Metropolitan Transport Corporation Vs V. Venkatesan, reported in 2009 9 SCC 601, has held that there is a misconception that whenever reinstatement is directed, continuity of service and consequential benefits should follow, as a matter of course. The above being said, the respondents are given the liberty to initiate a de novo Court of Page No.# 6/7

inquiry against the petitioner after giving him notice of the proposed Court of Inquiry. The entitlements or consequential benefits of the petitioner, if any, will be made subject to the outcome of the Court of Inquiry, if the same is held against the petitioner. It is needless to add that a COI can be held in the absence of the petitioner, if the petitioner does not appear in the proposed COI after notice is issued to him."

7. In the present case also, the enquiry was evidently held under Section 62 of

the Border Security Force Act, 1968 and the procedure that was required to be

followed in the matter was laid down in Rule 173 of the Rules of 1969. Rule 173(8) of

the Rules of 1969 enjoins a duty upon the authorities to give an opportunity to the

constable of being heard in the matter. However, no such opportunity was

admittedly given to the petitioner in this case. It may be correct that some notice was

served upon the petitioner but that was after the Court of Enquiry was concluded

and the opinion was given by the Court of Enquiry against the petitioner. Service of

notice at that stage, in the opinion of this Court, would not be in compliance of the

mandate of Rule 173(8) of the Rules of 1969. What is required under the Rules is an

opportunity of being heard at the stage of the enquiry and not after conclusion of

the same. In view of the above, this Court is of the opinion that the case of the

petitioner is squarely covered by the decision rendered in the case of Satish Kumar

(supra).

8. The impugned order dated 12.11.2009 is therefore, set aside. The respondents

are directed to reinstate the petitioner back in service whereafter, they would be at

liberty to proceed de novo against the petitioner after complying with Rule 173(8) of Page No.# 7/7

the Rules of 1969. Since this is a very old matter and the petitioner has remained out

of service for more than 10 years, hence, it is ordered that the necessary steps under

this order be taken, as expeditiously as possible, but not later than four weeks from

the date of receipt of a certified copy of this order. Needless to say, since this Court

has granted liberty to the respondents to initiate de novo enquiry, the provisions of

the Rules, in force as on date, would only be applicable in this case.

With the above observation, the writ petition stands disposed of.

JUDGE

T U Choudhury/SrPS

Comparing Assistant