Mohammad Shafi Khan vs Union Of India & Ors
2023 Latest Caselaw 497 j&K/2

IN THE HIGH COURT OF JAMMU &KASHMIR AND LADAKH
                   AT SRINAGAR
                                               Reserved on:   13.04.2023
                                               Pronounced on: 26.04.2023

                          SWP No.1112/2007

MOHAMMAD SHAFI KHAN                                 ...PETITIONER(S)
             Through: - Mr. S. A. Qadiri, Advocate.

Vs.

UNION OF INDIA & ORS.                           ...RESPONDENT(S)
             Through: - Mr. Hakim Aman Ali, Advocate.

CORAM:       HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
                                 JUDGMENT

1) The petitioner has challenged order No.Estt./2021/193/04/5790-

94 dated 28.07.2004, issued by respondent No.2, whereby he has been

dismissed from service.

2) As per the case of the petitioner, in the year 1997, he was

appointed as a Constable in Border Security Force and he joined his

service in 193 BN of the said force. It is averred that the petitioner

applied for leave for a period of one month, whereafter he came back

to his home to look after his ailing father. It is further averred that the

petitioner applied for extension of leave through postal telegram and he

got his father admitted in a hospital at Soura, Srinagar. It has been

submitted that the petitioner belongs to a far-flung area and he did not

receive any communication or notice from respondent No.2. After

about one year when the petitioner approached the office of respondent

No.2, he was not allowed to join his duties. It is further averred that the

petitioner approached respondent No.1 i.e., Director General, BSF,

New Delhi, with a representation but no action was taken thereon.

Ultimately, the petitioner is stated to have served a legal notice to the

respondents whereafter the impugned order was served upon him

whereby he has been dismissed from service.

3) The petitioner has challenged the impugned order on the ground

that he had applied for extension of his leave because of domestic

problems as he could not join his duties due to the threats extended by

militants. It has been further submitted that while passing the impugned

order, the respondents have violated the principles of natural justice and

no enquiry has been conducted with regard to unauthorized absence of

the petitioner. It has been further submitted that the impugned order of

dismissal has been passed in violation of the provisions contained in

Article 311 of the Constitution of India, which provides that no person

should be dismissed from service unless he has been heard and enquiry

has been conducted after framing of charges against him.

4) The respondents have filed objections to the writ petition

wherein they have submitted that the writ petition suffers from latches

as the same has been filed after more than three years from the date of

passing of impugned order. It has been submitted that the petitioner had

sought one day casual leave to see his ailing sister which was granted

to him on 3rd February, 2004. It has been submitted that the petitioner

had to report back for duty on 4th February, 2004, but he overstayed his

leave without any information or without seeking extension of leave. It

has been submitted that a notice dated 9th February, 2004, was

addressed to the petitioner asking him to report back to his duty but no

response was received by the respondents. On 03.03.2004, the

competent authority is stated to have ordered a Court of Inquiry against

the petitioner for his unauthorized absence under Section 62 of BSF

Act. After initiating the Court of Inquiry, the warrant of arrest was

issued against the petitioner on 12.04.2004 through Superintendent of

Police, Anantnag, for arrest of the petitioner and for handing him over

to nearest BSF authority.

5) It has been submitted that on 12.05.2004, the petitioner had

addressed a communication to respondents in which he stated that he is

facing threats from the militants so he could not join his duties. In

response to the said letter, the respondents are stated to have informed

Headquarter BSF at Anantnag, to verify the threat perception of the

petitioner and take necessary steps for his protection and that of his

family. The matter is stated to have been taken up with Senior

Superintendent of Police, Anantnag, vide letter dated 11.06.2004.

When no response was received from the petitioner, a show cause

notice dated 28.06.2004 was issued to him asking him to furnish his

reply within a period of 30 days but the petitioner did not respond to

the same and, accordingly, on 28.07.2004, the impugned order of

dismissal under Section 11(2) of BSF Act read with Rule 177 of BSF

Rules was issued.

6) According to the respondents, sufficient opportunity was given

to the petitioner to defend himself prior to issuance of the impugned

order but he did not choose to do so, as a result of which exparte order

came to be issued against him. It has been submitted that the petitioner

was also given sufficient opportunity to represent and defend himself

before the Court of Inquiry for his unauthorized absence from duty for

174 days but he did not choose to avail of these opportunities. Thus,

according to the respondents, the principles of natural justice have been

adhered to in the instant case before issuing the impugned order of

dismissal.

7) I have heard learned counsel for the parties and perused the

pleadings. Learned counsel for the respondents has also produced the

relevant record and the same has been taken into consideration.

8) The main grievance of the petitioner is that before issuing the

impugned order of dismissal, the respondents have not adhered to the

principles of natural justice which are enshrined in the provisions

contained in the Border Security Force Act and the Rules framed

thereunder whereas the respondents have contended that all the

statutory safeguards were adhered to by them before issuing the

impugned order. In order to determine the question as to whether in the

instant case statutory safeguards have been adhered to by the

respondents before issuing the impugned order of dismissal, it would

be necessary to refer to the relevant provisions of the BSF Act and the

Rules framed thereunder.

9) Section 11 of the BSF Act deals with dismissal, removal or

reduction in rank of the persons subject to the said Act other than the

officers. It 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 the ranks any person under his command except an officer or a subordinate officer.

(4) The exercise of any power under this section shall be subject to the provisions of this Act and rules.

10) Sub-Section (2) quoted above, provides that an officer not below

the rank of Deputy Inspector General or any other prescribed officer

has power to dismiss from service any person under his command.

11) Rule 177 of the BSF Rules defines the prescribed officer under

Section 11(2) of the Act. It reads as under:

177. Prescribed officer under section 11(2).--The Commandant may, under sub-section (2) or section 11, dismiss or remove from the service any person under his command other than an officer or a subordinate officer. For the foregoing reasons, the petition is dismissed being without any merit.

12) From a combined reading of the provisions contained in Section

11(2) and Rule 177 (supra), it is revealed that the Commandant is

competent to dismiss or remove from service any person under his

command provided such a person is not an officer or a subordinate

officer. In the instant case, the petitioner happened to be a Constable

and, as such, respondent No.2, who has passed the impugned order, was

competent to pass such an order.

13) Section 62 of the BSF Act provides for inquiry into absence

without leave. It reads as under:

62. Inquiry into absence without leave.(1) When any person subject to this Act has been absent from duty without due authority for a period of thirty days, a court of inquiry shall, as soon as practicable, be appointed by such authority and in such manner as may be prescribed; and such court shall, on oath or affirmation administered in the prescribed manner, inquire respecting the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or necessaries; and if satisfied of the fact of such absence without due authority or other sufficient cause, the court shall declare such absence and the period thereof and the said deficiency, if any, and the Commandant of the unit to which the person belongs shall make a record thereof in the prescribed manner. (2) If the person declared absent does not afterwards surrender or is not apprehended, he shall for the purposes of this Act, be deemed to be a deserter.

14) From a perusal of the aforesaid provision, it is clear that once a

person subject to the BSF Act has remained absent from duty without

any authority for a period of thirty days, a Court of Inquiry has to be

appointed to inquire respecting the absence of such person in the

prescribed manner.

15) Rule 173 of the BSF Rules provides the procedure for Court of

Inquiry and it reads as under:

173. Procedure of Courts of Inquiry.- (1) The proceedings of a court of inquiry shall not be open to the public. Only such persons may attend the proceedings as are permitted by the court to do so.

(2) The evidence of all witnesses shall be taken on oath or affirmation.

(3) Evidence given by witnesses shall be recorded in narrative form unless the court considers that any questions and answers may be recorded as such. (4) The court may take into consideration any documents even though they are not formally proved. (5) The court may ask witnesses any questions, in any form, that they consider necessary to elicit the truth and may take into consideration any evidence, whether the same is admissible under the Indian Evidence Act, 1872 (1 of 1872) or not.

(6) No counsel, or legal practitioner shall be permitted to appear before a court of inquiry.

(7) Provisions of section 89 shall apply for procuring the attendance of witnesses before the court of inquiry. (8) Before giving an opinion against any person subject to the Act, the court will afford that person the opportunity to know all that has been stated against him, cross-examine any witnesses who have given evidence against him, and make a statement and call witnesses in his defence.

Provided that this provision shall not apply when such inquiry is ordered to enquire into a case of absence from duty without due authority.

(9) The answers given by a witness to any question asked before the court shall not be admissible against such a witness on any charge at any subsequent occasion except a charge of giving false evidence before such court.

16) As per the afore-quoted provision, the Court of Inquiry has to

record evidence of witnesses on oath or affirmation and it has also to

take into consideration the documents. The Court of Inquiry has the

power to to ask questions to elicit the truth. The counsels or legal

practitioners are not permitted to appear before the Court on Inquiry

and before giving its opinion against any person, the Court of Inquiry

has to afford an opportunity to such person of knowing as to what all

has been stated against him and to cross-examine witnesses who have

given evidence against him. Such person has also a right to lead

evidence in defence. However, as per proviso to sub-rule (8), this right

is not available in cases relating to absence from duty without due

authority. The said proviso has been inserted by S.O. 2628 (E), dated

25th Nov 2011, with effect from the said date, meaning thereby that in

the Court of Inquiries conducted in the cases relating to absence from

duty prior to the aforesaid date, the person concerned had the right to

cross-examine the witnesses and to lead evidence in defence.

17) Another provision, which is required to be noticed in the context

of this case, is Rule 22 of the BSF Rules, under which the impugned

order has been passed. It reads as under:

22. Dismissal or removal of persons other than officer 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 person concerned an opportunity of showing cause. (2) When 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 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 competent authority may withhold from disclosure any such report or portion thereof, if, in his opinion, its disclosure is not in the 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 a Subedar.

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

18) Since the impugned order has been passed by respondent No.2

in terms of sub-rule (2) quoted above, it would be apt to understand the

purport of the aforesaid provision. As per this provision, if the

competent authority, after considering the reports on the misconduct of

the person concerned, is satisfied that trial of such a person is

inexpedient or impracticable and in the opinion of the said authority his

further retention in service is undesirable, the authority has to inform

such person together with all reports adverse to him calling upon him

to submit, in writing, his explanation and defence. As per sub-rule (3)

(supra), the competent authority, after considering the explanation and

defence, is empowered to dismiss or remove such person from service

with or without pension.

19) Having noticed the legal framework applicable to the instant

case, let us now proceed to consider the facts which are available on

record so as to determine whether or not the relevant legal provisions

have been followed by the respondents while dismissing the petitioner

from service.

20) As already noticed, in as case of unauthorized absence, the

respondents were obliged to appoint a Court of Inquiry and to hold an

inquiry respecting the absence of the petitioner from duty as per the

procedure prescribed under Rule 173 of the BSF Rules. The record

produced by the respondents shows that the Court of Inquiry was

appointed vide order dated 3rd March, 2004. The record contains the

remarks of the Commandant on the recommendations of the Court of

Inquiry. As per the said remarks, the Commandant, while agreeing with

the findings and opinion of the Court of Inquiry, directed that the cost

of Government clothing/kit item and mess dues be recovered from the

pay and allowances of the petitioner and apprehension roll and show

cause notice be served upon him under the BSF Act and Rules.

However, the documents relating to the proceedings of Court of Inquiry

are not available in the record produced by the respondents. In the

absence of these documents, it is not clear as to whether the proceedings

of the Court of Inquiry have been conducted in the manner prescribed

under Rule 173 of the BSF Rules. In the absence of such record, it

cannot be ascertained whether the provisions contained in Rule 173(8)

of the BSF Rules, which was applicable at the relevant time, have been

adhered to by giving the petitioner right to cross-examine the witnesses

and the right to lead evidence in defence. In fact, in order dated 3 rd

March, 2004, whereby Court of Inquiry has been appointed, it has been

specifically provided that the Court of Inquiry will apply the provisions

of Rule 173(8) wherever required. So, in the absence of any record to

the contrary, the contention of the petitioner that he was not associated

during the proceedings of the Court of Inquiry, appears to be well-

founded.

21) According to the respondents, pursuant to the Court of Inquiry,

apprehension roll and show cause notice was issued to the petitioner.

The respondents have placed on record letter dated 12 th April, 2004,

addressed by respondent No.2 to Superintendent of Police, Anantnag,

requesting him to arrest the petitioner and hand him over to nearest BSF

authority. The record shows that vide letter dated 23.04.2004, the

Superintendent of Police, Anantnag, has asked respondent No.2 to

forward the warrant of arrest, whereafter the respondents are stated to

have forwarded the warrant of arrest vide their communication dated

25th May, 2004, to the Superintendent of Police, Anantnag. There is

nothing on record to show as to what action was taken on the said

warrant nor there is anything on record to show as to whether the matter

was pursued further by the respondents with the Superintendent of

Police, Anantnag.

22) The record further shows that the petitioner had addressed a

communication dated 12th May, 2004, to the respondents, in which he

had intimated that he is facing threat from the militants and that his

house was gutted by the militants. He had also made a request to the

respondents to issue a call letter in his favour so that he could join his

duties. In response to the said letters, the respondents are stated to have

addressed communication dated 4th June, 2004, to Sector Headquarter

BSF, Anantnag and communication dated 11th June, 2004, to Senior

Superintendent of Police, Anantnag, requesting them to verify the

threat perception and provide adequate protection to the petitioner.

However, the response of these two authorities is not on record nor the

respondents have stated anything in their reply as to what action was

taken by the Sector Headquarter BSF or Senior Superintendent of

Police, Anantnag. Again, it appears that the respondents have only

issued communications to various authorities upon receiving the

application dated 12.05.2004 from the petitioner, without pursuing the

matter and without ascertaining the truth or falsehood of the concern

raised by the petitioner in his aforesaid application. The respondents, it

seems, have approached the case of the petitioner in a casual manner

without taking any concrete action in the matter.

23) Ultimately, the respondents issued the show cause notice dated

28th June, 2004, to the petitioner asking him to send his defence against

the proposed dismissal within 30 days of receipt of the said notice. The

contents of the show cause notice are reproduced as under:

Based on the reports available, it is noted that you have been illegally without sufficient cause overstaying from leave w.e.f. 04-02-04. The proceedings of the Court of Inquiry held in accordance with Sec 62 of the BSF Act to Investigate into the said illegal absence has also found and declared that you have been illegally without sufficient cause overstaying from leave w.e.f. 04-02-04.

2. Having considered the matter of your said continued illegal absence from duty, I am satisfied that your trial by a Security Force Court is not only inexpedient but also impracticable and that your further retention in the service is undesirable. Accordingly, in the exercise of the powers vested in me by Sub Sec (2) of Sec 11 of the BSF Act read with Rule 177 of the BSF Rules and in conformity with Sub Rule (2) of Rule 22 of the BSF Rules you are hereby called upon to show cause why you should not be dismissed from the service for your aforesaid act.

3. If you have anything to urge in your defence against the proposed dismissal from the service, you

may do so within 30 days of the receipt of this notice failing which it will be assumed that you have nothing to urge in your defence against the proposed action and further decision in the matter will be taken.

4. A copy of the court of Inquiry (and other report) referred to in Para 1 above is (are) enclosed for your reference.

5. Please acknowledge receipt of this show cause notice.

24) When the petitioner did not file any response to the show cause

notice, the respondent No.2 issued the impugned order, which reads as

under:

OFFICE OF THE COMMANDANT : THQ 193 BN BSF C/O 56 APO

ORDER ORDERS BY SHRI AMRIK SINGH COMMANDANT 193 BN BSF IN THE CASE Or NO. 97403588 CONSTABLE MOHD SAFI KHAN OF 193 BN BSF I have examined the matter relating to the without sufficient cause over stayal of leave by No. 97403588 Constable Mohd Safi Khan of 193 BN BSF

2. As mandated vide Sub Rule (2) of Rule 22 of the BSF Rules, the said No. 97403588 Constable Mohd Safi Khan of 193 BN BSF was given an opportunity to show cause vide 193 Bn BSF notice No. Estt/2021/193 Bn/2004/4331 dated, 28.06.2004 against his proposed dismissal from the service. 97403588 Constable Mohd Safi Khan of 193 BN BSF however, has failed to submit any reply to the said show cause notice till date.

3. Considering the matter in its entirety. I am satisfied that 97403588 Constable Mohd Safi Khan of 193 BN BSF has been without sufficient cause over staying leave since 04.02.2004 I am also satisfied that his aforesaid continued illegal absence is contrary to the expected norms of and is detrimental to the Force discipline, which make his further retention in the Force es undesirable, I. therefore, direct that the said No. 97403588 Constable Mohd Safi Khan of 193 BN BSF be dismissed from the service w.e.f 29.07.2004.

25) The moot question which is required to be determined is whether

the show cause notice dated 28th June, 2004, has been actually served

upon the petitioner and whether the impugned order of dismissal has

been served upon the petitioner. According to the respondents, they

have sent both these documents to the petitioner through registered

post. The record does not contain any postal receipt that would have

raised a presumption of service of these two vital documents upon the

petitioner, who has categorically denied having received the same.

Even the earlier show cause notices stated to have been issued by the

respondents to the petitioner have allegedly been sent through

registered post without there being any postal receipts on the record of

the file. The respondents issued warrant of arrest against the petitioner

and sent the same to Superintendent of Police, Anantnag, for execution

but they did not pursue the case so as to ascertain the fate of such

warrant. The respondents also issued a communication to the

Commandant of Sector Headquarter of BSF at Anantnag but did pursue

the matter with him. The respondents issued show cause notices from

time to time to the petitioner including the vital show cause notice dated

28th June, 2004 in terms of sub-rule (2) of Rule 22 of the BSF Rules

without maintaining the proof with regard to service of the same. Same

is the fate with regard to service of impugned dismissal order.

26) In the absence of any cogent material on record to show that the

respondents have either informed the petitioner to participate in the

Court of Inquiry or served the notice of show cause for dismissal in

terms of Rule 22(2) of the BSF Rules, it can safely be stated that the

respondents have not adhered to the principles of natural justice as are

intrinsic to the provisions contained in the BSF Act pertaining to

holding of Court of Inquiry and the provisions contained in the Rules

relating to procedure for dismissal of its employees from service.

27) This Court in the case of Manzoor Ahmad Shah vs. Union of

India & Ors. 2009(1) S.L.J 95, while interpreting the provisions

contained in Rule 22(2) of the BSF Rules, observed as under:

"7.The rights of petitioner as an employee of the respondents are protected by the Constitution and by Statutory rules. The authority if satisfied on the basis of material available to him can take recourse to under sub-rule (2) of Rule 22 after recording reasons for doing the same and dismiss him from service without conducting the regular trial/enquiry.

8. The petitioner's status as an employee of the respondents is guaranteed under Article 311 of the Constitution and the BSF Act and Rules. The petitioner can be dismissed from service only in compliance of the mandate of Constitution and in compliance of the BSF Act and Rules."

28) From the above it is clear that even where the competent

authority is of the opinion that further retention of a person in service

subject to BSF Act is undesirable and it is expedient or impracticable

to hold trial of such a person, it is obligatory for the competent authority

to inform him about the same and provide him with all the adverse

reports so as to enable him to file his defence or explanation. Without

doing so, the order of dismissal cannot be passed against such a person.

29) In the instant case, as already noted, there is nothing on record to

show that the show cause notice in terms of Rule 22(2) of the BSF Rules

was actually received by the petitioner. In fact, the show cause notice

has been issued on 28th of June, 2004, calling upon the petitioner to file

his defence within 30 days of receipt of said notice. The notice is stated

to have been sent to the petitioner through registered post. The

impugned order of dismissal of petitioner from service has been issued

on 28th July, 2004, which is exactly after expiry of 29 days. Even if it is

assumed that the petitioner did receive the show cause notice dated 28th

June, 2004, it is improbable that he would have received the same on

28th of June itself. Thus, the respondents have, without even waiting for

expiry of the notice period of 30 days, proceeded to pass the impugned

order on 28th July, 2004, thereby rendering the same unsustainable in

law.

30) From the foregoing analysis of the facts and the law on the

subject, it is clear that the respondents have observed the mandate of

Article 311 of the Constitution, the principles of natural justice and the

mandate of the provisions contained in BSF Act and the Rules framed

thereunder in breach, as a result of which the impugned order of

dismissal of the petitioner from service is rendered illegal.

31) The contention of the respondents that the writ petition is liable

to be dismissed on account of delay and latches, also appears to be

without merit. This is so because there is no material on record to show

that the impugned order of dismissal was actually served upon the

petitioner. In the absence of any proof of receipt of the impugned order

by the petitioner, his assertion that he did not have the knowledge of

the impugned order appears to be well-founded. Thus, it cannot be

stated that he has approached this Court belatedly.

32) For the foregoing reasons, the petition is allowed and the

impugned order of dismissal is quashed. However, it shall be open to

the respondents, if they so desire, to initiate fresh proceedings against

the petitioner strictly in accordance with the BSF Act and the Rules

framed thereunder and pass appropriate orders, as may be warranted

under law. In case the respondents do not propose to initiate fresh

proceedings against the petitioner, he shall be reinstated in service

without paying him the salary for the period he has not actually worked.

However, in that case, the said period shall count for pensionary and

other service benefits of the petitioner.

33) The record be returned to learned counsel for the respondents.

(Sanjay Dhar) Judge SRINAGAR 26 .04.2023 "Bhat Altaf, PS"

                   Whether the order is speaking:     Yes/No
                   Whether the order is reportable:   Yes/No