Jharkhand High Court

The Union Of India Through The ... vs Petitioner/ on 17 August, 2021

                                 [1]


        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           L.P.A. No.751 of 2019
                                   WITH
                   I.A. Nos.3362 of 2021 & 10305 of 2019
      1. The Union of India through the Secretary, Ministry of Home
         Affairs, North Block, Raisina Hill, P.O. & P.S.-North Block, New
         Delhi.

      2. The Director General of Border Security Force, Force Headquarter,
         Block No.10, CGO Complex, Lodhi Road, P.O. & P.S.-Lodhi
         Colony, New Delhi.

      3. The Inspector General, Border Security Force, F.T.R. HQ BSF,
         P.O. & P.S.-Humama, District-Badgam, Kashmir.

      4. The Deputy Inspector General, Border Security Force, F.T.R. HQ,
         P.O. & P.S.-Humama, District-Badgam, BSF Kashmir.

      5. The Commandant, Bn HQ 74 Bn BSF, Bhitaura, P.S.-Fatehganj,
         Bareilly (UP).

         All are duly represented through The Deputy Inspector General,
         Border Security Force, Sector Headquarter, Gokulnagar, Distt-
         Sepahijala (Tripura).

                                                ... ... Respondents/Appellants
                                       Versus

         Jablain Kullu w/o late Naiman Kullu, resident of Village-Keondih,
         P.O. Keondih, P.S. Simdega, District-Simdega, State: Jharkhand.

                                                  ...... Petitioner/Respondent
                                     -------

    CORAM:         HON'BLE THE CHIEF JUSTICE
             HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                                     -------

For the Appellants : Mr. Pratyush Kumar, C.G.C.

----------------------------

ORAL JUDGMENT 04/Dated 17th August, 2021 [2]

1. With the consent of the parties, hearing of the matter has been done

through video conferencing. They have no complaint whatsoever about

any audio and video quality.

I.A. No.3362 of 2021:

2. This interlocutory application has been filed for amendment of ground

(B) taken in the memorandum of appeal as according to the appellants,

ground (B) is not the complete sentence and the said error has been

committed inadvertently.

3. Accordingly, since the amendment is very much formal in nature, we

allow the appellants to amend ground (B), as has been stated in

paragraph-7 of the present interlocutory application.

4. I.A. No.3362 of 2021 stands disposed of accordingly.

I.A. No.10305 of 2019:

5. This interlocutory application has been filed for condoning the delay of

61 days, which has occurred in preferring this appeal.

6. Heard learned counsel for the appellants.

7. Having regard to the averments made in this application, we are of the

view that the appellants were prevented by sufficient cause from

preferring the appeal within the period of limitation.

8. Accordingly, I.A. No.10305 of 2019 is allowed and the delay of 61 days

in preferring the appeal is condoned.

[3]

L.P.A. No.751 of 2019:

9. The instant intra-court appeal is under Clause 10 of the Letters Patent

directed against the order/judgment dated 31.07.2019 passed by learned

Single Judge of this Court in W.P.(S) No.2125 of 2013 whereby and

whereunder the order dated 29.12.2008, by which the husband of the

writ petitioner was dismissed from service, has been quashed remitting it

before the disciplinary authority to take fresh decision on the quantum of

punishment within stipulated period.

10. The brief facts of the case which is required to be enumerated read as

hereunder:

The husband of the writ petitioner joined the services of Border

Security Force (BSF) in 74 Battalion BSF in Sanant Nagar, Srinagar

(J&K) on 21.04.1985 in training Centre, Meru, Hazaribagh and

thereafter he was sent to Jalandhar, Punjab where he remained for 16

years upto 2001. Thereafter he was posted at Hisar (Haryana) and

thereafter from one place to another he was posted at Bareilly in the

State of Uttar Pradesh working as such there, he went on 60 days of

leave which sanctioned w.e.f. 04.02.2008 and he was supposed to join

the duties on 04.04.2008 but due the physical ailment he could not join

his duties since he got examined and treated diseases like Tuberculosis,

Meningitis complicated with hydrocephalux and also suffered with

mental disorientation.

However, he joined in the Battalion in the month of February,

2009 and a show cause was issued to him vide order dated 02.09.2008

asking explanation why action be not taken dismissing him from service [4]

as also proceeding should not be initiated against him under Rule 22 of

The Border Security Force Rules, 1969.

The husband of the writ petitioner apprised the entire facts

about his physical sufferings but without appreciating the aforesaid

ground, he was dismissed from service vide order dated 29.12.2008 by

striking his name from the strength of 74 Battalion BSF w.e.f.

29.12.2008. It is the ground of the writ petitioner that the order of

dismissal dated 29.12.2008 had not been confirmed by the superior

authority, as such, could not be given effect and on this ground, the order

of dismissal was not sustainable. The employee, namely, Naiman Kullu

has challenged the order of dismissal by invoking the jurisdiction of this

Court conferred under Article 226 of the Constitution of India but in

course of pendency of the writ petition, he died, therefore, he was

substituted by his wife, namely, Jablain Kullu vide order dated

24.02.2014.

The ground has been taken in assailing the order of dismissal

that the order of punishment is without following the procedure as also it

is disproportionate to the alleged irregularity committed. The learned

Single Judge on contest has passed an order for quashing the order of

dismissal on the ground of quantum and remitted the matter before the

concerned competent authority to take fresh decision, which is the

subject matter of the instant intra-court appeal.

11. Mr. Pratyush Kumar, learned counsel for the appellant-Union of India

has raised the issue that the learned Single Judge has not held in the

order that what led the Court to come to the conclusion that the

punishment imposed against the husband of the writ petitioner is [5]

shockingly disproportionate, as such, the said order being non-speaking,

is not sustainable in the eye of law.

12. This Court has heard the learned counsel for the appellants on merit on

his consent and confronted with certain questions with respect to the

process which was required to be followed before dismissing the

husband of the writ petitioner from service because this Court has found

from Annexure-1 appended to the writ petition, which is a show cause

dated 02.09.2008, that the reference of Rule 22 of the BSF Rules has

been made. It further appears to this Court from Annexure-2 that the

authorities have exercised the power as conferred to them under the

provision of sub-rule (2) of Rule 22 of the BSF Rules, 1969. This Court

has specifically put questions upon the learned counsel for the appellant-

Union of India that:

(i) as to whether any decision has been taken by the concerned

authority in view of Section 62 of The Border Security Force Act,

1968 by declaring the husband of the writ petitioner as a deserter.

(ii) as to whether before resorting to the provision of Rule 22 of the

BSF Rules, 1969 any procedure laid down therein has been

followed or not.

13. Mr. Pratyush Kumar, learned counsel for the appellant has submitted that

the order of dismissal has been passed in view of the provision of sub-

rule (2) of Rule 22 which confers power upon the competent authority to

pass an order of dismissal or removal after considering the reports on the

misconduct of the person concerned and if the competent authority is

satisfied that the trial of such a person is inexpedient or impracticable, [6]

and at the same time, 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. The competent authority has exercised the

aforesaid power and on being satisfied that the trial of such person is

inexpedient or impracticable, only thereafter the order of dismissal has

been passed.

14. In support of his argument, learned counsel for the appellant has relied

upon a judgment rendered by the Hon'ble Apex Court in Union of India

and Ors. vs. Ram Phal, (1996) 7 SCC 546.

His further argument is that the learned Single Judge ought to

have given a finding that what led the Court in coming to the conclusion

that the punishment inflicted is disproportionate to the offence

committed.

15. This Court, before appreciating the argument advanced on behalf of the

learned counsel for the appellant, deems it fit and proper to refer the

provisions which are relevant in the given fact of the case. The provision

of Section 62 of The Border Security Force Act, 1968, for ready

reference, is being reproduced hereinbelow:

"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, ammuinition, equipment, instruments, clothing or necessaries; and if satisfied of the fact of such absence without due authority or other sufficient [7]

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."

It is evident from the aforesaid provision that 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, ammuinition, 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. Further, it has been provided that 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.

Thus, it is evident that if any person serving under the BSF

remains absent for a period of 30 days without due authority a Court of

inquiry is imposed by reaching to the conclusion for declaring that

person as a deserter.

[8]

16. It further requires to refer herein the provision of Rule 22 of the BSF

Rules, 1969, which read as hereunder:

"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 the Director-General.

It is evident from the aforesaid provision that when there is a

proposal 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 [9]

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;

(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.

Sub-rule (2) thereof provides that 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. 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 and all cases of

dismissal or removal under this rule, shall be reported to the Director--

General, meaning thereby, that the process which is required to be

followed has been stipulated under the provision of Rule 22 of the Rules,

1969, however, there is a power conferred upon the competent authority [10]

to dismiss or remove the person other than the officer on account of

misconduct in pursuance to the provision of sub-rule (2) of Rule 22

thereof but before resorting to the said provision, there are two

conditions, i.e., (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.

It further appears from the provision of sub-rule (2) that there

must be a report of misconduct of the person concerned which is

required to be considered by the competent authority and if 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 and

further all cases of dismissal or removal under this rule, shall be reported

to the Director-General.

17. In the given fact of the case, the husband of the substituted writ

petitioner had overstayed by not reporting to the duty, therefore, a notice

of show cause was given to initiate a proceeding in accordance with the

provision of Section 62 of the BSF Act and to investigate into the illegal

absence. It further appears from the show cause notice that only after [11]

making reference of the provision of Section 62 of the BSF Act, the

concerned competent authority had invoked the jurisdiction conferred to

it under the provision of Rule 22 of the BSF Rules, 1969 but the

statutory provision is otherwise. It has been provided, as would be

evident from Section 62 of the BSF Act, 1968, that in a case of overstay

for a period of 30 days, a Court of inquiry shall be initiated and 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 but nothing has been brought on record declaring the husband of

the substituted writ petitioner as deserter. Therefore, merely on the basis

of issuance of notice of making reference of the provision of Section 62

of the BSF Act, 1968 it cannot be said to be sufficient compliance of the

statutory provision as conferred under Section 62 thereof.

Further, the order of dismissal has been passed by the

competent authority by invoking the jurisdiction conferred under the

provision of Rule 22, more particularly, sub-rule (2) thereof. The order

of dismissal has been annexed as Annexure-2 to the writ petition

wherefrom it is evident that the opportunity to show cause was given to

the husband of the substituted writ petitioner before taking decision of

dismissal from service in view of the provision of Rule 22 of the BSF

Rules, 1969 and thereafter the husband of the substituted writ petitioner

had been dismissed from service but we have gone through the statutory

provision as contained under Rule 22, the statutory requirement, which

ought to have been fulfilled as per the aforesaid provision, is that before

resorting to the provision of sub-rule (2) of Rule 22 a report is required

to be placed before the competent authority for its consideration and if [12]

on consideration of the said report, the competent authority comes to the

opinion that the trial of such person is inexpedient or impracticable, but,

is of the opinion that his further retention in the service is undesirable,

the personnel will be informed 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 but it would be evident from the order

of dismissal as appended as Annexure-2 to the writ petition no such

compliance has been done since there is no reference of any report in the

order of dismissal rather the competent authority came to the conclusion

by referring- "Considering the matter in its entirety, I am satisfied that

No.85002690 Subedar Naiman Kullu of 74 Bn BSF has been illegally

overstaying without leave since 04 April 2008(FN). I am also satisfied

that his aforesaid continued illegal absence is contrary to the expected

norms and is detrimental to the Force discipline, which make his further

retention in the Force as undesirable.....". However, before reaching to

such finding, concerned competent authority ought to have considered

the report as has been mandated under the provision of sub-rule (2) of

Rule 22 of the BSF Rules, 1969. Having not done so the entire process

of dismissal of the husband of the substituted writ petitioner is under

cloud. However, learned counsel for the appellant has tried to impress

upon the Court by referring to the judgment rendered by Hon'ble Apex

Court in Union of India and Ors. vs. Ram Phal, (1996) 7 SCC 546 but

this Court, on consideration of the factual aspect involved therein, has

found that in the aforesaid case there was a finding under Section 62 of

the BSF Act whereby and whereunder the concerned respondent was [13]

declared a deserter but there is no such finding available in this case,

therefore, the ratio laid down by the Hon'ble Apex Court in the aforesaid

case is not applicable in the facts of the given case but we are not

holding the entire departmental proceeding to be vitiated in the eye of

law because the learned Single Judge has considered the only aspect of

the matter of quantum which is for the reason that the husband of the

substituted writ petitioner has died in course of pendency of the writ

petition after putting considerable period of service since he had joined

the services under the BSF on 21.04.1985 while he had been dismissed

from service vide order dated 29.12.2008, as such, the order of

punishment has been found to be disproportionate since the ground has

been agitated by the original writ petitioner, the employee (deceased)

was about his physical ailment. Therefore, learned Single Judge has

remitted the matter to the competent authority to take fresh decision.

18. This Court, on consideration of the factual aspect in entirety as discussed

hereinabove and considering the fact that the husband of the substituted

writ petitioner had died in course of pendency of the writ petition as also

considering the reason assigned for dismissal, which as per the order of

dismissal is that his retention in the Force has been found to be

undesirable and when he had died, the sole ground of not retaining the

husband of the substituted writ petitioner in service has vanished the

moment he died but the question would be that can it not be treated to be

shockingly disproportionate; can it not be very harsh on the part of the

substituted writ petitioner that nothing would be paid to the wife of the

original writ petitioner on the basis of the long length of service rendered [14]

by his husband which is from 21.04.1985 to 29.12.2008, fairly for a

period of 23 years?

19. This Court is conscious about the proposition of law that there may not

be interference in the matter of judicial review as has been held by the

Hon'ble Apex Court in Union of India vs. P. Gunasekaran, AIR 2015

SC 545. At paragraph 13 thereof, following guidelines have been laid

down for showing interference in the decision taken by the disciplinary

authority and not to interfere with the decision, which read as hereunder:

"13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence.

Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). re-appreciate the evidence;

(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii). go into the adequacy of the evidence;

(iv). go into the reliability of the evidence;

(v). interfere, if there be some legal evidence on which findings can be based.

(vi). correct the error of fact however grave it may appear to be;

(vii). go into the proportionality of punishment unless it shocks its conscience."

[15]

The Hon'ble Apex Court in Management of State Bank of

India vs. Smita Sharad Deshmukh and Anr., (2017) 4 SCC 75 has laid

down that it is equally settled position of law that the High Court sitting

under Article 226 of the Constitution of India can certainly interfere with

the quantum of punishment, if it is found disproportionate to the gravity

of offence.

In Central Industrial Security Force and Ors. vs. Abrar Ali,

AIR (2017) SC 200, following guidelines have been laid down, showing

interference by the High Court in the matter of punishment imposed on

conclusion of the departmental proceeding, extract of para-8 thereof, is

referred hereinbelow:

"8. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to reappreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, reported in (2011) 4 SCC 584 : (AIR 2011 SC 1931, Para 6), this Court held as follows:

"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749: 1996 SCC (LandS) 80: (1996) 32 ATC 44] : (AIR 1996 SC 484) ; Union of India v. G. Ganayutham [(1997) 7 SCC 463: 1997 SCC (LandS) 1806] : (AIR 1997 SC 3387) ; Bank of India v. Degala Suryanar-ayana [(1999) 5 SCC 762: 1999 SCC (LandS) 1036] : (AIR 1999 SC 2407) and High Court of Judicature at Bombay v. Shashikant S. Patil. (AIR 2000 SC 22)".

[16]

In Union of India and Ors. v. P. Gunasekaran, reported in (2015) 2 SCC 610 : (AIR 2015 SC 545, Para 13), this Court held as follows:

"13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the inquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) the inquiry is held by a competent authority;

(b) the inquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;