High Court of Meghalaya
No.97005927 Ex Constable/Gd vs The Union Of India Represented By The ... on 3 May, 2024
Serial No.01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP (C) No.274 of 2016 Reserved on: 06.03.2024
Pronounced on: 03.05.2024
No.97005927 Ex Constable/GD,
Shri Ashwin Patti, H.Q.:65 Bn BSF, C/0 99 APO ..... Petitioner
-vs-
1. The Union of India represented by the Secretary, Ministry of Home
Affairs, Government of India, New Delhi.
2. The Directorate General of Border Security Force,
R.K. Puram, New Delhi.
3. The Director Medical, H.Q: Directorate General, BSF, R.K.Puram,
New Delhi.
4. The Inspector General, BSF, Frontier Head Quarter, Shillong,
Meghalaya.
5. The Commandant, 65 Battalion, BSF, PO-Dobasipara, Tura, West
1.
2.
Garo Hills District, Meghalaya. ... Respondents
Coram:
Hon'ble Mr. Justice S. Vaidyanathan, Chief Justice
Appearance:
For the Petitioner : Mr. R.Jha, Adv.
For the Respondents : Dr. N.Mozika, DSG with
Ms. A.Pradhan, Adv.
i) Whether approved for Yes
reporting in Law journals etc.:
ii) Whether approved for publication Yes
in press:
ORDER
The present writ petition has been filed, challenging the
impugned dismissal order dated 31.08.2015 passed by the Summary
Security Force Court (SSFC) constituted under the BSF Act, 1968 with a
direction to reinstate him in the service from the date of his dismissal,
i.e., 31.08.2015 with backwages and with such other perks and privileges
incidental thereto.
Brief Facts:
2. The petitioner was enrolled as a Constable in the Border
Security Force (BSF) on 03.12.1997 and after completion of the basic
training, he was posted to 65 Battalion BSF on 18.12.1998 from STC
BSF Jodhpur. He applied for leave on 24.05.2014 and his request for 50
days leave was sanctioned by the competent authority. However, he did
not go on sanctioned leave and he made a fresh application for 15 days
earned leave on the ground of his sister's illness. The said leave was also
sanctioned for the period between 25.05.2014 to 11.06.2014 with 2 days
journey period.
2.1. Though he was supposed to join duty on 11.06.2014, he
did not join duty and overstayed leave without any sufficient ground and
no intimation to the Unit was given. Three letters have been sent to the
petitioner on 18.06.2014, 30.06.2014 and 05.07.2014 asking him to
report for work, failing which action would be initiated in terms of BSF
Act and Rules. After a lapse of 49 days of overstay, a request was made
by the petitioner on 31.07.204 for extension of leave on medical ground,
stating that he was taking treatment in a private hospital as an Out
Patient. Considering the request of the petitioner, he was directed to
report for work at 65 Bn BSF vide communication dated 23.08.2014.
2.2. The petitioner, without joining duty, further sought
extension on medical ground on 16.09.2014, stating that he was taking
treatment from one private practitioner, who was issuing medical
certificate to the petitioner without mentioning any progress or referring
him to any specialist. Since his illness was not so serious, he was
directed by the Commandant to resume duty by Letters dated
19.09.2014, 13.11.2014 and 05.12.2014.
2.3. Even thereafter, the petitioner did not evince any interest
in joining duty and hence, it was decided to conduct an enquiry in terms
of Section 62 of the BSF Act, 1968. The Court of Inquiry found that he
overstayed the leave period from 12.06.2014 without sufficient cause
and recommended for a suitable disciplinary action. In terms of Section
61 of the BSF Act, 1969, an Apprehension Roll was issued against the
petitioner on 18.12.2024 and the Police could not apprehend the
petitioner. Since the Apprehension Roll could not be executed and the
petitioner did not report for work, in exercise of powers under Section
11(2) of the BSF Act, 1968 r/w Rule 177 of the BSF Rule, a show cause
notice was issued tentatively proposing to dismiss him from service and
asking him as to why he should not be dismissed from service.
2.4. The petitioner did not reply to the show cause notice and a
special representative in the Unit was sent to the home town of the
petitioner on 03.02.2015 to ascertain reasons for his absence, wherein he
was not available and the representative met the mother of the petitioner
and local Police authorities and requested them to ask the petitioner to
resume duty immediately.
2.5. The petitioner voluntarily reported for work in the Unit on
12.04.2015 after overstaying leave for 305 days without any sufficient
cause and before convening the SSFC, the petitioner was provided with
a copy of the charge sheet to prepare his defence and the same was
received by the petitioner on 28.08.2015. The petitioner was also
informed that he is at liberty to engage a legal counsel on his own
arrangement to defend his case. He was also asked to nominate an
Officer of his choice to assist him in the trial. The petitioner intimated
the name of Shri Kailash Lukha, Deputy Commandant as friend of
accused during SSFC trial.
2.6. The Trial was conducted on 31.08.2015 and during trial,
the petitioner had pleaded guilty to the charge and accordingly, the trial
of the petitioner was proceeded on the plea of guilty. Since the Court had
satisfied that the petitioner understood the charge and effect of his plea
in terms of Section 142(2) of the BSF Act, it proceeded with the trial of
the petitioner on the plea of guilty. The petitioner was also given an
opportunity to produce witnesses and make statement. However, the
petitioner did not produce any witness and made a short statement that
he is guilty of the charge and that he may be given a chance and that he
will not repeat such mistake again. Finally, the petitioner was imposed
with the punishment of dismissal from service on 31.08.2015.
2.7. After dismissal from service, the petitioner was informed
of his right to prefer an appeal before the Inspector General, BSF,
Meghalaya within three months from the date of dismissal order and
accordingly, he had submitted a petition before the Appellate Authority
without obtaining a copy of the SSFC trial proceedings. Though he was
asked to submit a fresh petition after obtaining SSFC trial proceedings,
he has straightaway approached this Court without exhausting the
alternative remedy. The petitioner's past record was also considered and
he had been awarded punishments on several occasions for his omissions
and commissions, which have been elaborately described by the
respondents in the counter affidavit.
3. Learned counsel for the petitioner has submitted that there
was no proper enquiry conducted and that all the evidences were
recorded only in English, which is in violation of Rule 134 of the BSF
Rules, 1969, as the petitioner does not understand English. The said
submission has been refuted by the learned DSG, stating that at every
stage, the petitioner was given opportunity to defend his case and it was
the petitioner, who failed to utilize such opportunities, which ended in
his dismissal from service.
4. Heard both parties and perused records.
5. Admittedly, the petitioner absented himself for 305 days
without any sufficient reasons. From the pleadings of the parties, this
Court is able to visualize that at every stage, the petitioner was asked to
report for work. Border Security Force is a disciplined force and the
Apex Court in the case of Union of India vs. Datta Linga Toshatwad,
reported in 2005 (13) SCC 709 categorically held that a Constable
overstaying his leave period and thereafter, reporting for work is not
entitled to any relief. The petitioner was afforded opportunity to cross
examine the prosecution witnesses and all the mandatory requirement of
the provisions of the BSF Act, 1968 have been duly complied with. This
Court finds no violation on the part of the respondents in conducting
enquiry and dismissing the petitioner from service.
6. The Apex Court in the case of Union of India and others
Vs.P.Gunasekaran, reported in (2015) 2 SCC 610 laid down a dictum
that under Article 226/227 of the Constitution of India, the High Court
shall not go into the proportionality of punishment, unless it shocks its
conscience. In this case, the petitioner had suffered five punishments on
earlier occasions and habitually been overstaying beyond leave period in
his 17 years of service. Taking into account the grave situation, the
respondents had chosen to impose the punishment of dismissal from
service and this Court finds no error or infirmity in the order impugned
herein.
7. Dehors all the procedural aspects, the petitioner had
accepted the charge and pleaded guilty before the Enquiry Officer that
itself is suffice to impose the punishment. In the light of the judgment of
the Supreme Court in Dharmarathmakara Raibahadur Arcot
Ramaswamy Mudaliar Educational Institution v Educational
Appellate Tribunal and another, reported in (1999) 7 SCC 332,
admission of guilt alone is sufficient for imposition of punishment and a
detailed enquiry is not required. The said judgment has been referred to
by me in The General Manager, Southern Railway HQ Office and 3
Others vs. D. Emarose (W.A.No. 2457 of 2022 dated 28.02.2023), while
sitting in a Division Bench of Madras High Court.
8. The conduct of the petitioner is highly deprecated and he,
who has not maintained discipline in his service, cannot be allowed to
continue in service. The petitioner, being a Constable, more particularly,
a member of disciplined force, is bound to obey the order and command
of his superior officers. As held by the Supreme Court in the case of
Union of India and others vs. Diler Singh, reported in 2016 (13) SCC
71, which has been affirmed in a recent judgment of the Apex Court in
Anil Kumar Upadhyay vs. The Director General, SSB and others,
reported in 2022 SCC Online SC 478, a member of the disciplined force
is expected to follow the rules, have control over his mind and passion,
guard his instincts and feelings and not allow his feelings to fly in a
fancy.
9. Taking into account the totality of the circumstances, the
dismissal of the petitioner from service is justified and the impugned
order dated 31.08.2015 passed by the Summary Security Force Court
(SSFC) is perfectly valid in the eye of law, warranting no interference by
this Court.
10. Accordingly, WP (C) No.274 of 2016 is dismissed as devoid
of merits.
(S.Vaidyanathan)
Chief Justice
Meghalaya
03.05.2024
"Lam DR-PS"
PRE-DELIVERY ORDER IN
