Birendra Singh @Virendra Singh vs Union Of India And Anr
2022 Latest Caselaw 2798 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 8472/2007

Birendra Singh @ Virendra Singh S/o Shri Niranajan Singh, Aged
39 Years, R/o Chooharpur Kinmas Village P.o. Dhatoli (Iglas)
District Aligarh Up Ex-Constable Personal No. 87264256
                                                                            ----Petitioner
                                     Versus
1.       Union Of India Through Its Chief Secretary (Home)
         Through The Director General Of Border Secruity Force,
         C.G.O. Complex, Lodhi Road, New Delhi
2.       Commandant Of 94Th Bn Border Security Force, 56, Apo
                                                                         ----Respondents

For Petitioner(s)          :     Mr. M.S. Raghav, Adv.
For Respondent(s)          :     Mr. Ashish Kumar, Adv.


              HON'BLE MR. JUSTICE SAMEER JAIN
                           Judgment / Order

Reserved On28/02/2022
Pronounced On 01/04/2022

1. Instant writ petition has been filed by the petitioner assailing

the action of the respondents of dismissing him from service and

praying for direction to the respondents to allow the petitioner to

resume duty without any interruption till the date of

superannuation alongwith all consequential benefits in the form of

promotion, seniority with arrears of pay and interest.

2. As per petitioner, he was enrolled in Border Security Force as

Constable (GD) on 11/04/1987 and after completion of basic

training at 25th Bn. BSF, he joined in 3rd Bn. BSF on 22/04/1988

and was further posted to 94th Bn. BSF on 20/11/1992.

3. The contention of the petitioner is that in terms of Section 19

of the BSF Act, 1968, if for the sake of arguments, it is assumed

(2 of 5) [CW-8472/2007]

that the petitioner was absent from duty without leave and

without explanation, then also at the maximum three years'

punishment can be imposed. Further, in terms of Section 62 of the

Act of 1968, enquiry has to be conducted for imposing penalty

which in the case of the petitioner has not been conducted and the

petitioner straightway has been dismissed from service.

4. Per-contra, learned counsel for the respondents submitted

that as per preamble of BSF Act, 1968, the Act has been

constituted and regulated for ensuring the security of Borders of

India and for matters connected therewith. Despite being member

of uniformed and disciplined force, the petitioner was found to be

an undisciplined soldier and habitual of misrepresenting as well as

committing various offences. It is further contended that the

petitioner was awarded as many as seven punishments under

Sections 19 and 40 of the BSF Act from time to time for the

various offences committed by him within a short span i.e. from

1991 to 15/04/1999 the details of which have been pointed out in

Para II of the reply to writ petition. The absence of leave by the

petitioner from time to time was duly admitted by him and he has

undergone punishment in the form of imprisonment. Learned

counsel for the petitioner has drawn attention of this Court

towards Section 11(2) of the BSF Act, 1968 which provides as

under:-

"11. Dismissal, removal or reduction by the Director General and by other officers. -

(1) ......

(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 of 5) [CW-8472/2007]

5. It is thus submitted by learned counsel for the respondents

that as per the said provision, if the competent authority for the

justifiable reasons feels appropriate, the offender can be given

appropriate punishment which may lead to his dismissal. In this

regard, he relied upon judgment of Supreme Court in Sri

Gouranga Chakraborty Vs. State of Tripura: AIR 1989 (SC)

1321, more particularly Para 24 which provides as under:-

"24. We have scrutinized the relevant provisions of the BSF Act as well as the BSF Rules framed thereunder and we have no hesitation to hold that the power under Section 11(2) of the Act empowering the Prescribed Authority, i.e. the Commandant to dismiss or remove from service any person under his command other than an officer or a subordinate officer read with Rule 177 of the said Rules is an independent power which can be validly exercised by the Commandant as a Prescribed Officer and it has nothing to do with the power of the Security Force Court for dealing with the offences such as absence from duty without leave or overstaying leave granted to a member of the Force without sufficient cause and to award punishment for the same. The provision of Sub-section (4) of Section 11 which enjoins that the exercise of the power under the aforesaid Section shall be subject to the provisions of the Act and the Rules does not signify that the power to dismiss a person from service by the Commandant for his absence from duty without leave without any reasonable cause or for overstaying leave without sufficient cause and holding him as undesirable cannot be exercised unless the Security Force Court has awarded punishment to that person in accordance with the procedure prescribed by law. The Prescribed Authority i.e. the Commandant is competent to exercise the power under Section 11(2) of the said Act and to dismiss any person under his command as prescribed under Rule 177 of the BSF Rules. It is also to be noticed in this connection that Rule 6 of the said Rules has specifically provided that in regard to matters not specifically provided in the Rules it shall be lawful for the Competent Authority to do such thing or take such action as may be just and proper in

(4 of 5) [CW-8472/2007]

the circumstances of the case. In this case though" any procedure has not been prescribed by the Rules still the Commandant duly gave an opportunity to the appellant to submit his explanation against the proposed punishment for dismissal from service for his absence from duty without any leave and overstaying leave without sufficient cause. The appellant did not avail of this opportunity and he did not file any show cause to the said notice. Thus the principle of natural justice was not violated as has been rightly held by the High Court. No other point has been urged before us by the learned Counsel appearing on behalf of the appellant."

6. On perusal of records of the writ petition, consideration of

the submissions advanced by respective counsels as well as the

judgments cited at bar, this Court is of the view that the BSF Act,

1968 is a special legislation enacted with the aim and object to

ensure security of borders of India and for matters connected

thereto. The Act mandates discipline and good order qua its

employees and different punishments are specified under Sections

11, 19, 40 etc. for violation of different statutory provisions and in

different terms and proportionality.

7. On analyzing the nature of misconduct, indiscipline and

offences committed by the petitioner on different occasions i.e. on

26/09/1991, 11/07/1992, 19/09/1994, 23/09/1996, 30/12/1997,

07/01/1998 and 15/04/1999 under Sections 19 and 40 of the BSF

Act, 1968, which was never opposed or objected by the petitioner,

this Court is of the view that the action of the respondents in

dismissing the petitioner from service under Section 11(2) of the

BSF Act, 1968 was fully justified because it was not only on single

occasion that indiscipline and offence under Sections 11 and 40

was committed but it was committed on more than seven

occasions. The punishment was also undergone by the petitioner

(5 of 5) [CW-8472/2007]

and never assailed. Therefore, the argument of enquiry under

Section 62 of the BSF Act, 1968 and proportionality as well as

maximum punishment for three years only becomes meaningless.

The competent authority under Section 11(2) of the Act of 1968,

while passing the order impugned, has duly considered the record

of past conduct of the petitioner and has found the petitioner as

unfit for future duties looking to the past conduct. The said view is

also supported by judgment of the Apex Court in Sri Gouranga

Chakraborty (supra).

8. It is also noted in the reply that the authenticity of the

medical certificate produced by the petitioner qua his treatment

for the disease of Manic Depressive Psychosis (Bipolar Type Mental

Disorder) for the period from 20/04/1999 to 15/10/2003 is also

under suspicion, yet for a moment, if it is assumed that the said

certificate is valid, then also, taking into consideration the fact

that the petitioner is a habitual offender and is in the habit of false

accusations and misrepresentations and is in the organization

where national security is to be maintained, this Court is of the

view that the dismissal of the petitioner from service under

Section 11(2) of the BSF Act, 1968 is justified, otherwise the aim

and object of maintaining discipline in the force will be disrupted.

9. In the light of above, this Court does not find any merit in

the instant writ petition and the same is accordingly dismissed. All

pending applications stand disposed of in above terms.

(SAMEER JAIN),J

Raghu/

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