Sri Ratan Rudra Paul vs The Union Of India
2021 Latest Caselaw 1227 Tri

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                     HIGH COURT OF TRIPURA
                            AGARTALA
                             WP(C) No. 7 of 2019
Sri Ratan Rudra Paul
son of Sri Nikunja Rudra Paul, resident of Konaban, P.O. Konaban,
P.S. Bishalgarh, District- Sepahijala, Tripura
                                                                      .....Petitioner
      -VERSUS-
1.     The Union of India,
represented by its Secretary, Department of Home, Government of India, P.O. New
Delhi-110001
2.     The Director General,
Border Security Force, Government of India, North Block, New Delhi-110001.
3.     The Inspector General,
Border Security Force, Headquarter at S.B. Jammu Frontier, Ministry of Home
Affairs, Government of India, Paloura Camp, Jammu & Kashmir-181124
4.     The Commandant,
152 Bn., Border Security Force, Haringhata, P.O. Mohanpur, District- Nadia,
West Bengal-741235
                                                                    ....Respondents

 For the Petitioner (s )          :      Mr. A. Bhowmik, Advocate
                                         Mr. S. Dey, Advocate
 For Respondent (s)               :      Mr. B. Majumder, Assistant SG
 Date of hearing & delivery
 of judgment & order              :      09.12.2021
 Whether fit for reporting        :      Yes / No

               HON'BLE MR. JUSTICE ARINDAM LODH
                     JUDGMENT & ORDER (ORAL)

By way of filing the instant writ petition, the petitioner has challenged the order of his dismissal from service dated 11.10.2013 passed by the competent authority and confirmed by the appellant authority.

2. The facts, briefly stated, are as under:

The petitioner was enrolled as Constable (GD) under the Border Security Force (BSF, for short) in the year 2011. While discharging his duties as Constable, the petitioner was given punishment for over-staying on leave for the month of November-December, 2012. Again in the month of March, Page 2

2013, the petitioner was given punishment of quarter-guard for a period of 14 days. Thereafter, the petitioner was found missing. The petitioner had pleaded in this writ petition that during that period he lost his mental stability. After expiry of 30 days for his unauthorized absence in the Force, a Court of Inquiry was held. It is pertinent to mention here that before the Court of Inquiry, the Unit of the petitioner had made their best efforts to look for him and having failed to trace him out, an FIR was lodged. Thereafter, the Unit of the petitioner had sent 3 numbers of letters at his home address through registered post directing him to resume his duties immediately, but, he failed to report back inspite of repeated reminders. So, after 30 days of his absence without due authority, the Court of Inquiry was held as contemplated under Section 62 of the BSF Act, 1968 (here-in-after referred to as the Act, 1968). Since, neither the petitioner reported back to his duty nor any communication was received by the respondents from him justifying his absence without due authority, the matter was taken up by the Commandant, and as per his remarks on the report of the Court of Inquiry, an apprehension role was prepared through the Civil Authority (District Magistrate & Collector, West Tripura, Agartala) and was issued in compliance of the provision of Section 60 and 61 of the said Act, 1968, but, no response was received from the Civil authority till the order of his dismissal. Ultimately, as mandated under sub-rule (2) of Rule 22 of the BSF Rules, 1969 (here-in-after referred to as the "Rule, 1969"), the petitioner was given opportunity to show-cause vide no. Estt./AWL/ 152 Bn/2013/712-13 dated 2nd September, 2013 against his proposed dismissal from service, but, the petitioner had failed to respond to the said notice and did not submit any reply. Ultimately, it had led the competent authority to decide the matter of continued illegal absence of the petitioner in its entirety and being found the petitioner non-responsive to the correspondences made from the Unit and the competent authority found the behaivour of the petitioner contrary to the expected norms and detrimental to the Force Page 3

discipline. It was further opined that further retention of the petitioner in the Force was undesirable. The competent authority also had taken into consideration the fact that on earlier two occasions also the petitioner was found to be absent from his duty without due authority of law, and he was found to be a habitual offender of absenting himself without leave. Accordingly, the petitioner was dismissed from service and his name was struck off from the Unit w.e.f. 11th October, 2019 (a.m.).

3. On the aforesaid background, I have heard Mr. A. Bhowmik and Mr. S. Dey, learned counsel appearing for the petitioner as well as Mr. B. Majumder, learned Assistant SG appearing on behalf of the respondents-Union of India.

4. The main crux of the submission of Mr. Bhowmik, learned counsel for the petitioner is that, firstly, the respondent did not initiate any disciplinary proceeding before dismissing the petitioner from his service, and secondly, in the show-cause notice the adverse report was not annexed as provided under sub-rule (2) of Rule 22 of the Rules, 1969.

5. On the other hand, Mr. Majumder, learned Assistant SG appearing on behalf of the respondents-Union of India has submitted that all established procedures of law, as provided under the BSF Act and Rules had been complied with while dismissing the petitioner from his service. Learned Assistant SG has submitted that all attempts had been made to trace the petitioner out after he was found missing from the Unit and after expiry of 30 days of such absence without due authority, a Court of Inquiry was held under Section 62 of the said Act, 1968. Mr. Majumder, has further submitted that the petitioner was absenting himself without leave for a period of 144 days and did not report back and no communication was received from him justifying his absence without due authority consequent to which an apprehension role through the District Magistrate, West Tripura, Agartala was issued as per the provisions of Section 60 and 61 of the Act, but, no response was received Page 4

from the concerned District Magistrate. Ultimately, it was proposed to dismiss the petitioner. Mr. Majumder, has further submitted that a show-cause notice was issued to submit representation, but, the respondents did not receive any reply from the petitioner. Thereafter, the petitioner was dismissed from service as his further retention in the Force appeared to be undesirable to the competent authority. It is further submitted that the petitioner was a habitual offender of absenting himself without leave.

6. I have considered the submissions of learned counsel appearing for the parties.

7. Undisputedly, the petitioner was absenting himself from duty in the Unit without due authority. The petitioner had suffered punishment on earlier two occasions for absenting himself from the Unit without due authority. He was found to be absenting himself without leave from the Unit from 21.05.2013. The respondents had made their best efforts to trace him out, but, they failed. Ultimately, an FIR was lodged reporting his absence and requesting the police to take necessary action for tracing him out. Thereafter, the respondents had made 3 communications i.e. on 23.05.2013, 30.05.2013 and 10.06.2013. This court has noticed that at one stage the petitioner had expressed his desire to resign from service, which was not approved by the competent authority and his resignation letter was treated as „cancelled‟ by order dated 31.05.2013 issued by the Commandant. In the counter affidavit, the respondents have stated that the petitioner had tendered his resignation from his service citing the reason of his domestic problems (Annexure R-2 to the counter affidavit). Upon such resignation, the petitioner was interviewed by the Commandant, 152 Bn. BSF on 06.05.2013 and thereafter, it was rejected.

8. Coming back to the instant case, there is no dispute regarding absence of the petitioner from the Unit duty without due authority. Attempts were Page 5

made to trace him out and after expiry of 30 days a Court of Inquiry was held as contemplated under Section 62 of the Act, 1968, which 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 ".

9. Neither any representation was submitted by the petitioner nor he had reported back to the Unit. In consonance with of the remarks of the Commandant on the Court of Inquiry (CoI, for short), an apprehension role to the District Magistrate, West Tripura was issued under sections 60 and 61 of the BSF Act, but, the respondents did not receive any response from the concerned District Magistrate, West Tripura. So, the District Magistrate, West Tripura had failed to produce the petitioner in any manner whatsoever as provided under Sections 61 and 61 of the Act, 1968. It will be worthy to reproduce Sections 60 and 61 of the BSF Act, 1968, which is as under:

"60. Arrest by civil authorities.--Whenever any person subject to this Act, who is accused of an offence under this Act, is within the jurisdiction of any magistrate or police officer, such magistrate or police officer shall aid in the apprehension and delivery to Force custody of such person upon receipt of a written application to that effect signed by his Commandant or an officer authorised by the Commandant in that behalf".

"61. Capture of deserters.--(1) Whenever any person subject to this Act deserts, the Commandant of the unit to which he belongs, shall give information of the desertion to such civil authorities as, in his opinion, may be able to afford assistance towards the capture of the deserter; and such authorities shall thereupon take steps for the apprehension of the said deserter in like manner as if he were a person for whose apprehension a warrant had been issued by a magistrate, and shall deliver the deserter, when apprehended, into Force custody. (2) Any police officer may arrest without warrant any person reasonably believed to be subject to this Act, and to be a deserter or to be travelling without authority and shall bring him without delay before the nearest magistrate, to be dealt with according to law".

10. I have further scrutinized the relevant provisions of the BSF Act as well as Rules, framed thereunder. Sub-section (2) of Section 11 of the BSF Act, empowers the presiding authority i.e. the Commandant to dismiss or remove a Page 6

member of the Unit under his command from his service. The relevant provisions of BSF Rules does not signify the power to dismiss the member of the Force from service by the Commandant for his unauthorized absence from duty or for over-staying leave without sufficient cause and holding him as undesirable cannot be exercised unless the Security Force Code has awarded punishment to that person in accordance with procedure prescribed by law. The prescribed authority i.e. the Commandant is competent to exercise the power under Section 11(2) of the Act, 1968, and to dismiss any person under his command, as prescribed under Rule 177 of the BSF Rules. As such, the submission of learned counsel for the petitioner that the established law had not been followed in dismissing the petitioner from service, is bereft of any merit.

The second fold of contention of learned counsel for the petitioner that the adverse reports had not been annexed with the show-cause notice, and for that reason, the show-cause notice issued upon the petitioner suffers from illegalities, according to me, is also devoid of any merit.

11. It is worthy to reproduce Rule 22 of the BSF Act, 1968, which 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.".

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12. Here, the show-cause notice dated 2nd September, 2013, issued by the Commandant may be reproduced hereunder, for convenience, in extenso:-

"CONFIDENTIAL Tele(03743)279284 By Registered Post with AD HQ 152 Bn BSF Haringhata Post-Mohanpur Dist- Nadia State-West Bengal PIN 741235 Estt/AWL/152 Bn/2013/712-13 02 Sept 13 No.111726660 Ct. Ratan Rudra Paul (BSF) S/O Sh Nikunja Rudra Paul Vill- Konaban, PO-Konaban PS-Bishalgarh, Tehsil-Madhupur District-West Tripura Tripura-799100 SHOW CAUSE NOTICE

1. Based on the reports available, it is noted that you have been illegally absent without leave w.e.f. ... May 13 at about 1530 hrs. without sufficient cause. 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 absenting without sufficient cause absent without leave w.e.f. 21 May

13.

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(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 are enclosed for your reference.

5. Please acknowledge receipt of this show cause notice."

13. Firstly, on plain reading of Rule 22 of the BSF Rules, it becomes aptly clear that the competent authority i.e. the Commandant after considering the reports of mis-conduct of the person concerned if satisfied that the conduct of trial of such a person is inexpedient or impracticable, but, in his opinion that his further retention in his service is undesirable, the Commandant shall inform the same to the person concerned alongwith all reports adverse to him, calling upon such person to submit, in writing, his explanation and defence. The proviso of sub-section (2) of Section 22 contemplates that the competent authority may also refrain from disclosing any such report or portion thereof, if, in his opinion, its disclosure is not in the public interest.

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14. Now, on a bare perusal of the contents of the show-cause notice, it comes to light that the Commandant while issuing the show-cause notice had mentioned all the particulars of absence of the petitioner without due authority. From para (iv) of the said show-cause notice, it further comes to light that the show-cause notice was accompanied by a copy of the Court of Inquiry alongwith other reports referred to in para-1 of the show-cause notice for his reference.

15. In this situation, the contention of the learned counsel for the petitioner that the substance of imputation/adverse report were not incorporated with the show-cause notice, is found to be bereft of any merit. Hence, the submission of learned counsel for the petitioner in this regard is repelled.

16. In the above conspectus, I do not find any merit in the instant writ petition, which is accordingly dismissed. However, there shall be no order as to costs.

Pending application(s), if any, also stands disposed.

JUDGE

Saikat