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2000 DIGILAW 186 (JK)

Imtiaz Ahad Khan v. Union Of India

2000-09-07

B.P.SARAF, SYED BASHIR-UD-DIN

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PERSYEDBASH1R-UD-DIN,J. 1. Appellant a Constable of Border Security Force was dismissed under orders of the Commandant STC BSF on December 21, 1995. Appellant challenged this order through the medium of SWP 4528 of 1996. The writ petition was dismissed on July 16, 1996. This order of dismissal of the writ is under challenge in this Appeal. 2. Appellant was recruited as Constable in BSF on 07-08-1994. He was deputed to BSF Training Centre Humhama, Budgam for undergoing the prescribed training. During this period on 18-09-1994, appellant was accidentally hit by a bullet discharged from fire arm. He sustained injury in his left leg and was hospitalised in Pathchowk BSF hospital and given necessary medical aid. Appellant failed in the training tests conducted by the BSF Board Officers in September 1995 and December, 1995. The Appellant was discharged from service vide impugned order as the Commandant found that the Appellant was " ..... not likely to become efficient member of the Force". The learned Single Judge found that the petitioner/appellant had failed twice in the prescribed training tests conducted by the Board and also in between unauthorisedly absented from duty. Besides the petitioner/appellant also failed to show the Rule which is alleged to have been breached in passing the impugned discharge order. In the impugned judgment, it is observed that the injury sustained has not interfered with the performance of the petitioner in the tests and that the petitioner was not holding any substantive post. Therefore, the petitioner cannot claim his discharge from service is arbitrary or without any basis. 3. The Appellants counsel submits that the Appellant sustained bullet injury in his left leg without any fault of his by an act of another trainees recruit in the process of cleansing a gun. This affected the performance of the petitioner who could not qualify the test held in September, 1995 and December, 1995. The respondents could not have discharged him for this reason. No enquiry was held in this case and his dismissal from service is for ulterior motives and in an arbitrary manner. The BSF Rules, (without pointing to any specific Rule) it is canvassed have been violated. 4. On examination of record we notice that no specific Rule is referred either in pleadings or in other part of the record, which petitioner/Appellant alleges to imping on the impugned order. The BSF Rules, (without pointing to any specific Rule) it is canvassed have been violated. 4. On examination of record we notice that no specific Rule is referred either in pleadings or in other part of the record, which petitioner/Appellant alleges to imping on the impugned order. No specific Rule is even pointed out in arguments by the counsel to show that an enquiry is prescribed or procedure is set for discharge of a fresh under training recruit constable in the service of BSF. Even the learned Single Judge has observed that no material is on record or placed before the court to indicate that there has been violation of any rule position or dismissal of petitioner has been arbitrary or without a basis. 5. Respondents have in reply specifically pleaded that Appendix I to Rule 13 of the Border Security Force Rules, 1969, under clause (4) part 11 of the prescribed enrollment form (Appendix 1), provides that it shall be the condition of service for a person enrolled as member of the BSF that the person can be discharged during the first two years of the service if such person is not likely to become a efficient member of the Force. 6. Sub Rule (1) to Rule 13 of the BSF Rules provides that the person before enrollment on appearance before the enrolling officer is to be read and explained the condition of service (Part II of Appendix I) followed by other steps required of the enrolling officer or the officer empowered to do so. 7. Rule 178 of the Rules prescribes authority for this purpose shall among others be commandant in respect of person under his command. 8. The rule position as above, is unexceptionally de facto prescribed by the said BSF Rule. 9. It is not disputed that the appellant was enrolled as Constable in BSF on 07-08-1994 and discharged on 21 -12-1995, well within a period of initial two years service. The Appellant raises no dispute with regard to the pleaded case of other side that he was given two chances to pass and complete the physical and written test by the Board of officers in September, 1995 and December, 1995. It is not as well refuted that the appellant received proper treatment and got completely cured. The concerned Medical Officer of the BSF Hospital declared him completely fit to resume training and duties from 27-12-1994. It is not as well refuted that the appellant received proper treatment and got completely cured. The concerned Medical Officer of the BSF Hospital declared him completely fit to resume training and duties from 27-12-1994. If the petitioner has failed in the prescribed test twice, he is to blame none else than himself. Making a mention of Appellant having absented in between unauthorisedly, which later on was condoned, in the context of efficiency or inefficiency of a member of the Force, cannot be said to be out of context and irrelevant. The action of the respondents in discharging petitioner form the Force in this case cannot be said to be arbitrary or without basis. The material particulars and relevant facts have not been pleaded to indicate that the respondents exercised powers malafide or with ulterior motives. An omnibus statement of exercise powers malafide or with ulterior motive would not do in law. For malice in law, foundation is to be laid in pleadings and then same require to be substantiated. 10. The counsel contends next that the discharge order is without jurisdiction and could not have been passed without enquiry. The counsel has not shown us any law that the Commandant was not empowered to discharge the appellant in the circumstances as he did in this case. The Commandant as pointed out is the authority for the purpose of Sub Rule 1 of Rule 13 read with Appendix Part-2 of this Rule. If a person enrolled is not likely to become efficient member of the Force and in which case he can be discharged during the 1st two years of the service itself, no fault can be found for exercise of such power, once such exercise of power is a condition of service and is a condition attached to the appointment itself. The reasons (referred above) are on record as to the circumstances in which the authority has come to the conclusion that the petitioner is not likely to be an efficient member of the Force. The discharge order is passed during the span of initial two years of appellants service with the Force. In such circumstances holding of enquiry, before termination of service of Appellant-Constable from the Force, is not a precursor or pre-condition to such an order. The discharge order is passed during the span of initial two years of appellants service with the Force. In such circumstances holding of enquiry, before termination of service of Appellant-Constable from the Force, is not a precursor or pre-condition to such an order. Though there are inquiry provisions in the Rule qua termination of service of the members of the Force, on grounds of unsuitability, physical un-fitness, misconduct etc. But all the same, the present case is not covered by those provisions. The specific enabling provision, noted above, empowers the competent authority to pass an order of discharge/termination within initial two years of enrolment, as in this case, on the ground that the person enrolled is not likely to become an efficient member of the Force. In result, we do not find any arbitrariness, discrimination or malice in discharging the petitioner-appellant from service of the Force on ground that he is not likely to become an efficient member of the Force. The order is not shown to us to suffer from any legal infirmity. We find no merit in this Appeal. Dismissed. Disposed of.