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2000 DIGILAW 624 (PNJ)

Dula Singh v. Union Of India

2000-06-01

V.K.JHANJI

body2000
Judgment V.K.Jhanji, J. 1. This is plaintiffs second appeal directed against the judgment and decree of learned District Judge, Amritsar whereby on acceptance of first appeal preferred by the defendant, namely, the Union of India, judgment and decree of trial Court decreeing the suit was set aside and as a consequence thereof suit of the plaintiff dismissed. 2. In brief, the facts are that the plaintiff was enrolled in Punjab Armed Police on July 25, 1964. Later, when Boarder Security Force was formed, plaintiff was taken on its strength with effect from 2.10.1966. He was promoted as Naik with effect from 1.2.1968 and as head Constable with effect from 13.8.1971. Plaintiff asked for five days, casual leave from 17.3.1980 to 21.3.1980 but after availing of said leave he did not resume his duties. As a result Court of Enquiry was ordered under the relevant provision of Border Security Force Act and the rules framed thereunder. Based upon the opinion of Court of Enquiry, plaintiff was declared deemed to be deserter. Subsequently, show cause notice dated 10.6.1980 was sent to the plaintiff proposing to terminate his services by way of dismissal. Plaintiff did not file any reply there to and as such vide order dated 10.7.1980, plaintiff was dismissed from service by the Commandant. Plaintiff challenged order dated 10.7.1980 by filing suit out of which the present second appeal has arisen. In the plaint, plaintiff submitted that while he was on sanctioned leave in his village, he was falsely implicated in a case under Sections 323 and 324 of Indian Penal Code. Plaintiff was convicted under Sections 148/149 of Indian Penal Code by the Judicial Magistrate, Ajnala but in appeal vide judgment dated 20.7.1981, he was acquitted by the learned Sessions Judge, Amritsar. Plaintiff alleged that when he reported for duty in the Battalion, he was told that because of his absence from duty, his services have been terminated. Plaintiff alleged that no show cause notice was ever delivered to him by the postal authorities or through departmental person or through local police. He contended that in absence of show cause notice, he could not make proper representation and, therefore, order terminating his services is totally illegal being against the principles of natural justice. Plaintiff alleged that no show cause notice was ever delivered to him by the postal authorities or through departmental person or through local police. He contended that in absence of show cause notice, he could not make proper representation and, therefore, order terminating his services is totally illegal being against the principles of natural justice. Plaintiff further contended that his absence was neither wilful nor he committed any misconduct as it was his duty to attend the Court in a case in which he was falsely implicated. On the other hand, defendant in its written statement submitted that the plaintiff after availing of casual leave for 5 days, did not join duty and as a result of report of Court of Enquiry, he was declared deserter. Defendant further submitted that the plaintiff remained wilfully and deliberately absent from duty for more than 90 days and as such he was dismissed from service. Defendant also questioned the territorial jurisdiction of Civil Court at Amritsar to try the suit. Trial Court, on appreciation of evidence led by the parties to the suit, decreed the suit. It held that the plaintiff could not have been dismissed from service for absence without leave without having been punished by the Security Force Court. However, on appeal by the defendant, the District Judge, Amritsar set aside the judgment and decree of the trial Court and held that the plaintiff was dismissed from service in accordance with the provisions of the Act and the Rules framed thereunder, and therefore, the order of dismissal is legal and valid. Resultantly, the first Appellate Court dismissed the suit of the plaintiff. Hence this second appeal by the plaintiff. 3. Learned counsel appearing on behalf of the plaintiff contended that the very initiation of disciplinary proceedings against the plaintiff was bad as no show cause notice was served upon the plaintiff. Counsel further contended that under Section 11 of the Border Security Force Act, 1968 (hereinafter referred to as the Act) read with rules 20 and 21 of The Border Security Force Rules, 1969 ( hereinafter referred to as the Rules) it was mandatory for the Commandant not only to cause service of show cause notice upon the plaintiff but also should have supplied the entire adverse material on the basis of which he had come to the conclusion that further retention of the plaintiff in service was undesirable. In answer to this submission, learned counsel appearing on behalf of Union of India contended that show cause notice was sent to the plaintiff at his known residential address but the same was received back undelivered. It is contended that since the plaintiff had absented, the service of show cause notice sent to him through registered post should be treated as sufficient. 4. In order to appreciate the respective contentions of the learned counsel for the parties, it is necessary to take notice of Section 11 of the Act and Rule 177, 20 and 21 of the Rules which were in force at the relevant time. Section 11 and Rules 20 and 21 read as under:- Section 11: Dismissal, removal or reduction by the Director-General and by other officers.- (i) The Director-General or any Inspector-General may dismiss or remove from the service or reduce to a lower grade or rank or the ranks any person subject to this Act other than an officer. (2) An officer not below the rank of Deputy Inspector-General or any prescribed officer may dismiss or remove from the service any petition under his command other than an officer or a subordinate officer of such rank or ranks as may be prescribed. (3) Any such officer as is mentioned in sub-section (2) may reduce to a lower grade or rank or the ranks any person under his command except an officer or a subordinate officer. (4) The exercise of any power under this section shall be subject to the provisions of this Act and the rules. Rule 177 Prescribed Officer under Section 11(2) :- The Commandant may, under sub-section(2) of section 11, dismiss or remove from the service any person under his command other than a officer or a subordinate officer. Rule 20 Termination of service for misconduct:- (1) Where in the opinion of the Director General a person subject to the Act has conducted himself in such manner whether or not such conduct amounts to an offence, as would render his retention in service undesirable and his trial by Security force Court inexpedient, the Director General may inform the person concerned accordingly. (2) The Director General shall further inform the person concerned that it is proposed to terminate his service either by way of dismissal or removal. (2) The Director General shall further inform the person concerned that it is proposed to terminate his service either by way of dismissal or removal. (3) The Director General shall furnish the particulars of allegations and the report of investigation ( including the statement of witnesses, if any, recorded and copies of documents, if any, intended to be used against him) in cases where allegations have been investigated: Provided that where the allegations have not been investigated, the Director General shall furnish to the person concerned the names of witnesses with a brief summary of the evidence and copies of documents, if any, in support of the allegations. (4) Notwithstanding the provisions of sub-rule (3) where it would not be in public interest to disclose the evidence or the documents, it shall be lawful for the Director General to withhold copies of such evidence or documents from the person concerned. (5) Where any evidence or document is withheld under sub-rule (4), the Director General shall record the nature of the evidence or the document withheld and forward the same to the Central Government together with the reasons for withholding such evidence or document. (6) The person concerned shall within seven days from the receipt of information furnished to him under sub-rule (3) inform, in writing the Director General:- (a) his acceptance or denial of the allegations. (b) any material or evidence he wishes to be considered in his defence; (c) names of witnesses whom he wishes to cross examine; and (d) names of witnesses whom he wishes to examine in his defence. (7) Where the person concerned has expressed a wish to cross-examine any witness or to produce witnesses in defence, the Director General shall appoint an enquiry officer who shall be an officer superior to the person against whom it is proposed to take action and has not taken any part previously in the investigation in to the matter. (8) Where any complaint has been received by the Central Government against a person subject to the Act that he was conducted himself in such manner as would render his retention in service undesirable, the Central Government may require the Director General to take necessary action in this behalf in accordance with the provisions of the foregoing sub-rules. (8) Where any complaint has been received by the Central Government against a person subject to the Act that he was conducted himself in such manner as would render his retention in service undesirable, the Central Government may require the Director General to take necessary action in this behalf in accordance with the provisions of the foregoing sub-rules. Rule 21 Procedure before the Enquiry Officer:- (1) The Director General may appoint an officer of the Force to be the conducting officer for the purposes of presenting the case before the enquiry officer and it shall be the duty of the conducting officer to procure the attendance of witnesses. (2) No counsel or legal practitioner shall be allowed to appear before the enquiry officer. (3) The evidence of witnesses shall be taken on oath and the conducting officer shall have the right to cross-examine or re-examine witnesses and to call witnesses in rebuttal. (4) The enquiry officer shall ordinarily examine only such witnesses whose names have been disclosed under clause (c) and (d) of sub-rule 6 of rule 20, but if the interests of justice so require, the enquiry officer may permit the person whose conduct is under enquiry, to call additional witnesses: Provided that, if the enquiry officer considers that the evidence likely to be given by a witness would not materially assists in the determination of the issues, he may refuse to examine such a witness. (5) The enquiry Officer shall sit from day to day till the whole evidence has been recorded: Provided that, if the interests of justice so require he may, for reasons to be recorded in writing adjourn for a reasonable time. (6)(a) The enquiry officer shall, immediately after the termination of the enquiry, transmit his finding along with the evidence recorded, to the Deputy Inspector General under whom the person whose conduct is under enquiry was serving at the time of the alleged misconduct. (b) The Deputy Inspector General shall forward the proceedings together with his opinion thereon to the Inspector General concerned who may record his opinion and transmit the proceedings to the Director General. (7) The decision of the enquiry officer as to the admissibility of evidence, allowing or disallowing any question, calling or refusing to call any witness, adjourning or refusing to adjourn or on any other incidental question shall be final. 5. (7) The decision of the enquiry officer as to the admissibility of evidence, allowing or disallowing any question, calling or refusing to call any witness, adjourning or refusing to adjourn or on any other incidental question shall be final. 5. Section 11 of The Act deals with dismissal, removal or reduction in rank or to a lower grade and entitles the Director-General or Inspector General to dismiss or remove from service or reduce to a lower grade or rank any person other than an officer. Rule 20 of the Rules provides that if the Prescribed Authority comes to the conclusion that on account of misconduct, further retention of a member of the Force in service is undesirable , the person concerned is to be apprised of the charges upon which it is proposed to take action against him in regard to dismissal or removal from service or reduction in rank. Rule further makes it mandatory for the Prescribed Authority to furnish particulars of allegations and the report of the investigation in cases where allegations have been investigated along with the statement of witnesses, if any, recorded and the copies of the documents, if any, intended to be used against him. In case it is not in public interest to disclose the evidence or documents, the Prescribed Authority is entitled to withhold the copies of such evidence or documents but in that case, it has to record reasons for withholding such documents or evidence. It is only thereafter that the person concerned has to submit reply within the time specified. Failure to submit an explanation entitles the Authority to proceed ex parte against the person concerned. In case the person concerned expresses wish to cross examine any witness or to produce the witnesses in defence, the authority is to appoint an Enquiry Officer who shall be an Officer superior to the person against whom it is proposed to take action and then the Enquiry Officer, after following the procedure laid down in Rule 21 and on conclusion of the enquiry, is to transmit its finding along with evidence recorded, to the Authority under whom the person whose conduct is under enquiry is serving at the time of alleged misconduct. On receipt of the report of the Enquiry Officer, the Authority is to go through the allegations against the person intended to be dismissed or removed from service, his evidence and the proceedings of enquiry, if any, and in case on consideration of the same, it finds that the allegations are proved, it may dismiss or remove such person from service. 6. In the present case, the plaintiff was a Head Constable and so under rule 177 of the Rules read with Section 11(2) of the Act he could be removed by the Commandant from the service. From the perusal of the record, I find that notice dated 10.6.1980 was sent to the plaintiff by registered post. The notice reads as under:- "Sub " NOTICE FOR TERMINATION OF SERVICE You have been absent without leave with effect from 22.3.80. I am of the opinion that because of the absence without leave for a long period, your further retention is undesirable, I, therefore, propose to dismiss you from service. If you have any thing to urge in your defence or against the imposition of this penalty, you may do so before 26 June 1980. In case no reply is received by the date, it would be inferred that you have no defence to put forward." 7. A bare reading of the notice has revealed that the opinion was formed by the officiating Commandant that the plaintiffs retention in service was considered undesirable because of his alleged absence from duty without leave with effect from 22.3.1980. It was on that account that it was proposed to terminate his services for which he was called upon to show cause as to why his services be not terminated by an order of dismissal. It is the admitted case of the plaintiff that the registered envelope containing notice was returned undelivered with the following remarks of the Postmaster, Gharinda " He went on duty without unknown address." 8. On failure of the plaintiff to submit any reply, the following order was passed on 11.7.1980:- "I have personally gone through the case of absence without leave against No. 68221055 Head Constable, Dulla Singh of this unit. He was given an opportunity to show cause which he has not availed of. I am satisfied that he is absent without leave without any reasonable cause and that his further retention in the service is undesirable. He was given an opportunity to show cause which he has not availed of. I am satisfied that he is absent without leave without any reasonable cause and that his further retention in the service is undesirable. I, therefore, dismiss him from service w.e.f. 10 July, 1980. His period of absence from 22.3.80 onward will be treated as extra-ordinary leave without pay. xxx xxx Sd/-....... 9. The order was sent to the plaintiff through registered post on 7.10.1980 but the registered cover was returned undelivered with the remarks of the Postmaster, Ghardina " Left without address". As noticed above, the order of dismissal was passed by the Commandant in exercise of powers under Section 11 of the Act on the basis of opinion formed by him in regard to the absence of the plaintiff from duty without sufficient cause. The challenge to the impugned order is on the ground that the same was passed without following the mandatory provisions of the Act and the Rules framed thereunder inasmuch as no charge sheet was served on the plaintiff. Challenge is also on the ground that no material on the basis of which the Commandant formed his opinion that-the plaintiffs retention is service is not desirable, was also not sent along with the show cause notice. On the other hand, the impugned order is being defended on the ground that the plaintiff was avoiding receipt of notice and, therefore, sending of notice through registered cover is to be treated as proper communication of notice. Admittedly, the notice which was sent to the plaintiff was returned with the endorsement by the Postmaster " He went to duty without unknown address." The defendant may be right in contending that the plaintiff was evading receipt of notice but that does not mean that it gives a right to the Authority to proceed ex parte unless it was conclusively established that the plaintiff deliberately and intentionally was not accepting the notice. Neither there is any evidence on record to prove that the plaintiff was evading receipt of notice nor the record shows that the authority before proceeding ex parte against the plaintiff, had satisfied itself that the plaintiff was deliberately evading receipt of notice. Neither there is any evidence on record to prove that the plaintiff was evading receipt of notice nor the record shows that the authority before proceeding ex parte against the plaintiff, had satisfied itself that the plaintiff was deliberately evading receipt of notice. Counsel for the defendant has also not been able to point out any evidence from the record that along with the show cause notice, material to be used against the plaintiff was sent. In absence of service of show cause notice or failure to supply material to the plaintiff, it is difficult to accept that the enquiry did not suffer from any procedural infirmity. In Union of India and Ors. v. Dinanath Shantaram Karekar and Ors., AIR 1998 S.C. 2722, registered cover containing charge sheet was returned with the endorsement "not found". Thereafter, show cause notice was published in local newspaper. The Central Administrative Tribunal, Bombay found the service of charge-sheet and notice on the plaintiff as insufficient and, therefore, set aside the order by which the person was removed from service. Union of India challenged the order and their Lordships of the Supreme Court upheld the order and held that "where the disciplinary proceedings are intended to be initiated by issuing a charge-sheet, its actual service is essential as the person to whom the charge-sheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings. So also, when the show-cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him. Since in both the situations, the employee is given an opportunity to submit his reply, the theory of Communication cannot be invoked and Actual Service must be proved and established." As noticed earlier, in the present case also, neither the show-cause notice was ever served upon the plaintiff nor any material on the basis of which the Authority had come to the conclusion that the plaintiffs further retention in service was undesirable, was sent along with the show-cause notice and, therefore, the order of dismissal is not sustainable in law being in violation of Rules 20 and 21 of the Rules. 10 Faced with this situation, learned counsel appearing on behalf of Union of India cited the judgment in Union of India v. Ram Phal, 1996(2) RSJ 550 and Union of India v. Amarjit Singh, 1996(2) RSJ 611 to contend that when a person is absent from duty without due authority, the order passed by the Authority terminating the services of the delinquent official is just and valid and cannot be interfered with. In Union of India v. Ram Phal (supra), the order terminating the services was upheld by the Supreme Court as it had been established that the prescribed procedure was followed before passing the order of dismissal. In Union of India v. Amarjit Singh (supra), rules 20 and 21 of the Rules were not noticed and, therefore, is of no help to the case of the defendant. 11. Counsel for the Union of India then contended that members of Border Security Force being part of Armed Forces of the Union, are not civil servants and, therefore, cannot invoke the principles of natural justice and article 311 of the Constitution of India is not applicable. It is true that the provisions of article 311 of the Constitution of India do not apply to the case of the plaintiff who is a member of the Armed Forces but the plaintiff is not challenging the order of dismissal being in violation of article 311 (2) of the Constitution but the challenge is on the ground that the same is in violation of rules 20 and 21 of the Rules. 12. Learned counsel lastly cited (1) Gurnam Singh v. Union of India, (1995-1) P.L.R. 381; (2) State of Rajasthan and Ors. v. Swastik Properties and Anr., AIR 1985 (SC) 1289; (3) Daya Shankar Bhardwaj v. Chief of the Air Staff, New Delhi and Ors., AIR 1988 (Allahabad) 36; and (4) Satish Sawhney v. Smt. Usha Vujh, (1992-2)102 P.L.R. D. 49 to contend that the Civil Court at Amritsar had no jurisdiction to entertain the suit merely because the plaintiff was served with the order of dismissal in District Amaritsar. 13. Section 21 of the Code of Civil Procedure provides that no objection as to the place of suing should be allowed by Appellate or Revisional Court unless there has been consequent failure of justice. 13. Section 21 of the Code of Civil Procedure provides that no objection as to the place of suing should be allowed by Appellate or Revisional Court unless there has been consequent failure of justice. In the present case, although the objection as to the territorial jurisdiction was raised in the written statement, yet no effort was made by the defendant to get it adjudicated before determination of the issues on merits. Therefore, in order to justify the reversal of the decree, it is for the defendant to establish that by entertaining the suit by Civil Court at Amritsar, there has been consequent failure of justice. Learned counsel apart from urging that the Court at Amritsar had no jurisdiction to entertain the suit, has not been able to show the prejudice caused to the defendant. Consequently, this contention too is without any merit. 14. At this stage, I may add that the trial Court set aside the order of dismissal on the ground that the same could not have been passed without plaintiff having been punished by the Security Force Court. Learned counsel appearing on behalf on the plaintiff made an attempt to support the finding of the trial Court in this regard but in my view, the reasoning of the trial Court in the light of judgment in Sri Gouranga Chakraborty v. State of Tripura and Anr., AIR 1989 SC 1321 cannot be sustained. In reference to Section 11(2) of the Act, their Lordships of the Supreme Court held that power under Section 11(2) empowering the Prescribed Authority 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 Rules is an independent power which can be validly exercised by the Commandant as a Prescribed Authority 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. 15. Consequently, order 10.7.1980 dismissing the plaintiff from service being in violation of Rules 20 and 21 of the Rules is set aside. 15. Consequently, order 10.7.1980 dismissing the plaintiff from service being in violation of Rules 20 and 21 of the Rules is set aside. Resultantly, the judgment and decree dated 23.5.1984 of the first Appellate Court is also set aside and that of the trial Court restored but with the modification that the matter shall stand remitted to the Disciplinary Authority to follow the procedure from the stage at which the fault has been pointed out and to take action according to law. Pending enquiry, the plaintiff shall be deemed to be under suspension. The consequential benefits will depend upon the result of the enquiry and the order passed thereon. This appeal is accordingly allowed. No costs.