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2001 DIGILAW 131 (JK)

Sunil Kumar Singh v. Union Of India

2001-07-06

T.S.DOABIA

body2001
1. Petitioner was enrolled as Constable in the Border Security Force on 6th March, 89. The petitioner completed 36 months basic training and was shifted to 117 Battalion of Border Security Force (hereinafter referred to as the Force). Petitioner is said to have proceeded on casual leave for 15 days with effect from 13th December, 1997 to 3 Is December, 1997. Petitioner was required to report back to duty on 31st December 1997. He did not do so. He was directed to report for duty vide a registered letter No. 138 dated 5th January, 1998. On 6th January, 1998, a telegram was sent to the respondent authorities by the petitioner. He applied for 12 days earned leave on the ground that his grandmother had died and that his father was not well. This request of his was declined. This was because the petitioner was found to be a habitual absentee. Petitioner was directed to report for duty. A letter in this regard was sent to him on 21st January, 1998. Petitioner, however, did not report. The further fact is that Court on Enquiry was held in terms of Section 62 of the Border Security Force Act read with Rule 173 of the Rules. The authority holding the enquiry was of the opinion that the appellant after availing of the leave had overstayed. This act of his was found to be without any authority of law. After this a show cause notice dated: 20th March, 1998 was issued to him. For facility of reference, this notice is being reproduced below: - You have been absent without leave from 01.01.1998. After considering the reports relating to your absence, I am satisfied that your trial by a Security Force Court is inexpedient/impracticable but am of the opinion that your further retention in service is undesirable. I, therefore, tentatively propose to dismiss you from the service. If you have anything to urge in your defence against the imposition of the proposed penalty, you may do so within 30 days of the receipt of this letter. In case no reply is received within stipulated period, it would be presumed that you have no defence to put forward and exparte decision will be taken into the matter.� 2. Thereafter, a telegram was sent to the respondents that the petitioner is seriously ill. In case no reply is received within stipulated period, it would be presumed that you have no defence to put forward and exparte decision will be taken into the matter.� 2. Thereafter, a telegram was sent to the respondents that the petitioner is seriously ill. In response to this telegram, a letter was directed to the petitioner; he was called upon to send a medical certificate in this regard. The petitioner did not respondent. It was in these circumstance, the order of dismissal was passed on 1st August, 1998. Para 1 of the order referred to above is relevant and is being reproduced below: - I have personally gone through the case of absence without leave against No. 89243497 Const Sunil Kumar Singh of this unit who has been absenting himself without leave w.e.f. 01-01-1998. He was given an opportunity to show cause vide letter No. Estt/Disc/S.K/117Bn/98/3024 dated 20th March, 1998 which he has not availed of. I am satisfied that he is absent without leave w.e.f. 01-01-1998 without any reasonable cause and that his further retention in service is not desirable. I, therefore, dismiss him from service w.e.f. 31st July, 1998 (AN) under Rule 177 of BSF Rules, 1969. His absence period w.e.f. 01-01-1998 to 31.07.1998 will be treated as Dies Non�. The individual is struck off from this unit strength w.e.f. 1st August, 1998 (AN).� Thereafter, the petitioner did report for duty on 2nd August, 1998. As earlier to it, the order of dismissal had been passed, he was not permitted to join. 3. From the persual of the facts given above, it becomes apparent: i) That the petitioner was issued a show cause notice on 20th March, 1998; it was indicated that it would not be possible to hold trial by a Security Force Court; ii) That after serving the show cause notice, as no reply was received, the retention of the petitioner in the Force was found to be not acceptable and an order of dismissal came to be passed on 1st August, 1998. 4. It be seen that in the event of a person governed by Border Security Force Act 1968 remaining absent, he can be subjected to rigour of Section 19. On conviction, he can be sentenced to imprisonment which can extend to three years. Action against the petitioner has been taken in terms of Rule 177 of Border Security Force Rules. 4. It be seen that in the event of a person governed by Border Security Force Act 1968 remaining absent, he can be subjected to rigour of Section 19. On conviction, he can be sentenced to imprisonment which can extend to three years. Action against the petitioner has been taken in terms of Rule 177 of Border Security Force Rules. For facility of reference, Section 19 of the Act of 1968 and Rule 177 referred to above, in so far as relevant are being reproduced below: - Section 19: Any person subject to this Act who commits any of the following offence, that is say: - a) absents himself without leave; or b) without sufficient cause overstays leave granted to him; or c) being on leave of absence and having received information from the appropriate authority that any battalion or part thereof or any other unit of the Force, to which he belongs, has been ordered on active duty, fails, without sufficient cause, to rejoin without delay; or d) without sufficient cause fails to appear at the time fixed at the parade or place appointed for exercise or duty; or e) when on parade, or on the line of march, without sufficient cause or without leave from his superior officer, quits the parade or line of march; or f) when in camp or elsewhere, is found beyond any limits fixed, or in any place prohibited, by any general, local or other order, without a pass or written leave from his superior officer; or g) without leave from his superior officer or without due cause, absents himself from any school when duly ordered to attend there shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to three years of such less punishment as is in this Act mentioned.� Rule 177: - The Commandant may, under sub-section (2) of section 11, dismiss or remove from the service any person under his command other than at officer or an subordinate officer.� 5. Another Rule which would be relevant for the purpose of disposal of this petition would be Rule 22. Dismissal or removal of a person other than officers on account of misconduct is visualised by this Rule. Another Rule which would be relevant for the purpose of disposal of this petition would be Rule 22. Dismissal or removal of a person other than officers on account of misconduct is visualised by this Rule. Under normal circumstances, under sub-rule (1) of Rule 22, the person proceeded against is to be given an opportunity by an authority competent to dismiss or remove him from service. This opportunity need not be given if conviction is recorded by the Security Force Court or where the competent authority is satisfied that for reasons to be recorded in writing, it is not possible to give the person concerned the opportunity to show cause. Rule 22 as indicated above is relevant and is reproduced below: - Dismissal or removal of persons other than officers on account of mis-conduct (1) When it is proposed to terminate the service of a person subject of 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 reasonable practicable to give the person concerned an opportunity of showing cause. 6. In the present case, from the perusal of the show cause notice issued on 20th March, 1996, it is not apparent as to why it was not expedient or reasonably practicable to give the petitioner as opportunity of showing cause. If this be the situation, then what has been said by the Supreme Court of India and by this Court while interpreting Article 311 of the Constitution of India and Section 126 of the Jammu and Kashmir Constitution which confers upon the competent authority the power to dispense with holding of enquiry would be attracted to the fact of this case. In Jaswant Singh Vs. State of Punjab and others, AIR 1991 SC 385, the Supreme Court observed that there should be sufficient material in existence before power is invoked under Article 311 (2) that it is not practicable to hold a departmental enquiry. In Jaswant Singh Vs. State of Punjab and others, AIR 1991 SC 385, the Supreme Court observed that there should be sufficient material in existence before power is invoked under Article 311 (2) that it is not practicable to hold a departmental enquiry. The decision to dispense with an enquiry is not to be rested solely on the dixit of the concerned authority. This decision and several other decisions were taken note of by a Division Bench of this Court in the case of State of J&K Vs. Kehar Singh, 2000 KLJ 311. It was observed that the material on the basis of this conclusion is to be arrived at has to be independent of the charges. The question of practicability would depend upon the existing fact situation and surrounding circumstances. There must exist a situation which renders holding of enquiry not reasonably practicable. Such is not the position in this case. As indicated above, a perusal of the show cause notice issued on 20th March, 1996 does not make it apparent as to why it was not expedient or reasonably practicable to afford the petitioner an opportunity to show cause. In view of the above, this petition is allowed. The order passed by the respondent authorities dismissing the petitioner from service is set aside. The petitioner shall stand reinstated. He shall start getting his salary with effect from the date, he makes available a copy of this order to the concerned officer and reports for duty. Respondent authorities are, however, left free to pass a fresh order in accordance with the law. Disposed of accordingly.