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2004 DIGILAW 226 (JK)

Assadullah Khan v. Union Of India

2004-08-02

NISAR AHMAD KAKRU, S.N.JHA

body2004
Per S.N. Jha, CJ: This letters patent appeal is directed against the judgement and order of a learned Single Judge dated February 15, 2001 in SWP No. 565/92, dismissing the writ petition of the appellant. 2. The appellant, an ex-constable of the Border Security Force (BSF), filed the writ petition for quashing order of his dismissal from service dated 26th February, 1991. The short facts of the case are that upon his transfer to 91 Battalion of the Force, the appellant was granted thirty days earned leave from March 5, 1990 to April 3, 1990. Earlier, on representation on the ground of his mothers illness he was posted at BSF Sector Headquarters, Bandipora. On April 9, 1990, instead of joining the appellant filed representation against transfer which according to him remained pending. In the meantime, his wife allegedly fell ill preventing him from joining his duties. On August 12, 1990, a show cause notice was issued to the appellant. The show cause notice stated that he was overstaying without leave with effect from April 4, 1990 (FN). On account of absence without leave for such a long time, the competent authority was of the view that his retention in service was undesirable and the competent authority proposed to terminate his service by way of dismissal. If the appellant wanted to say anything in his defence or against the proposed action, he could do so before August 20, 1990. In case no reply is received by that date, it would be inferred that he has no defence to put forward. 3. According to the appellant, he received the said notice on 5th September 1990 i.e. after the expiry of the date for submission of the show cause. He nevertheless filed show cause but nothing was communicated to him until service of the dismissal order. According to the appellant, he was denied due opportunity of hearing as provided in the Border Security Force Act, 1968 and the Border Security Force Rules, 1969 framed thereunder. The order being in violation of the statutory rules as well as the rules of natural justice is fit to be quashed. 4. The plea of the appellant did not find favour and the writ petition was dismissed by the learned Single Judge. Mr. The order being in violation of the statutory rules as well as the rules of natural justice is fit to be quashed. 4. The plea of the appellant did not find favour and the writ petition was dismissed by the learned Single Judge. Mr. Arshad Andrabi submitted that from the order of the learned Single Judge it appears that the order was passed after perusing the record of enquiry. It thus appears that some kind of inquiry was held by a court of inquiry which led to the impugned order, but the appellant had no information about any such inquiry. The proceeding of the court of inquiry held behind the back of the appellant was in violation of the statutory rules as well as rules of natural justice. He also challenged the authority of the Commandant to pass the impugned order. 5. On behalf of the respondents, it was submitted that under section 62 of the BSF Act, it is mandatory to hold court of inquiry in all cases of unauthorized absence for a period of thirty days. Where the court of inquiry is satisfied that the absence was without authority or sufficient cause, it is required to make a report about such absence for appropriate orders. It was submitted that the impugned order was passed in accordance with the provisions of the Act and the rules framed thereunder and the same does not warrant any interference. 6. Before referring to the provisions relevant for disposal of this appeal, it may be stated that absence without leave or over stay besides being misconduct, also constitutes offence under section 19 of the BSF Act for which the person concerned may be convicted by the Security Force Court and sentenced to imprisonment for a term which amy extend to three years. Chapter III of the Act mentions offences for which a person may be convicted and variously sentenced. It may be mentioned that the Act provides for the Security Force Court and Summary Security Force Court empowered to convict persons subject to the Act and sentence them for offences committed by them on the pattern as provided in the Army Act, and the rules framed thereunder. In the instant case, the appellant was not subjected to any proceedings before the Security Force Court. 7. In the instant case, the appellant was not subjected to any proceedings before the Security Force Court. 7. So far as the cases of unauthorised absence i.e. absence without leave are concerned, from perusal of section 62 of the Act, court of inquiry appears to be the mandatory course. Omitting irrelevant words, the section provides: "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 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 Commandant of the unit to which the person belongs shall make a record thereof in the prescribed manner". 8. Under sub-rule (2), if a person declared absent does not afterwards surrender or is not apprehended, he shall for the purpose of the Act be deemed to be a deserter. It may be mentioned that for the act of desertion, when on active duty, any person subject to the Act is liable to the extreme sentence of death under section 18 of the Act; in other circumstances, he may be sentenced to imprisonment upto seven years. In the instant case, instead of proceeding further in respect of the appellants unauthorised absence / overstay, the respondents apparently treating the absence as misconduct, and not an offence under the Act, passed the order of dismissal. 9. As seen above, the court of inquiry under section 62 of the Act has to be held in the manner as may be prescribed. The manner has been laid down in the rules 170 to 176 occurring in Chapter XIV of the BSF Rules. Rules 170 to 172 provide for composition of court of inquiry, which may consist of one or more members, its assembly and making an order detailing the composition, the time and place for the assembly and the matters which the court is required to investigate. Rule 173 provides for the procedure. Rules 170 to 172 provide for composition of court of inquiry, which may consist of one or more members, its assembly and making an order detailing the composition, the time and place for the assembly and the matters which the court is required to investigate. Rule 173 provides for the procedure. It lays down the proceedings of the court of inquiry shall not be open to public; no counsel or legal representative shall be permitted to appear in the proceedings: the evidence of witnesses shall be taken on oath or affirmation: the court of inquiry may take into consideration documents even though they are not formally proved; the court may also ask the witnesses any question and in any form as is deemed necessary to elicit the truth; it may take into consideration any evidence irrespective of its admissibility under the Indian Evidence Act. The rule further requires that before giving opinion against the person, the court shall afford him the opportunity to know all that is stated against him, cross-examine any witness who has given evidence against him, make a statement and call witnesses in his defence. Having regard to the significance and its bearing on the fate of this case, it would be appropriate to quote the relevant provision in this regard contained in sub-rule (8) of rule 173 as under: "Before giving an opinion against any person subject to the Act, the court will afford that person the opportunity to know all that has been stated against him, cross-examine any witness who have given evidence against him, and make a statement and call witnesses in defence". The presiding officer of the court of inquiry at the end of the proceedings is required to submit the proceedings of the court to the officer or authority who had ordered the court. Another provision which may be noticed in extenso regarding action on the proceedings of the court of inquiry contained in rule 175 runs as under: "175 Action on the proceedings of a court of inquiry. The proceedings of a court of inquiry shall be submitted by the presiding officer to the officer or authority who ordered the court. Such officer or authority on receiving the proceedings may either pass final orders on the proceedings himself, if he is empowered to do so, or refer them to a superior authority." 10. The proceedings of a court of inquiry shall be submitted by the presiding officer to the officer or authority who ordered the court. Such officer or authority on receiving the proceedings may either pass final orders on the proceedings himself, if he is empowered to do so, or refer them to a superior authority." 10. From a bare reference to the above provisions, particularly those of rule 173(8) of the Rules, it is manifest that the person against whom a court of inquiry is being held has to be associated with the enquiry. He has to be informed about the evidence led against him, given opportunity to cross-examine the witnesses who have given the evidence, and also prove his defence by examining witnesses, apart from making a statement of his defence. 11. In the instant case, the respondents did not file objections before the learned Single Judge nor have done so in this appeal. The relevant extracts from proceedings of the court of inquiry, however, were produced before us for perusal at the time of hearing. Perusal of the writ record shows that these papers were filed before the learned Single Judge too. It is on that basis that reference came to be made to the court of inquiry as submitted on behalf of the appellant. From the aforesaid papers, it appears that after the court of inquiry assembled on February 26, 1991 four witnesses, namely, P. Alagesan, Ram Kumar, Sanat Kumar Biswas and J.C. Baruah were examined to prove the appellants unauthorised absence from duty. On the same day, the presiding officer of the court of inquiry, Shri J.S. Jamwal, Deputy Commandant 91 Battalion, BSF, submitted his findings, recommending that the appellant may be declared deserter with effect from April 4, 1990 and dismissed from service with immediate effect. On the same day, the Commandant, Shri. O. P. Dahiya, accorded his concurrence in the opinion of the presiding officer and, accordingly, on the same day, again, the order of dismissal was issued. The record does not indicate that any opportunity of the kind envisaged in rule 173 (8) was ever given to the appellant, leaving no room for doubt that the proceedings before the court of inquiry were held in violation of the statutory rules. The order of dismissal in the circumstances cannot be sustained. 12. The record does not indicate that any opportunity of the kind envisaged in rule 173 (8) was ever given to the appellant, leaving no room for doubt that the proceedings before the court of inquiry were held in violation of the statutory rules. The order of dismissal in the circumstances cannot be sustained. 12. As the impugned order was passed in violation of the statutory rules, we are left with no option but to direct fresh court of inquiry, but considering that the appellant belonged to a uniform service, we are of the view that the misconduct committed by him would not justify his automatic reinstatement. As a matter of fact, it was the alternate submission of counsel for the appellant that the punishment of dismissal awarded to him is excessive and disproportionate, depriving him of all service benefits. It would be in the discretion of the respondents to proceed in the manner they consider fit and proper, of course, after giving due opportunity as may be warranted under rules to the appellant. 13. In the result, the appeal is allowed. The impugned order of dismissal dated 26th February, 1991 as also the impugned order of the learned Single Judge are set-aside. The writ petition stands disposed of accordingly. There will be no order as to costs.