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2006 DIGILAW 3122 (RAJ)

Union of India (UOI) v. Manohar Lal Pareek

2006-11-29

MOHAMMAD RAFIQ, S.N.JHA

body2006
Judgment S.N. Jha, J.-This special appeal is directed against the order of the learned Single Judge dated 110.2005 in S.B. Civil Writ Petition No. 1374 of 1994 allowing the writ petition of the respondent. The respondent had filed the writ petition for quashing the order dated 20.04.1991 by which he had been dismissed from service, and for direction on the respondents to reinstate him with all consequential benefits-amount other reliefs. 2. The respondent was enrolled as a Water Carrier in the Border Security Force (BSF) on 210.1988 as posted in HQ 80 Bn. In 1990 the battalion moved to Srinagar. On 18.07.1990, the respondent was granted 30 days leave from 19.07.1990 to 17.08.1990. According to the respondent, in course of journey he developed high fever and reported at the BSF Hospital at Jammu Tawi where he was admitted on 20.07.1990. He was discharged from the hospital on 23.07.1990 with diagnosis of pyrexia. He continued treatment in his village but his condition did not improve and he was diagnosed as a case of Bil Kochs Chest (TB). Pursuant to his request to extend leave on medical ground, he was informed that medical rest was being given from 19.08.1990 to 18.09.1990 whereafter he should report for duty with fitness certificate. The respondent however was advised further treatment and he applied for sick leave for another thirty days from 19.09.1990 to 110.1990 alongwith medical certificate. On 010.1990 he submitted another application to grant sixty days medical/half pay/earned leave. According to the respondent he was advised medical rest for successive periods. On 011.1990 he was asked by the appellants to either return to the battalion headquarter or in the alternative to report at the nearest BSF hospital for necessary treatment. He reported at the BSF Hospital Jodhpur. After investigation he was referred to TB Hospital for further treatment from 112.1990 to 14.01.1991. He was advised to consult the TB specialist at S.P. Medical College & Associate Group of Hospitals, Bikaner where he was treated for TB. He was advised further medical leave for successive periods from 15.01.1991 onwards. 3. On 01.04.1991 notice was issued to the respondent informing him that he had been absent without leave from 18.08.1990; he had produced medical certificates upto 212.1990 but was still absent without any justification. He was advised further medical leave for successive periods from 15.01.1991 onwards. 3. On 01.04.1991 notice was issued to the respondent informing him that he had been absent without leave from 18.08.1990; he had produced medical certificates upto 212.1990 but was still absent without any justification. He was informed that because of his absence without leave for such a long period, his further retention in service was undesirable, and the authority i.e. Commandant 80 Bn. proposed to terminate his service by way of dismissal. If he wanted anything to urge in defence, he could do so before 20.04.1991. In case no reply is received by that date, it would be inferred that he had no defence to offer. 4. Case of the respondent is that on 15.04.1991 he sent reply to the said notice stating therein that he had been advised treatment and medical rest upto 22.04.1991 for which he had already sent medical certificates, he requested the authority not to proceed with the contemplated action till he is given an opportunity of hearing. He reported at the transit camp, Jammu on 24.04.1991. Finally, he arrived at his battalion in late night on 26.04.1991. 27th and 28th April, 1991 being holidays, he was interviewed by the Commandant on 29.04.1991 and told that as no reply to the show cause notice had been received before 20.04.1991, he had been dismissed from service with effect from 20.04.1991. 5. Stating these background facts in the writ petition the respondent urged that his dismissal from service without holding any enquiry into the absence was unjust, unfair and unconstitutional, and violative of the statutory provisions; the impugned order, therefore, deserved to be set aside. 6. In their reply, the appellants stated that a Court of Inquiry had been constituted vide order No. 4515-17 dated 210.1990 to inquire into the circumstances of respondents overstaying his leave. After completing the enquiry, the Court of inquiry gave its opinion to the effect that because of continuous absence from duty despite repeated directions, the retention of the respondent in the service of the BSF was not desirable. After completing the enquiry, the Court of inquiry gave its opinion to the effect that because of continuous absence from duty despite repeated directions, the retention of the respondent in the service of the BSF was not desirable. In accordance with the opinion of the Court of Inquiry, a show cause notice was issued to the respondent on 01.04.1991 and since nothing was heard from him within the time allowed by the said notice, in view of his continuous absence of 240 days, he was dismissed from service vide letter no. Rec/80Bn/91/180 dated 20.04.1991. The appellant stated that the order of dismissal was not only just, proper and legal, but also necessary to maintain discipline in the Force. 7. The learned Single Judge observed that Rule 173 of the BSF Rules lays down the procedure of Court of inquiry, Sub-rule (8) thereof provides that before giving an opinion against any person subject to the Act, the Court will afford him an opportunity to know all that has been stated against him, to cross-examine any witnesses who have given evidence against him, and make a statement and call witnesses in his defence. Observing thus, the learned Single Judge held as follows- "In the present case the respondents appointed the Court of inquiry but failed to satisfy as to whether any opportunity was given to the petitioner to defend himself as prescribed under Sub-rule (8) of Rule 173 of the Rules of 1969. In fact neither the record of the inquiry is produced by the respondents alongwith their reply nor is shown to the Court at the time of hearing. This clearly shows that no opportunity to defend himself as prescribed under Sub-rule (8) of Rule 173 was given by the respondents to the petitioner. The notice to show cause dated 01.04.1991 cannot be treated as a notice under Sub-rule (8) asit pertains to tentative action of the respondents. In view of it the Court of inquiry on basis of which the petitioner was dismissed from service is laconic". 8. Distinguishing the decision in Union of India vs. Ramphal, AIR 1996 SC 1500 = 1996 (7) SCC 546 , which had been relied upon on behalf of the appellants-the learned Single Judge concluded, "there is violation of Sub-rule (8) of Rule 173 of the BSF Rules, 1969 which is mandatory in nature. The same makes the order impugned void". 8. Distinguishing the decision in Union of India vs. Ramphal, AIR 1996 SC 1500 = 1996 (7) SCC 546 , which had been relied upon on behalf of the appellants-the learned Single Judge concluded, "there is violation of Sub-rule (8) of Rule 173 of the BSF Rules, 1969 which is mandatory in nature. The same makes the order impugned void". The learned Single Judge accordingly quashed the impugned order dated 20.04.1991 with all consequential benefits. 9. We heard Shri Vineet Kumar Mathur, Assistant Solicitor General for the appellants and Shri S.K. Nanda for the respondents at length. 10. Shri Mathur submitted that Section 11 of the Border Security Force Act, 1968 (in short the Act) confers independent power on the competent authority as specified therein, depending on the rank of the person concerned, to dismiss, remove or reduce in rank, and the respondent had been dismissed from service by Commandant of the battalion being the competent authority in exercise of the said power. The learned Single Judge, Counsel urged, committed error in interfering with the impugned order on account of alleged non-compliance of Sub-rule (8) of Rule 173 of the BSF Rules, 1969. Shri Mathur submitted that in Union of India vs. Ramphal, (Supra), the respondent had been dismissed from service after serving identical show cause notice which was upheld by the Apex Court, Counsel pointed out that relying on the provisions of Section 11(2) of the Act read with Rule 20 of the Rules, the Supreme Court held that there has been due compliance of the relevant provisions. Counsel submitted that Rule 20 of the BSF Rules has since been amended vide S.O. 436(E) dated 24.05.1990 but the import of the amended provision is the same as before. Counsel also referred to the provisions of Section 62 of the Act. 11. On behalf of the respondent, Shri S.K. Nanda submitted that on the admitted case of the appellants, a Court of Inquiry had been appointed to investigate the circumstances of the respondents absence. The Court of Inquiry was required to observe the procedure laid down in Rule 173, especially Sub-rule (8), and in the absence of any pleading muchless material to suggest the opportunity of hearing had been given, the conclusion is inescapable that there was non-compliance of the relevant provisions rendering the impugned order illegal. 12. The Court of Inquiry was required to observe the procedure laid down in Rule 173, especially Sub-rule (8), and in the absence of any pleading muchless material to suggest the opportunity of hearing had been given, the conclusion is inescapable that there was non-compliance of the relevant provisions rendering the impugned order illegal. 12. In reply, Shri Mathur submitted that the respondent did not respond to show-cause notice, and as he remained absent from enquiry, there was no occasion to give him opportunity to prove his defence. 13. Before we examine the rival contentions of Counsel for the parties, we may briefly notice the scheme of the Act and the Rules framed thereunder. 14. Section 4 of the Act provides that there shall be an armed force of the Union called the Border Security Force for ensuring security of the borders of India. Subject to the provisions of the Act, the Force shall be constituted in such manner as may be prescribed and the conditions of service of the members of the Force shall be such as may be prescribed. Section 10 lays down that subject to the provisions of the Act and the Rules, the Central Government may dismiss or remove from the service any person subject to the Act. 15. Section 11 on which heavy reliance has been placed on behalf of the appellants, runs as under-"Dismissal, removal or reduction by the Director-General and by other officers.-(1) 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 person 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 rules." 16. Chapter III specifies various offences under the Act which can be tried by Security Force Court. .(4) The exercise of any power under this Section shall be subject to the provisions of this Act and rules." 16. Chapter III specifies various offences under the Act which can be tried by Security Force Court. For the purpose of this case, we may need notice only Section 19 but before noticing the Section we may mention that Security Force Courts are akin to Courts Martial under the Army Act. These Security Force Courts are constituted to try persons (subject to the Act) for offences under the Act. The trial for committing the offence(s) is in addition to and without prejudice to the disciplinary action which may be taken with respect to any act constituting misconduct and also an offence. 17. Section 19 may now be quoted so far as relevant as under- "Absence without leave.-Any person subject to this Act who commits any of the following offences, that is to say- .(a) absents himself without leave; or .(b) without sufficient cause overstays leave granted to him; or .(c) beingon 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 shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned". 18. Section 48 mentions punishments awardable by Security Force Courts in respect of the offences committed by the persons subject to the Act and convicted by Security Force Courts. The punishments are-"(a) death; .(b) imprisonment which may be for the term of life or any other lesser term but excluding imprisonment for a term not exceeding three months in Force Custody; .(c) dismissal from the service; .(d) imprisonment for a term not exceeding three months in Force Custody; 19. It is relevant to mention here that the punishments referred to in Section 48 are to be inflicted "according to the scale", that is to say, the punishment next in sequence is treated as less severe than the punishment preceding it. It is relevant to mention here that the punishments referred to in Section 48 are to be inflicted "according to the scale", that is to say, the punishment next in sequence is treated as less severe than the punishment preceding it. Thus imprisonment whether for a term of life or any other lesser term exceeding three months in Force custody is treated to be more severe than punishment of dismissal from service mentioned in Clause (c). This is also evident from Sub-section (2) of Section 48 which lays down that "each of the punishments specified in Sub-section (1) shall be deemed to be inferior in degree to every punishment preceding it in the above scale". Reference may also be made to the case of Union of India vs. R.K. Sharma, 2001 (9) SCC 592 . 20. Coming to the Rules i.e. the BSF Rules, 1969, Rules 20, 21 and 22 deal with termination of service. While Rules 20 and 21 relate to termination of service of officers, Rule 22 deals with dismissal or removal of persons other than officer on account of misconduct. Rule 22 is the relevant provision for the purpose of this case as the respondent was a Water Carrier i.e. other than officer, it may, therefore, be quoted in extenso 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- (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 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 . . . . .(4) All cases of dismissal or removal under this rule, shall be reported to the Director-General." 21. The decision in Union of India vs. Ramphal, (Supra) was rendered on the basis of the provisions of Rule 20 as it stood prior to amendment vide S.O. 436(E) dated 24.05.1990, and is, therefore, of little assistance to the appellants. As a matter of fact, not only Rule 20, but Rules 21 and 22 as they stand now were substituted by the said amendment dated 24.05.1990. 22. We may at this stage deal with the argument of Shri Mathur with reference to Section 62. Section 62 occurs in the Chapter V captioned "Arrest and Proceedings before Trial"? As seen above, trial in the context of the Act means trial by a Security Force Court. Section 62 deals with inquiry in case of unauthorized absence i.e. absence without leave. It may be recalled that under Section 19 of the Act, absence without leave is an offence for which the person concerned, on conviction by the Security Force Court, is liable to suffer imprisonment for a term which may extend to three years. Section 62 provides for enquiry before the person is put on trial by Security Force Court. For easy reference the Section may be quoted 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, . . . . 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. (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". 23. . . . 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". 23. On a plain reading of the provision, it would be manifest that a Court of inquiry is appointed in cases of absence from duty, to make enquiry inter alia in respect of the absence of persons and where the Court of inquiry is satisfied that the absence was without authority or other sufficient cause, it 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. 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. 24. It would thus appear that the enquiry under Section 62 by itself does not result in any punishment. Where the person fails to satisfy the Court of inquiry that his absence was not authorized or that there was sufficient cause for his absence, a declaration of absence may be made in the record, and if he does not surrender thereafter, or is not apprehended, he is deemed to be deserter. Once he is deemed to be deserter, he becomes liable to punishment under Section 18. Under Section 18, he is liable to suffer imprisonment for a term which may extend to seven years. If the desertion is committed by a person when on active duty or under orders for active duty, he becomes liable to even capital punishment i.e. sentence of death. Desertion, it would thus appear, is a serious matter and that is why a special provision has been made for a fact finding enquiry under Rule 62. Such an enquiry is mandatory in view of the provisions of Rule 174 of the Rules, referred to hereinbelow. The submissions of Shri Mathur apropos Section 62 of the Act would, therefore, appear to be totally irrelevant in this case. 25. Having noticed the above provisions, we may now notice Rule 173 of the Rules. Such an enquiry is mandatory in view of the provisions of Rule 174 of the Rules, referred to hereinbelow. The submissions of Shri Mathur apropos Section 62 of the Act would, therefore, appear to be totally irrelevant in this case. 25. Having noticed the above provisions, we may now notice Rule 173 of the Rules. It is on the ground of non-compliance of Sub-rule (8) of Rule 173 that the learned Single Judge has interfered with the punishment awarded to the respondent. Rule 173 occurs in Chapter XIV captioned “Court of inquiry”. Among other provisions, Rule 170 deals with composition of Court of inquiry. Rule 173 deals with procedure of Courts of inquiry. Rule 174 refers to the situation in which Court of inquiry may be held. Rule 175 refers to the action on the proceedings of a Court of inquiry. So far as relevant, these rules may be quoted as under- “173. Procedure of Court of inquiry.-(1) The proceedings of a Court of inquiry shall not be open to the public. Only such persons may attend the proceedings as are permitted by the Court to do so. .(2) The evidence of all witnesses shall be taken on oath or affirmation. .(3) Evidence given by witnesses shall be recorded in narrative form unless the Court considers that any questions and answers may be recorded as such. .(4) The Court may take into consideration any documents even though they are not formally proved. .(5) The Court may ask witnesses any question, in any form, that they consider necessary to elicit the truth and may take into consideration any evidence, whether the same is admissible under the Indian Evidence Act, 1872 (1 of 1872) or not. .(6) . . . . .(7) . . . . .(8) 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 witnesses who have given evidence against him, and make a statement and call witnesses in his defence. .(9) . . . .174. Court of inquiry when to be held.-(1) A Court of inquiry may be held to investigate into any disciplinary matter or any other matter of importance. .(2) In addition to a Court of inquiry required to be held under Section 62, a Court of inquiry shall be held in the following cases- . .(9) . . . .174. Court of inquiry when to be held.-(1) A Court of inquiry may be held to investigate into any disciplinary matter or any other matter of importance. .(2) In addition to a Court of inquiry required to be held under Section 62, a Court of inquiry shall be held in the following cases- . . . . . 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.” 26. From a bare reading of the above rules, it would be evident that the rules do not provide nor contemplate imposition of any penalty by the Court of inquiry. The inquiry contemplated therein - if we may say so - is in the nature of fact finding inquiry. On completion of the inquiry, under Rule 175, the proceedings is to be submitted to the officer/authority who ordered the Court of inquiry. 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. Thus the proceeding of the Court of inquiry may provide foundation for imposition of the punishment. Question is whether the non-compliance of Sub-rule (8) of Rule 173 per se would vitiate final order which may be passed on the proceedings. If the proceedings of the Court of inquiry are in nature of fact finding inquiry, we have doubts if non-compliance of the provisions of Sub-rule (8) would per se vitiate the final order. It may be recalled that under Sub-rule (1) of Rule 174, a Court of inquiry may be held to investigate into any disciplinary matter which means that Court of inquiry is not mandatory in every case of disciplinary action. In other words, even without a Court of inquiry in respect of a disciplinary matter, punishment of dismissal or removal can be awarded (to a person other than officers) under Rule 22 read with Section 11(2) of the Act. In other words, even without a Court of inquiry in respect of a disciplinary matter, punishment of dismissal or removal can be awarded (to a person other than officers) under Rule 22 read with Section 11(2) of the Act. If the Court of inquiry under Chapter XIV is optional, we do not think, punishment can be set aside only on the ground that the person concerned was denied the opportunity to defendant himself in the manner contemplated under Rule 173(8). 27. Indeed, we are inclined to think that the impugned action dismissing the respondent from service was taken under Rule 22 of the Rules read with Section 11(2) of the Act, and further read with Rule 177 of the Rules. Rule 177 lays down that the Commandant may, under Sub-section (2) of Section 11, dismiss or remove from the service any person under his command other than an officer or a subordinate officer. The learned Single Judge was, therefore, not right in setting aside the punishment of dismissal on the solitary ground of non-observance of the provisions of Sub-rule (8) of Rule 173. 28. However, notwithstanding our above adverse finding, the question for consideration remains whether the impugned order of dismissal can be sustained. The question has to be answered on the touchstone of Rule 22 which, as seen above, lays down the manner of dismissal or removal from service on account of misconduct. There is no dispute that unauthorized absence of the respondent was treated as misconduct and that is how he came to be dismissed from service. 29. We must clarify here - before proceeding further - that power to dismiss or remove under Section 11(2) of the Act is an independent power as held in Gouranga Chakraborty vs. State of Tripura, 1989 (3) SCC 314 and Union of India vs. Ram Phal, 1996 (7) SCC 546 , and to that extent the submission of Shri Vineet Mathur must be accepted. Under Section 11(2) the competent authority “may dismiss or remove from service any person under his command”. Rule 22(1) provides that when it is proposed to terminate the service of a person subject to the Act, other than officer, he shall be given, by the competent authority, opportunity to show cause “in the manner specified in Sub-rule (2) against such action”. Rule 22(1) provides that when it is proposed to terminate the service of a person subject to the Act, other than officer, he shall be given, by the competent authority, opportunity to show cause “in the manner specified in Sub-rule (2) against such action”. For the sake of convenience, Rule 22(2) may be quoted again as under- “(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 service is undersirable, it shall be inform him together with all reports adverse to him and he shall be called upon to submit, in writing, his explanation and defence : . . . .” 30. On a plain reading of Rule 22(2), it is manifest that while intending to take action of dismissal or removal from service, the authority is required to furnish copies of all adverse reports with opportunity to the person to submit written explanation or defence. There is nothing on record - and it is not even so pleaded by the appellants - that copies of the report or reports adverse to the respondent were supplied while asking him to submit show cause. The show cause notice dated 01.04.1991 merely stated that he was unauthorizedly absent from 18.08.1990, and because of his absence without leave his further retention in service was undersirable. The notice in fact informed the respondent that it was tentatively proposed to terminate his services by way of dismissal. We do not think the procedure was in conformity with Rule 22(2) of the Rules. 1.31. Thus even if we accept the case of the appellants that the commandant was competent to dismiss the respondent under Section 11(2) of the Act, such dismissal had to be in the manner specified in Rule 22(2) as laid down in Rule 22(1), and therefore, the Commandant was required to furnish the report indisputably submitted to him on conclusion of the Court of inquiry under Rule 175 of the Rules -calling upon the respondent to submit explanation and his defence in the light of findings in the said report. It is true that the Court of inquiry was conducted exparte but it does not mean that the action could be taken on the basis of those findings in the report without giving opportunity to the respondent to submit explanation in defence as specifically provided in Rule 22(2). 2.32. We have observed above that proceedings of the Court of inquiry under Rule 173 per se does not result in punishment, and where report of the such enquiry is proposed to be made the basis, the requirement of furnishing copy of the findings and report, giving opportunity to submit explanation, cannot be dispensed with. This is the only limited right available to the person and having regard to the consequences of the proposed action viz. dismissal or removal, he cannot be deprived of that right. Rule 22(3) too lays down that the authority can dismiss or remove the person “after considering his explanation and defence if any”. 3.33. In Union of India vs. Ram Phal, (Supra), the order of dismissal had been held to be illegal by the trial Judge (in a civil suit) on the premise inter alia that after a person is deemed to be a deserter he is to be tried by a Security Force Court under Section 19 of the Act, and only thereafter penalty can be imposed upon him. The trial Judge had further held that the impugned action cannot be supported under Section 11(2) of the Act. It had further been held that power under Section 11 read with Rule 177 could be exercised only after holding the enquiry. The Supreme Court noticed the decision in Gouranga Chakraborty vs. State of Tripura, (Supra) and held that the Commandant had power to dismiss or remove any person under his command other than an officer or the subordinate officer which was an independent power, and exercise of the power 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 without sufficient cause. However, the Supreme Court rejected the contention raised on behalf of Union of India that for exercising power under Section 11(2) of the Act no enquiry is required to be held, and considering the nature of the Force and the utmost necessity of maintaining discipline, giving show cause notice should be regarded as sufficient compliance with the principles of natural justice. The Supreme Court observed that though Section 11 is silent in this behalf but after introduction of Rule 20 in the Rules it cannot be validly contended that so enquiry need be held while exercising the power under Section 11(2). Having held thus, their Lordships found that the respondent had been called upon to show cause as required by Sub-rule (6) of Rule 20, but he did not reply to the notice. In that view of the matter, it was not incumbent upon the Director General to appoint an enquiry officer to conduct the enquiry in the manner prescribed by Rule 21. 4.34. It is to be kept in mind, as mentioned above, that Rules 20, 21 and 22 as they stood earlier and in the context of which the case of Ram Phal was decided, were amended vide S.O. 436 (E) dated 24.05.1990, and therefore, the decision which was rendered on the basis of the rules as they stood at the relevant time cannot be treated as conclusive on the point. 5.35. Apart from the fact that copy of the report/findings of Court of inquiry was not furnished, it appears that the respondent had sent his reply on 15.04.1991 wherein he requested for postponement of the proposed action till he is given opportunity of hearing. As per his commitment, he left home to join the Battalion but as circumstances would have it, he was held up and reached the Battalion in the night of 26.04.1991 and interviewed by the Commandant on 29.04.1991. The dismissal order had been passed in the meantime on 20.04.1991 on the premise that his reply to the show cause had not been received by then. 6.36. It is not in dispute that the respondent overstayed his leave. According to him, overstay was on account of his illness and prolongation of treatment. The appellants do not deny the respondent’s case of illness. In fact, there is plenty of evidence brought on record by the respondent in the shape of medical prescriptions etc. 6.36. It is not in dispute that the respondent overstayed his leave. According to him, overstay was on account of his illness and prolongation of treatment. The appellants do not deny the respondent’s case of illness. In fact, there is plenty of evidence brought on record by the respondent in the shape of medical prescriptions etc. issued by government hospitals including BSF hospitals showing that the respondent was ill. The plea of illness, therefore, ex facie does not appear to be a pretence. 7.37. In the facts and circumstances, we are satisfied that his dismissal from service was violative of the rules and also unjustified. 38. Coming to the question of relief , we do not think the respondent can be granted relief of reinstatement. He has remained out of job for fifteen years, and his reinstatement in a para military force like the BSF which has to look after the security of country’s borders, would not be in the interest of the service. We are of the view that reinstatement at this stage would not be the correct option. The interest of justice would be served by paying him compensation. 8.39. We were informed by Shri Vineet Mathur that the scale of pay of the post of Water Carrier from 01.01.1986 was Rs. 750-940 which was revised to Rs. 2550-3200 from 01.01.1996. The respondent remained in employment for about two and a half years from 210.1988 to 20.04.1991. Payment of the sum equivalent to the minimum pay of the scale(s) for ten years, that is @ Rs. 750 for the period from 20.04.1991 to December 1995 and @ Rs. 2550 for the period from January, 1996 to April, 2001 which comes to Rs. 2,04,200/-rounded to Rs. two lakhs would be sufficient compensation. 9.40. We accordingly, while holding dismissal of the respondent to be illegal direct that he be paid compensation of Rs. two lakhs, and in this manner and to this extent modify the order of the learned Single Judge. We grant time upto 31.01.2007 to make the payment failing which the respondent will be entitled to interest @ 6% per annum on belated payment thereafter. 10.41. In the result, the appeal is dismissed but subject to modification in the order of the learned Single Judge mentioned hereinabove. There will be no order as to costs.