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2008 DIGILAW 457 (JK)

Manzoor Ahmad Shah v. Union of India

2008-11-26

MUZAFFAR HUSSAIN ATTAR

body2008
1. Heard. Admit. Issue fresh notice to otherside. 2. Mr. S. Gowhar accepts notice on behalf of respondents. He states that the objections already filed be treated as counter affidavit. Prayer is allowed. 3. Mr. Hussain learned counsel for petitioner, submits that he does not want to file any rejoinder. The supplementary affidavit already filed may be treated as rejoinder. Prayer is allowed. 4. With the consent of learned counsel for parties, the petition is taken up for final disposal. Heard learned counsel for parties. 5. The case of petitioner is that he was working as Follower in 103 Battalion BSF. He has been dismissed from service vide order No.Estt/545/Dismiss/103/MA/06/11677-977 dated 9th September 2006 by respondent No.3. 6. The petitioner challenges the aforesaid order on number of grounds inter alia that the order of dismissal is a major punishment and also is an offence under BSF Act and Rules framed thereunder. Punishment of dismissal can be imposed only after a full dressed trial which is to be held by Security Force Court. Section 48 of BSF Act confers power on the competent authority to inflict punishment which also includes dismissal as well. It is further submitted by learned counsel for the petitioner that before punishment is inflicted upon delinquent official, a charge sheet is required to be framed in terms of Rule 44 of BSF Rules. Thereafter in terms of Rule 48 and 49 evidence is to be recorded. The delinquent official is to be given an opportunity to lead defence evidence and it is only thereafter that a finding can be returned and action taken. 7. In the present case petitioner has been dismissed from service by respondent No.3 by invoking powers under Rule 22 of sub rule (2) of BSF Rules, which reads as under:- "Rule 22: Dismissal or removal of person other than officer on account of misconduct.- 1. When it is proposed to terminate the service of person subject to the Act other than an fficer, 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. When it is proposed to terminate the service of person subject to the Act other than an fficer, 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 Security Force Court; or b) Where the competent authority is satisfied that for reasons to be recorded in writing , it is not expedient or reasonably practicable to give the person concerned an opportunity of showing cause. (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 is the 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 a Deputy Inspector General shall not dismiss or remove from service, a subordinate officer and above the rank of Subedar. (4) All cases of dismissal or removal under this rule, shall be reported to Director General" 8. Sub-rule (2) of Rule 22 provides that after considering the facts of misconduct of the concerned person, if the competent authority is satisfied that trial of such a person is inexpedient or impracticable then the authority shall inform the delinquent official about the same and call upon him to submit his explanation in defence. 9. Sub-rule (3) of Rule 22 provides that after considering the explanation and defence, if any, the authority may dismiss or remove him from service with or without pension. 10. The rights of petitioner as an employee of the respondents are protected by the Constitution and by Statutory Rules. 9. Sub-rule (3) of Rule 22 provides that after considering the explanation and defence, if any, the authority may dismiss or remove him from service with or without pension. 10. The rights of petitioner as an employee of the respondents are protected by the Constitution and by Statutory Rules. The authority if satisfied on the basis of material available to him can take recourse under sub-rule (2) of Rule 22, after recording reasons for doing the same and dismiss him from service without conducting the regular trial/enquiry. 11. The petitioners status as an employee of the respondents is guaranteed under Art. 311 of the Constitution and the BSF Act and Rules. The petitioner can be dismissed from service only in compliance of the mandate of Constitution and in compliance of the BSF Act and Rules. 12. The impugned order which dismissed the petitioner from service has been purportedly passed by invoking powers as conferred on the Authority under sub-rule (2) 22 of BSF Rules. While invoking the said rule to pass order of dismissal of the petitioner from service, the Authority has neither recorded any reason nor satisfaction as to why it is inexpedient and impracticable to hold regular trial and to dismiss the petitioner from service. Even the expressions inexpedient or impracticable have not been recorded in the impugned order. 13. An employee enjoys a status in law, of which he can be denuded only in accordance with Procedure established by law. 14. In view of what has been stated above it becomes writ large on face of record that there has been total non-compliance of Constitutional and Statutory safeguards available to petitioner. 15. The writ petition is accordingly allowed. The impugned order No. Est/545/Dismiss/103/MA/or/ 11677-977 dated 9.9.2006 on the face of it, is illegal and cannot sustain in the eye of law, which is accordingly quashed. However the quashment of impugned order does not put a bar on the powers of competent authority for taking appropriate action against the petitioner in terms of law, if same is required to be taken. The petition is accordingly disposed of.