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2010 DIGILAW 313 (JK)

Altaf Hussain Mir v. Union Of India

2010-05-24

MOHAMMAD YAQOOB MIR

body2010
1. Adherence to the principles of natural justice has no substitute. This cherished principle assumes more and more significance when an order having adverse effects on the rights, is passed without providing opportunity to the aggrieved to explain cause for not passing such order. Petitioner no doubt belongs to a disciplined force so has to maintain the discipline at all levels but despite that harshest order of dismissal, which may in the facts and circumstances be permissible but cannot be ordered unless he is given opportunity of being heard. 2. Petitioner admittedly was working as Constable bearing No.91403637 attached with 151 Bn. BSF, had proceeded on earned leave for 55 days with effect from 18.7.2001, so was supposed to join back on 10.9.2001. Failure to report back culminated in his dismissal from service pursuant to order impugned issued by respondent No.3 under No.Estt/26/Disc/151 Bn/2001/12137-12260 dated 15th of December, 2001. 3. The short point which was agitated for quashment of the order is that the respondents did not issue the requisite show cause notice vis-a-vis proposal to dismiss the petitioner from service, therefore, petitioner has been deprived of explaining his non-joining on 10.9.2001. In the petition it is specifically pleaded that due to serious illness of his mother, petitioner could not resume his duties on the due date, therefore, had sent an application by post to the respondent No.3 for extension of leave. The respondent No.3 had issued notice dated 27th of September, 2001, which is reproduced here-under: "No.Estt/24/OSL/151/2001/9592-93 Tac Headquarters. 151 Bn. BSF C/O 56 APO Dated; the 27, Sept. 2001 To No.91403637 Const Altaf Hussain, Vill-Rishinagar, PO-Ramnagar, Distt- Pulwama, Jammu & Kashmir. Sub:- OVER STAYAL FROM LEAVE It is to inform, you that you had been granted 55 days E/Leave wef 18-07-2001 to 10-09 2001 and supposed to resume your duties by 10-09-2001 at Tac HQ 151 Bn. BSF, Nillu but you had not done so far and overstaying from leave without any reasonable cause. 2. In view of above, you are hereby directed to report this HQ forthwith along with documents if any for overstayal otherwise strict disciplinary action will be constituted against you under BSF Act and rules. for Commandant 151 Bn, BSF Copy to :- Bn. HQ 151 Bn. BSF for info. 2. In view of above, you are hereby directed to report this HQ forthwith along with documents if any for overstayal otherwise strict disciplinary action will be constituted against you under BSF Act and rules. for Commandant 151 Bn, BSF Copy to :- Bn. HQ 151 Bn. BSF for info. Intimate his leave due, OSL, Extension, Good/Bad entry to this HQ at the earliest." When the petitioner did not respond to this communication/notice, the respondents conducted the enquiry and on conclusion of enquiry the order impugned dated 15th of December, 2001 has been passed, which is reproduced here-under: "OFFICE OF THE COMANDANT : 151 BN BSF C/O 56 APO ORDER I have personally gone through the case of absenting without leave against No.91403637 Const. Altaf Hussain of this unit. He was an opportunity vide out letter No.Estt/24/OSL/151/2001/9592-93 Dated 27 Sep. 2001 and No.Estt/THQ/151/2001/11332 dated 17 Nov. 2001 which he has not availed of. I am satisfied that he is absenting without leave, without any reasonable cause and that his further retension in service is not desirable, I, therefore, dismiss him from the service w.e.f. 15 Dece. 2001 (AN). 2. The period of absence without leave from 11 Sep. 2001 to 15 Dec. 2001 be treated as `DIES NON’ for all purpose. He is struck off strength of 151 Bn. BSF from 16th Dec. 2001 (FN) 3. Recovery if any be recovered from the individual from the outstanding dues of the individual. No.Esst/26/Disc/151/BN/2001/12137-12260 (P.J.Rao) Dated the  15 Dec.2001 COMMANDANT 151 BN.BSF DISTRIBUTION 01. No. 91403637 Const: for inf. Altaf Hussain Vill: Rishi Nagar Post: Ram Nagar Distt: Pulwama (J&K) 2. All FHQ (Dtes) 3. All FTR HQRS 4. SHQRS 5. All Institution 6. All units. 7. The Superintendent of Police : Request obtain Distt: Pulwama (J&K) I/Car from Indvl. & send to the office as early as possible INTERNAL 01. All Coys 2. All Branches 03. SI/QM 4. Ration NCO 05. BNHQ/THQ GD-151 BN BSF 6. File. 4. It is no-where mentioned that the show cause notice for proposing dismissal from service was served upon the petitioner when the same was indispensable. Non-issuance of show cause notice, according to learned counsel, renders the order of dismissal as illegal. In support of this contention, learned counsel has relied on the judgment reported in AIR 1996 SC 1500 . 5. It is no-where mentioned that the show cause notice for proposing dismissal from service was served upon the petitioner when the same was indispensable. Non-issuance of show cause notice, according to learned counsel, renders the order of dismissal as illegal. In support of this contention, learned counsel has relied on the judgment reported in AIR 1996 SC 1500 . 5. In opposition to the contentions raised by the learned counsel for the petitioner, learned counsel for the respondents vehemently highlighted that the notice was issued to the petitioner, he did not respond to that and still enquiry was conducted and impugned order passed thereon. Any type of indiscipline is totally intolerable. Further added that otherwise also there was no requirement of issuing any show cause notice as the same is not envisaged by Section 11 of. Border Security Force Act, 1968 (hereinafter for short referred to as "the Act"). In support of this contention reliance has been placed on the judgment reported in AIR 1989 SC 1321 . 6. While considering the submissions as made, the important question which emerge for consideration is as to whether show cause notice vis-a-vis proposed action of dismissal was required to be served upon the petitioner. If yes, whether the notice referred above as has been served upon the petitioner, would amount to substantial compliance. The answer vis-a-vis first situation has to be in affirmative, show cause notice indicating proposed action of dismissal from service was required to be served upon the petitioner as is indispensible in terms of Rule 20 of The Border Security Force Rules, 1969 (for short BSF Rules). The said rule has been incorporated vide SO 166 dated 14th of January, 1998 (with effect from 24.1.1998) which clearly provide for giving an opportunity to show cause in the manner prescribed therein. Non-adherence to the same would render the order of dismissal as illegal. 7. The answer to the second situation has to be in negative. The notice as referred to hereinabove is simply an information to the petitioner to resume the duty and to report along with documents, if any, for over stayel otherwise strict disciplinary action will be initiated under the BSF Act and BSF Rules. The notice nowhere provides that the authority has proposed dismissal from service. The notice as referred to hereinabove is simply an information to the petitioner to resume the duty and to report along with documents, if any, for over stayel otherwise strict disciplinary action will be initiated under the BSF Act and BSF Rules. The notice nowhere provides that the authority has proposed dismissal from service. The disciplinary action as mentioned therein would mean that the enquiry would be conducted which has been conducted but on conclusion of the enquiry, the dismissal from service was proposed, Therefore, it was necessary to ask the petitioner to show cause. In case such wording would have been used in the earlier notice referred above, then there was no such requirement. 8. The judgment referred to by learned counsel for the petitioner is quite applicable to the present case. In the referred judgment rendered in Union of India & Ors. v. Ram Pal ( AIR 1996 SC 1500 ), the Hon’ble Apex Court did not agree with the contention raised therein 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 a show cause notice should be regarded as sufficient compliance with the principles of natural justice. Section 11 is silent in this behalf and it appears that earlier there was no Rule indicating the circumstances and the manner in which that power was to be exercised. But now Rule 20 of the BSF Rules provides for issuance of show cause. 9. In the reported judgment notice was served upon the petitioner (Constable) therein to the effect that tentatively termination from service by way of dismissal is proposed and the Constable was asked to reply to show cause notice which he failed to reply. In that context it was held that the Rule has been complied as the petitioner therein had ignored to respond to show cause notice for proposed dismissal, in that context it was held that it was not incumbent upon Director General to appoint an enquiry officer to conduct an enquiry in the manner prescribed by Rule 21, thus the prescribed procedure was followed before passing the dismissal order. 10. Applying the said ratio to the instant case, the requisite show cause notice proposing dismissal from service was not served upon the petitioner. 10. Applying the said ratio to the instant case, the requisite show cause notice proposing dismissal from service was not served upon the petitioner. The notice as referred hereinabove dated 27th of September, 2001 by no means can be termed to be a substitute for the requisite show cause notice nor can it be termed as substantial compliance so as to be construed to have been issued in consonance with Rule 20 of the BSF Rules. 11. In the judgment rendered by the Apex Court in Sri Gouranga Chakraborty v. State of Tripura & anr. (AIR 1989 Supreme Court 1321), it was held that the power to issue order for dismissal from service available to the prescribed authority under Section 11(2) of the BSF Act is independent. The position of Section 11(2) of the Act and Rule 177 of the Rules has been noticed. It shall be quite apt to quote from para 24 as to what has been held: "We have scrutinized the relevant provisions of the BSF Act as well as the BSF Rules framed thereunder and we has not hesitation to hold that the power under S. 11(2) of the Act empowering the Prescribed Authority, i.e. the Commandant 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 said Rules is an independent power which can be validly exercised by the Commandant as a Prescribed Officer 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........................ The Prescribed Authority i.e. the Commandant is competent to exercise the power under S.11(2) of the said Act and to dismiss any person under his command as prescribed under Rule 177 of the BSF Rules. It is also to be noticed in this connection that Rule 6 of the said Rules has specifically provided that in regard to matters not specifically provided in the Rules, it shall be lawful for the Competent Authority to do such thing or take such action as may be just and proper in the circumstances of the case. It is also to be noticed in this connection that Rule 6 of the said Rules has specifically provided that in regard to matters not specifically provided in the Rules, it shall be lawful for the Competent Authority to do such thing or take such action as may be just and proper in the circumstances of the case. In this case though any procedure has not been prescribed by the Rules still the Commandant duly gave an opportunity to the appellant to submit his explanation against the proposed punishment for dismissal from service for his absence from duty without any leave and overstaying leave without sufficient cause. The appellant did not avail of this opportunity and he did not file any show cause to the said notice. Thus the principle of natural justice was not violated as has been rightly held by the High Court.......................... In the premises aforesaid, we do not find any merit in this appeal which is accordingly dismissed without costs. The judgment and decree of the High Court in S.A. No.22 of 1981 is confirmed." 12. When the judgment was rendered, at that time rule 20 of the BSF Rules was not available as same has been incorporated in the year 1998 but despite that it has been held in the given facts and circumstances of the said case that the principles of natural justice are not violated because in the reported case notice proposing dismissal from service was served upon the petitioner therein who had not responded to the same. 13. The position of incorporation of Rule 20 of BSF Rules assumes significance and non-adherence thereto amounts to infringement of the right to explain the cause for over stayel. In addition even in absence of said Rule, compliance to the principles of natural justice has to be adhered to which, in the instant case has not been done. 14. 13. The position of incorporation of Rule 20 of BSF Rules assumes significance and non-adherence thereto amounts to infringement of the right to explain the cause for over stayel. In addition even in absence of said Rule, compliance to the principles of natural justice has to be adhered to which, in the instant case has not been done. 14. For the stated reasons and the law as referred, the order of dismissal impugned is unsustainable as being illegal, therefore, is quashed, it shall be open for the respondents, if they so choose, to initiate proceedings strictly in accordance with the Act and the rules made there-under and then to pass appropriate orders as shall be warranted under law, otherwise the petitioner shall be admitted to service benefits as admissible under rules, however, the intervening period during which petitioner has not discharged any duty, petitioner shall be disentitled from getting salary for the said period but shall count for other service benefits. 15. Petition accordingly succeeds and is disposed of on aforesaid terms.