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2012 DIGILAW 329 (JK)

Sandeep Singh v. Union of India & Ors.

2012-06-08

HASNAIN MASSODI

body2012
1. Petitioner enrolled in Border Security Force (for short BSF) as Constable in April, 1986, and promoted as Head Constable vide order No. Estt/SS/DISM/04/186-380 dated 03.01.2003, was dismissed from service on 03.01.2004 on the charge of his unauthorised absence from duty for 39 days with effect from 02.10.2003 to 09.11.2003. 2. The dismissal order dated 03.01.2004 is questioned in the writ petition on hand, on the grounds that the petitioner because of untimely death of his elder brother on 20th April, 2003 was urgently required at his home in connection with finalization of family matters like obtaining succession certificates in respect of debts and liabilities of the deceased and finalization of Bank/LIC Accounts etc.; that though the respondents did not formally accord sanction to 30 days leave in his favour for which he duly applied, yet the respondents orally permitted the petitioner to proceed to his home and get the family matters completed. It is pleaded that the petitioner, after he was granted verbal permission by the respondents, left for his home on 2nd October, 2003, and joined back his Unit on 9th November, 2003. The petitioner complains that the Deputy Inspector General, BSF - respondent no. 4 in the petition, without holding any enquiry as contemplated by BSF Act and the Rules made thereunder and without affording the petitioner an opportunity of being heard, dismissed the petitioner from service. The impugned dismissal order is assailed on the ground that it has been made without following the procedure laid down under the BSF Act and Rules. 3. The respondents oppose the writ petition on the grounds that the impugned dismissal order does not suffer from any procedural irregularity as would warrant its judicial review in terms of Article 226 of the Constitution of India. The petition is also opposed on the ground that the petitioner has not availed the efficacious remedy available to him under Section 117 of the BSF Act of 1968. It is pleaded that after the petitioner absented from duly on 2nd October, 2003, a letter bearing no. Estt/CI OPS-I/526/03/8767-68 dated 9th October, 2003, was sent to his home address asking him to immediately report to duty and that in the event, he did not report, disciplinary action would be initiated against him. It is pleaded that after the petitioner absented from duly on 2nd October, 2003, a letter bearing no. Estt/CI OPS-I/526/03/8767-68 dated 9th October, 2003, was sent to his home address asking him to immediately report to duty and that in the event, he did not report, disciplinary action would be initiated against him. The aforesaid communication is reported to have been followed by Communication No.HQL/No. Estt/526/03/9787 dated 10th November,2003, after the petitioner joined his duty on 9th November, 2003, whereby an explanation was sought from the petitioner as regards his unauthorised absence. It is admitted that the petitioner in reply to the aforesaid show cause notice, stated that he was compelled to absent from duty as he had to meet his relatives after his brother's death and he also had to get the matters related to his brother's death settled in the Court; that the explanation tendered was not found satisfactory by the respondents, and the petitioner was attached with 42 Bn BSF vide No. Estt/SHQ CI OPS-I/03/9798-800 dated 10th November, 2003.The Commandant 42 Bn BSF is said to have heard the petitioner under Rule 45 of BSF Rules 1969 on 15th November, 2003 on the charge of "Absenting Himself Without Leave" under Section 19(a) of BSF Act of 1968; that after hearing the charge, the Record of Evidence (ROE) was ordered vide No. Estt/42 Bn/BSF/ROE-SS/2003/5903-07and Shri Jai Ram Singh, Deputy Commandant 42 Bn BSF recorded the evidence/prepared the Record of Evidence (ROE); that the Commandant after going through the Record of Evidence (ROE) under rule 51 of the BSF Rules, 1969, decided for trial of the petitioner by the Summary Security Force Court (SSFC) on 3rd January, 2004, and that after due appreciation of the evidence adduced against the petitioner during trial, the Court found him guilty of the charge and sentenced him "To Be Dismissed From Service" and promulgated the sentence on 03.01.2004 itself. The respondents also question jurisdiction of the Court to deal with and proceed with the matter and further insist that the petitioner a habitual offender and was awarded "Severe Reprimand" more than once till he was finally shown the door vide dismissal order impugned in the petition. The respondents also question jurisdiction of the Court to deal with and proceed with the matter and further insist that the petitioner a habitual offender and was awarded "Severe Reprimand" more than once till he was finally shown the door vide dismissal order impugned in the petition. It is stated that the petitioner earlier in April, 2003 over stayed the leave on the same ground and the respondents took a lenient view, taking note of death of petitioner's brother and the period of absence was regularized by granting leave of whatever kind due to the petitioner. It is next pleaded that the Commandant 42 Bn BSF was in terms of BSF Act and Rules competent to try the petitioner and award sentence. The respondents refute the petitioner's claim that Court of Inquiry (COI) was mandatory before the petitioner was ordered to be tried by Summary Security Force Court (SSFC), inasmuch as, the disciplinary action was initiated after the petitioner reported back to the duty. It is further pleaded that before the petitioner was directed to be tried by Summary Security Force Court (SSFC), copies of Record of Evidence (ROE) and charge-sheet framed were handed over to petitioner vide No.THQ/42 Bn/SSFC-SS/04/01 dated 01.01.2004 and the petitioner informed well in time about the day, date and venue of Summary Security Force Court (SSFC) trial. Insisting that petitioner was given an opportunity of being heard at each and every stage, respondents deny that BSF Rule 49 was attracted in the present case. The respondents insist that the matter did not suffer from procedural irregularity and that BSF Rule 21-22 like Rule 49 had no application in this case were not to be adhered to. The respondents, to show that the petitioner was given a fair deal, point out that an Officer nominated by the petitioner was appointed vide letter No.THQ/42 Bn/SSFC-SS/04/01 dated 01.01.2004 as friend of the accused before SSFC, that plea of not guilty was duly recorded and that petitioner did not have service of lawyer available because as he did not opt for such service and not because the respondents were disinclined to provide the petitioner such facility to defend himself before the SSFC. The respondents also deny that in terms of Rules, a notice was required to be issued to the petitioner before awarding punishment and the petitioner to be afforded an opportunity to show cause against the proposed punishment. The respondents also deny that in terms of Rules, a notice was required to be issued to the petitioner before awarding punishment and the petitioner to be afforded an opportunity to show cause against the proposed punishment. It is pointed out that as the petitioner was convicted by Summary Security Force Court (SSFC), and dismissed from service awarded as punishment by the SSFC, notice was not required to be served on a delinquent official to show cause against the proposed punishment, was not required to be served upon petitioner. 4. The respondents refuting the averments made in para-21 of the writ petition that the petitioner has got no other efficacious remedy except invoking writ jurisdiction of the Court, on the ground that in terms of Section 117 of BSF Act, 1968, the petitioner has a right to present a petition to the officer or authority empowered to confirm any finding or sentence recorded by the SSFC and thereafter petition to the Central Government, the Director General or other prescribed Authority superior in command to the one who confirmed the finding or sentence, recorded by the SSFC. The petitioner having not availed the remedy available under Section 117 of BSF Act, 1968, it is contended that the writ petition was not maintainable and liable to be dismissed on that ground alone. 5. I have gone through the pleadings as also the SSFC record made available by learned Central Government Standing Counsel. I have heard learned counsel for the parties. 6. It is to be pointed out at the outset that the case against the petitioner was not one of over staying on leave. The petitioner admittedly had not been granted leave of whatever kind due to him. The petitioner absconded while posted at SHQ-CI OPS Rawalpora, Srinagar, without permission and without any leave granted in his favour and reported back 39 days thereafter on 9th November, 2003. The petitioner, in the circumstances, on his reporting to SHQ-CI OPS Rawalpora, Srinagar, was attached with 42 Bn BSF for disciplinary proceedings. The petitioner was found to have allegedly committed offence punishable under Section 19 (a) of BSF Act, 1968, triable by the SSFC. The offence alleged to have been committed by the petitioner carry imprisonment for a term of three years or such less punishment mentioned in the Act. With this in mind, let us examine and deal with the petitioner's case. The offence alleged to have been committed by the petitioner carry imprisonment for a term of three years or such less punishment mentioned in the Act. With this in mind, let us examine and deal with the petitioner's case. 7. The petitioner's case as we know by now is that he was dismissed from service without having been afforded an opportunity by the respondents to project his case; that he was tried by Summary Security Force Court (SSFC) which had no jurisdiction to try the case; that the competent Authority failed to convene a Court of enquiry before the petitioner was send for trial and that the petitioner was not served a show cause notice and afforded an opportunity to show cause against the proposed punishments. The petitioner's case that he was not afforded an opportunity of being heard and the principles of natural justice violated by the respondents while passing the impugned order, is without substance. The petitioner, as is evident from the record made available by learned Central Government Standing Counsel (CGSC), was given sufficient opportunity to explain his stand when he reported to his unit after desertion and remaining absent from duty for 39 days. Thereafter, evidence was recorded in petitioner's presence and petitioner provided opportunity to cross examine the witnesses who stepped into the witness box and when the trial commenced, the petitioner was again given an opportunity by the Summary Security Force Court (SSFC) to plead "guilty" or "not guilty" duly granted. The petitioner, thus, cannot be heard saying that the proceedings were conducted at his back and he denied an opportunity of being heard. 8. Learned counsel for the petitioner has laid much emphasis on the peti tioner's attachment with 42 Bn BSF and his trial at Charar-e-Sharif, Srinagar. It is argued by the learned counsel for petitioner that the petitioner was to be tried at the same unit where he was posted, before the petitioner allegedly deserted the force. The ground urged is without any force. 9. In terms of Section 70 of the BSF Act, 1968, a Summary Security Force Court may be held by the Commandant of any unit of the Force. The ground urged is without any force. 9. In terms of Section 70 of the BSF Act, 1968, a Summary Security Force Court may be held by the Commandant of any unit of the Force. There was, therefore, no impediment in the way of the convening officer - Deputy Inspector General of Police, BSF in the present case, in convening a Summary Security Force Court at 42 Bn BSF, head quarter at Charar-e-Sharif, Srinagar. It is pertinent to point out that a Summary Security Force Court in terms of Section 74(3) of the BSF Act, 1968, is competent to try any person subject to the Act and under the command of the officer holding the Court and once the petitioner was attached with the 42 Bn BSF, he was under command of the commanding of the Battalion who constituted the Court. The record made available reveals that the accused was tried strictly in accordance with the procedure laid down to govern the proceedings before a Summary Security Force Court. Shri Narendera Singh, Commandant 42 Bn BSF constituted the Court and Sarva Shri Achala Ram, AC, 42 Bn BSF attended the trial. Shri C.K. Upadhay, DC 42 Bn BSF acted as friend of the petitioner. The petitioner pleaded "not guilty" which was duly recorded. The evidence was recorded in presence of the petitioner in accordance with Rule 90 of BSF Rules, 1969. The petitioner declined to make any statement in his defence and the Presiding Officer found the petitioner to be "guilty" of the charge. Before the Competent Authority decided to try the petitioner before SSFC, the record of evidence was directed in terms of rule 48 of the BSF Rules, 1969 and the record forwarded in accordance with Rule 48(8) of the Rules, 1969. Proceedings before the SSFC in the circumstances do not suffer from any infirmity, as would render the proceedings and the finding recorded illegal or violative or against the rules. 10. The petitioner's case that the Deputy Inspector General of Police should have ordered the Court of Inquiry(COI) before the petitioner was sent for trial and that failure on part of the Deputy Inspector General of Police to order Court of Inquiry (COI), and initiate the proceedings against the petitioner is devoid of any substance. 10. The petitioner's case that the Deputy Inspector General of Police should have ordered the Court of Inquiry(COI) before the petitioner was sent for trial and that failure on part of the Deputy Inspector General of Police to order Court of Inquiry (COI), and initiate the proceedings against the petitioner is devoid of any substance. The Court of Inquiry (COI) was not required to be held in the present case as the proceedings against the petitioner started when the petitioner had reported back to the unit and was available for disciplinary proceedings. 11. The ground urged in the petition that as the petitioner was not afforded an opportunity to show case against the punishment proposed, the order of dismissal impugned in the petition was liable to be set aside also does not sound convincing. It needs to be pointed out that delinquent personnel of the Force may be proceeded against in terms of the BSF Act, 1968 and the Rules made thereunder on administrative side and dealt with accordingly or if the misconduct alleged constitutes offence under the Act, he may be tried by the Competent Security Force Court. In the event, the delinquent is dealt with on administrative side. He is to be served a notice requiring him to show cause against the proposed punishment. However, where the delinquent is tried by Security Force Court, the punishment is imposed after he is found "guilty" of the offence, in such a case notice requiring him to show cause against the proposed punishment is not required to be served. It may be pointed out that in terms of Section 74(4) of the BSF Act, 1968, the Summary Security Force Court may pass any sentence under the Act, except the sentence of death or of imprisonment for a term exceeding the limit specified in sub Section (5). Section 48 of the BSF Act, 1968 catalogues the punishment that may be inflicted in respect of offences committed by the persons subject to the BSF Act, 1968. In terms of Section 48(1)(c), dismissal from service is one of such punishments. The Security Force Court as laid down under Section 50 of the BSF Act, 1968, may award in addition to, or without any one other punishment, the punishment specified in Section 48(1)(c) that is dismissal from service. In terms of Section 48(1)(c), dismissal from service is one of such punishments. The Security Force Court as laid down under Section 50 of the BSF Act, 1968, may award in addition to, or without any one other punishment, the punishment specified in Section 48(1)(c) that is dismissal from service. In other words, Security Force Court may award the punishment of "dismissal from the service" in addition to or without awarding any other punishment. In the present case, the Summary Security Force Court has in terms of Section 74(4), awarded dismissal from service as punishment to the petitioner. 12. So viewed, the Court has acted within the powers available under the BSF Act, 1968 and cannot be faulted for not having issued notice to the petitioner for requiring him to show cause against the dismissal, for the simple reason that dismissal from service was not a disciplinary action contemplated against the petitioner but the punishment awarded by the Summary Security Force Court. 13. For the reasons discussed above, the writ petition is without any merit and is, accordingly, dismissed. The Summary Security Force Court record be returned to Mr. Rajnish Raina, learned Central Government Standing Counsel, in accordance with rules.