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2014 DIGILAW 84 (MEG)

Aditya Pratap v. Union of India

2014-05-01

T.NANDAKUMAR SINGH

body2014
Judgment T. Nandakumar Singh, J. 1. Heard Mr. A.S. Siddiqui, learned counsel for the petitioner and Mr. R. Deb Nath, learned CGC appearing for the respondents. The petitioner had been dismissed from service by the impugned order dated 10.04.2012 for the unauthorized absence and also for recovering the cost of deficient kit/clothing items to the tune of Rs. 3,493.77 say Rs. 3,494/- (Rupees three thousand four hundred ninety four) only and Rs. 2,302/- on account of railway warrant be recovered from the amounts due to him and be deposited into Govt. Treasury and also I.D. card etc. For easy reference, the impugned order dated 10.04.2012 (Annexure-VII to the writ petition) is quoted hereunder:-- "No. 35Bn Estt.-Disc/A WL-A-P/2012 4522-44 Dated: 10 April, 2012 ORDER ORDER BY SHRI. ARVIND GHTLDIYAL, 2IC/OFFG, COMDT 35 BN BSF IN THE AWL CASE NO. 082545989 CONSTABLE ADITYAPRATAP I have examined the matter relating to the illegal absence without leave by No. 082545989 Constable Aditya Pratap of 35 Bn BSF. 2. As mandated vide Sub Rule (2) of Rule 22 of the BSF Rules, No. 082545989 Constable Aditya Pratap was given an opportunity to show cause vide 35 Bn BSF notice No. Estt/Disc/35 Bn/2011/18312-14 dated 12 Dec' 2011 (By Registered Post) against his proposed dismissal from the service. No. 082545989 Constable Aditya Pratap however, has failed to submit any reply to the said show-cause notice till date. 3. Considering the matter in its entirety, I am satisfied that No. 082545989 Constable Aditya Pratap has been illegally absenting without leave since 05/08/2011 (AN), I am also satisfied that his aforesaid continued illegal absence is contrary to the expected norms and is detrimental to the Force discipline, which makes his further retention in the Force as undesirable. 4. I therefore direct that No. 082545989 Constable Aditya Pratap be dismissed from the service with effect from 10 April' 2012 (AN). 5. The unauthorized absence period with effect from 05/08/2011 to 10/4/2012 be treated as "Dies-non". 6. The cost of deficient kit/clothing items to the tune of Rs. 3,493.77 say Rs. 3,494/- (Rupees three thousand four hundred ninety four) only and Rs. 2,302/- on account of railway warrant be recovered from the amounts due to him and be deposited into Government Treasury. Identity Card bearing No. 420004 issued to individual should also be recovered from the individual through local police authority and disposed off as per instructions. 7. 3,493.77 say Rs. 3,494/- (Rupees three thousand four hundred ninety four) only and Rs. 2,302/- on account of railway warrant be recovered from the amounts due to him and be deposited into Government Treasury. Identity Card bearing No. 420004 issued to individual should also be recovered from the individual through local police authority and disposed off as per instructions. 7. Individual is struck off strength of this unit with effect from 10 April, 2012 (AN). Sd/- (Arvind Ghildiyal) Offg Commandant 35 Bn BSF Distribution:-- 5. All Branches/Coys. 6. Roznamcha. 7. BRO-II (in duplicate) 8 File." 2. On hearing the submission of Mr. A.S. Siddiqui, learned counsel for the petitioner at length and also on perusal of the writ petition, it is clear that the only ground for assailing the impugned order dated 10.04.2012 is that the petitioner, even if absent without leave, the authority has no alternative but to take action under Section 19 of the Border Security Force Act, 1968 (for short 'the said Act of 1968') and Section 19 of the said Act of 1968, does not prescribe the removal or dismissal from service. Therefore, it is the case of the petitioner that he cannot be dismissed from service for the unauthorized absence and Section 19 of the said Act of 1968 provides only punishment mentioned therein. Section 19 of the said Act of 1968 reads as follows:-- "19. Therefore, it is the case of the petitioner that he cannot be dismissed from service for the unauthorized absence and Section 19 of the said Act of 1968 provides only punishment mentioned therein. Section 19 of the said Act of 1968 reads as follows:-- "19. 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) being on 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 (d) without sufficient cause fails to appear at the time fixed at the parade or place appointed for exercise or duty; or (e) when on parade, or on the line of march, without sufficient cause, or without leave from his superior officer, quits the parade or line of march; or (f) when in camp or elsewhere, is found beyond any limits fixed, or in any place prohibited, by any general, local or other order, without a pass or written leave from his superior officer; or (g) without leave from his superior officer or without due cause, absents himself from any school when duly ordered to attend there, 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." (Emphasis supplied) 3. On a plain perusal of Section 19 of the said Act of 1968, it is crystal clear that it is a penal provision for the unauthorized absence of the Border Security Force personnel. It is fairly well settled law in the service jurisprudence that an unauthorized or illegal absence of an employee may have two consequences viz. penal provision and another for removal of service. A paradigm case, a member of the Meghalaya Civil Service in the case of misappropriation of funds, he can be dismissed from service and also action can be taken up for the offence under the Penal Code by registering a criminal case. penal provision and another for removal of service. A paradigm case, a member of the Meghalaya Civil Service in the case of misappropriation of funds, he can be dismissed from service and also action can be taken up for the offence under the Penal Code by registering a criminal case. Therefore, in criminal case for the penal offence for misappropriation of funds, he can be convicted for the penal offence and at the same time, he can be removed from service after holding a Departmental Enquiry. Therefore, the Departmental Enquiry and criminal proceeding are two different proceedings for the different objects. In the present case, for an unauthorized absence of the petitioner, the authorities can dismiss the petitioner from service under Section 11 of the said Act of 1968 and also he can be convicted or sentenced for the penal provision under Section 19 of the said Act of 1968 by the Security Force Court. Therefore, it appears that the petitioner misunderstood the two separate proceedings one under Section 11 and another under Section 19 of the said Act of 1968. Regarding this point, we may refer to the decision of the Apex Court in Sri. Gouranga Chakraborty v. State of Tripura & Anr., AIR 1989 SC 1321 that the power of dismissal from service of prescribed authority under Section 11(2) is independent. It does not depend upon award of punishment by Security Force Court. Paras 12, 13, 14, 23 & 24 of the AIR in Sri. Gouranga Chakraborty's case (supra) read as follows:-- "12. Section 11 which is very relevant for the decision of the instant case is quoted herein below:-- "(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 subsection (2) may reduce to a lower grade or rank or the ranks any person under his command except an officer or a subordinate officer. (3) Any such officer as is mentioned in subsection (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 the rules." 13. Chapter III specifies the offences under the BSF Act, Section 19 of the said Chapter states that:-- "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) being on 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 ............................. ............................. etc. etc. 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." 14. All the offences incorporated in Chapter III are convictable by the Security Force Court. 23. It has, however, been urged on behalf of the State that the power conferred on the Commandant as Prescribed Authority under Section 11(2) to dismiss any person under his command from the service read with Rule 177 of the said Rules is an independent power as held by the High Court and as such the impugned order of dismissal from service of the appellant passed by the respondent is not at all arbitrary or illegal. 24. We have scrutinized the relevant provisions of the BSF Act as well as the BSF Rules framed thereunder and we have no hesitation to hold that the power under Section 11(2) of the Act empowering the Prescribed Authority. 24. We have scrutinized the relevant provisions of the BSF Act as well as the BSF Rules framed thereunder and we have no hesitation to hold that the power under Section 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 provision of sub-section (4) of Section 11 which enjoins that the exercise of the power under the aforesaid Section shall be subject to the provisions of the Act and the Rules does not signify that the power to dismiss a person from service by the Commandant for his absence from duty without leave without any reasonable cause or for overstaying leave without sufficient cause and holding him as undesirable cannot be exercised unless the Security Force Court has awarded punishment to that person in accordance with the procedure prescribed by law. The Prescribed Authority i.e. the Commandant is competent to exercise the power under Section 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. 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. 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. No other point has been urged before us by the learned counsel appearing on behalf of the appellant." For the foregoing discussions, this Court is of the considered view that there is no merit in the present writ petition and accordingly dismissed.