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2015 DIGILAW 404 (JK)

Union of India v. Virpal Singh

2015-08-12

B.S.WALIA, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : B.S. Walia, J. 1. Letters Patent Appeal has been filed against judgement dated 13.07.2001 passed by the Ld. Single Judge in SWP No. 439/1999 whereby the order passed by the appellant dismissing the respondent from service was set aside and the respondent reinstated while leaving the appellant free to pass a fresh order in accordance with law. We have heard Mr. Varinder Kumar, Deputy Commandant, Border Security Force, who has assailed the judgement passed by the Ld. Single Judge inter alia on the ground that the respondent had failed to avail of an efficacious alternative remedy under Rule 28 of The Border Security Force Rules, 1969 (hereinafter referred to as the Rules) therefore was not entitled to any relief under Article 226 of the Constitution of India, that there was no procedural irregularity in the disciplinary proceedings conducted against the respondent and the finding with regard to non-compliance with Rule 20 to 22 was wholly misplaced as the issuance of show cause notice and the Inquiry held against the respondent had provided sufficient opportunity of hearing to the respondent, that the Court of Inquiry held u/s 62 of The Border Security Force Act, 1968 (hereinafter referred to as the Act) beside other material before the Commandant was sufficient for the Commandant to arrive at the conclusion that the trial of the respondent was inexpedient, that the Ld. Single Judge had ignored settled law that it was not open to the court to re-appreciate the reasons for holding of trial of an employee to be inexpedient, that the Ld. Single Judge had failed to take into account that overstay of leave by a member of a disciplined force constituted a very serious offence and could not be permitted to the detriment of discipline in a force like the BSF, that the conclusions by the Ld. Single Judge were based purely on conjectures and surmises, therefore the judgement was not sustainable. 2. A perusal of the impugned judgement reveals that the respondent received notice Annexure C-3 on 01.08.1998 calling upon him to show cause as to why he should not be dismissed from service as he had remained absent without leave w.e.f. 21.05.1998. Contents thereof are being reproduced since the same are relevant for the adjudication of the present appeal: "You have been absenting without leave with effect from 21.5.98 (FN). Contents thereof are being reproduced since the same are relevant for the adjudication of the present appeal: "You have been absenting without leave with effect from 21.5.98 (FN). After considering the reports relating to your absence, I am satisfied that your trial by a Security Force Court is impracticable but am of the opinion that your further attention in service is undesirable. I, therefore, tentatively proposed to dismiss you from service. If you have anything to urge in your defence against the imposition of the proposed penalty, you may do so before 27 August 98. In case no reply is received within the stipulated period it would be presumed that you have no defence to put forward an ex parte decision will be taken into the matter." 3. The show cause notice was issued in exercise of power under Rule 22(2) of the Rules. Pursuant thereto, order Annexure A. 1 dated 20.08.1998 was passed by the Commandant, 35 Bn, BSF dismissing the respondent from service w.e.f. 28.8.98 (FN) under Rule 177 and treating the OSL period w.e.f. 21.3.98 to 27.3.19 (FN) and absence period w.e.f. 21.05.98 to 27.08.98 as "Dies--Non" etc. 4. The Ld. Single Judge after taking into account the decision of a Division Bench of the Calcutta High Court in case titled as The Commandant, 70 Battalion, Border Security Force and others v. Anil Bandhu Mitra, besides Rule 22 came to the conclusion that nothing had been brought on record to show as to why it was not possible to hold a Security Force Court or why the elaborate procedure stipulated under Rule 22 had been dispensed with. 5. The Ld. Single Judge relied upon the decision of the Hon'ble Supreme Court in Jaswant Singh v. State of Punjab and others, AIR 1991 SC 385 wherein it was held that there should be sufficient material in existence before power could be invoked under Article 311(2) to arrive at the conclusion that it was not practicable to hold a departmental enquiry and that the decision to dispense with an Inquiry could not be rested solely on the ipse dixit of the concerned authority. The Ld. The Ld. Single Judge also took note of the judgment of a Division Bench of this Court in case reported as State of J & K v. Kehar Singh 2000 KLJ 311 : JKJ Soft JKJ/22335 wherein it was observed that the material on the basis of which the conclusion to dispense with the enquiry has to be arrived at is to be independent of the charges, that there must exist a situation which renders holding of enquiry not reasonably practicable. In the light of the above, the Ld. Single Judge held that record did not reveal as to why it was not expedient or reasonably practicable to afford the respondent/petitioner an opportunity to show cause. In view thereof, the order dismissing the respondent/petitioner from service was set aside and the respondent/petitioner reinstated while leaving the appellant/respondent free to pass a fresh order in accordance with law. 6. The plea that the respondent failed to avail of an equally efficacious alternative remedy under Rule 28 of the Rules, therefore was not entitled to any relief under Article 226 of the Constitution of India is of no avail to the appellants. No doubt alternative remedy is provided under Rule 28. However, the plea that in view thereof the writ petition should not be entertained is merely a rule of caution and in cases such as the instant one where violation of Rule 22 is writ large, the plea is noticed to be rejected. Reference in this connection is made to the decision of the Hon'ble Supreme Court in Satwati Deswal v. State of Haryana, (2010) 1 SCC 126 5. In our view, the High Court had fallen in grave error in rejecting the writ petition on the aforesaid ground. First, such an order of termination was passed without issuing any show-cause notice to the appellant and without initiating any disciplinary proceedings by the authorities and without affording any opportunity of hearing. It is well settled that a writ petition can be held to be maintainable even if an alternative remedy is available to an aggrieved party where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right; or if there had been a violation of a principle of natural justice; or where vires of the Act were in question 6. The aforesaid exceptions recognised by this Court were taken note of by this Court in Collector of Customs v. Ramchand Sobhraj Wadhwanil in which the Constitution Bench laid down the principles of the above exceptions when writ application could be entertained even if an alternative remedy was available to an aggrieved party. The same view was expressed by this Court in L.K. Verma v. HMT Ltd. and M.P. State Agro Industries Development Corpn. Ltd. v. Jahan Khan. 7. The plea that there was no procedural irregularity in the disciplinary proceedings conducted against the respondent and the finding with regard to non-compliance with Rule 20 to 22 was wholly misplaced is contrary to the record as also procedure prescribed under Rule 22 of the Rules. 8. Rule 22 of The Border Security Force Rules 1969 which is relevant for the adjudication of the controversy involved in the instant appeal is reproduced below:-- "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-- (a) where the service is terminated on the ground of conduct which has led to his conviction by a criminal court or a 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 in 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, it's disclosure is not in the public interest. (3) The competent authority after considering his explanation and defences 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 of and above the rank of a Subedar. (4) All cases of dismissal or removal under this rule, shall be reported to the Director-General.) 9. Thus, Rule 22 lays down that if on considering the reports of misconduct of the delinquent, the competent authority is satisfied that the trial of the delinquent is either inexpedient or impracticable, but that the retention of such person in service is undesirable, then in the circumstances, the competent authority is required to inform the delinquent of the said decision together with all reports adverse to him and requiring him to submit, in writing, his explanation and defence. However, the competent authority is not required to disclose and may withhold from disclosure any such report or portion thereof, if, in the opinion of the competent authority, the disclosure of such report etc is not in public interest. It is only thereafter that the competent authority after considering the explanation if any of the delinquent may dismiss or remove the delinquent from service with or without pension. 10. In the instant case although decision to dispense with the trial was taken besides forming the opinion that the delinquents further retention in service was undesirable and show cause notice was given and his explanation called for, however no material has been shown for arriving at the satisfaction that it was not expedient to subject the respondent to trial nor were the reports adverse to the delinquent neither the findings of the inquiry under Section 62 of the Act supplied to the respondent. 11. The mere fact that enquiry under section 62 was conducted or show cause notice under Rule 22(2) was given will not suffice once the procedure stipulated under Rule 22 stood violated. In the circumstances, the challenge to the judgment of the Learned Single Judge has to fail. 12. 11. The mere fact that enquiry under section 62 was conducted or show cause notice under Rule 22(2) was given will not suffice once the procedure stipulated under Rule 22 stood violated. In the circumstances, the challenge to the judgment of the Learned Single Judge has to fail. 12. The plea that the Court of Inquiry held u/s 62 of the Act beside other material was sufficient for the Commandant to arrive at the conclusion that trial of the delinquent was inexpedient is without any legal basis for Rule 22 stipulates that in the eventuality of a conclusion being arrived at that holding of a trial is inexpedient and further that the retention of such person in service is undesirable, the competent authority is required to inform the delinquent of the said decision together with all reports adverse to him and to give him an opportunity to give his explanation in writing. Although the Court of inquiry was held and decision taken that it was not expedient to conduct a trial and his explanation was called for as to why he should not be removed from service, yet no material has been shown for arriving at the said conclusion nor were the adverse reports available with the Commandant supplied to the delinquent. In the circumstances the mere fact that decision was taken that holding of trial was inexpedient is of no avail. Thus the decision to remove the respondent from service was vitiated. 13. Likewise the plea that the Ld. Single Judge had ignored settled law that it was not open to the court to re-appreciate the reasons for holding of trial of an employee to be inexpedient is also without merit in view of the fact that no reason has been spelt out nor shown on record for holding the trial of the respondent to be inexpedient. Besides, the impugned order of dismissal was set aside inter alia on account of violation of the procedure laid down under Rule 22 and not merely on account of non holding of trial. Thus the aforementioned plea is also of no avail. 14. The plea that the Ld. Besides, the impugned order of dismissal was set aside inter alia on account of violation of the procedure laid down under Rule 22 and not merely on account of non holding of trial. Thus the aforementioned plea is also of no avail. 14. The plea that the Ld. Single Judge had failed to take into account that overstay of leave by a member of a disciplined force constituted a very serious offence and could not be permitted to the detriment of discipline in a force like the BSF does not imply that the procedure prescribed under the rules could be violated. The appellants were at liberty to take action against the respondent in accordance with law and had in fact also been granted liberty by the Ld. Single Judge to pass a fresh order. However, they have chosen not to do so. Lastly, in view of the discussion aforesaid, the plea that the conclusions by the Ld. Single Judge were based purely on conjectures and surmises is without any basis. In the light of what has been noticed above, we find no reason (sic) differ with the conclusion recorded by the learned Single Judge, therefore dismiss the instant Letters Patent Appeal.