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2015 DIGILAW 437 (JK)

Union of India v. Satya Pal Singh

2015-08-25

B.S.WALIA, MUZAFFAR HUSSAIN ATTAR

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JUDGMENT : Muzaffar Hussain Attar (Oral): Respondent-writ petitioner challenged his termination from service by filing SWP No. 1975/1998, which was allowed by the learned writ Court vide judgment dated 31.05.2001. In terms of the impugned judgment, the order of termination has been quashed and respondents were given liberty to hold fresh enquiry. Learned counsel for the appellant while referring to show cause notice issued in terms of Rule 22 of the Border Security Force Rules, 1969 (for short 'Rules of 1969') submitted that there is compliance with the said rule in issuing show cause notice. Rule 22 of the Rules of 1969 is taken note of: “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, its disclosure si not in the public interest. (3) The competent authority after considering his explanation and defence if any may dismissed 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. (3) The competent authority after considering his explanation and defence if any may dismissed 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.' Rule 22(2) provides that 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 and further that his retention in the service is undesirable, the delinquent official is to be informed about the same and is also to be informed about all the reports adverse to him. He is to be asked to submit in writing, his explanation and defence. Admittedly, the show cause notice is not issued in accordance with Rule 22 of Rules 1969 and the competent authority has not recorded his satisfaction that the trial of the respondent is inexpedient or impracticable. Even the copies of adverse reports were not provided to respondent. The procedure prescribed in terms of Rule 22 of Rules 1969 is mandatory in nature and its non-compliance adversely affects the service rights of the official rendering the impugned action illegal. Even otherwise, the competent authority being creature of statute is under statutory obligation to follow the mandate of law. There being complete breach of Rule 22 of Rules of 1969, the writ petition was bound to succeed. More particularly, in the facts of this case, it is admitted by the appellants that enquiry in terms of section 62 of the Border Security Force Act, 1968 was conducted. The competent authority was, thus, under statutory obligation to supply the material to the respondent. Admittedly, the same has not been done. For the reasons stated above, we find no merit in this appeal which is accordingly dismissed.