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2015 DIGILAW 94 (JK)

Union of India v. Yash Pal

2015-03-12

DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : N. Paul Vasantha Kumar; CJ.:- 1. This appeal has been filed against the order made in SWP No. 1579/2003 dated 05.03.2004 wherein the respondent has challenged the order of dismissal and prayed for reinstatement in service and release of salary and other benefits. The case of the respondent before the learned Single Judge was that he was recruited as Water Carrier in the Border Security Force in the year 1988. The respondent went on leave for seven days, which was granted vide order dated 18.04.2002 and he was to rejoin the duties after the expiry of the leave. However, due to his illness he was able to resume his duties on 19.05.2002 in 73 Bn BSF and the appellants did not allow the respondent to rejoin the duty and a charge-sheet was issued on 07.09.2002 calling upon the respondent to show cause for overstaying the leave granted to him. The respondent was kept in close arrest vide order dated 12.09.2002 till finalization of the Summary Security Force Court (SSFC). The trial was conducted and the respondent was awarded sentence, "to be dismissed from service" on the same day i.e. 12.09.2002. An appeal was preferred before the Deputy Inspector General, Border Security Force on 05.12.2002 in terms of Rule 167 of the BSF Rules, 1969 which was dismissed vide order dated 09.04.2003. Since the appeal was also rejected the respondent filed writ petition before this Court challenging order dated 09.04.2003 and the learned Single Judge considering the reasons pleaded by the petitioner-respondent that due to illness the respondent was unable to report back for duty gave the finding that the punishment imposed dismissing the respondent from service was disproportionate and remanded the matter for imposing a lesser punishment than dismissal from service. Having aggrieved of the said order, the instant appeal has been filed. 2. In the memorandum of appeal filed by the respondent before the appellate authority, it was stated that due to illness he could not report for duty on the expiry of the leave and therefore he has overstayed the leave. It was also stated in the appeal memorandum that he was not given an opportunity to produce the medical documents. Even though such pleas were made in the appeal memorandum, order of the appellate authority nowhere reflects consideration of such grounds raised but simply rejected the appeal stating that the appeal is devoid of merits. It was also stated in the appeal memorandum that he was not given an opportunity to produce the medical documents. Even though such pleas were made in the appeal memorandum, order of the appellate authority nowhere reflects consideration of such grounds raised but simply rejected the appeal stating that the appeal is devoid of merits. 3. The statutory provisions contained in Section 117 of the Border Security Force Act, 1968 clearly mandates the appellate authority to satisfy itself to the correctness, legality or propriety of the order passed or as to the regularity of any proceedings to which the order relates but the appellate authority without considering such facts, simply rejected the appeal. 4. In the appeal, memorandum the respondent has prayed for showing leniency in imposing punishment but such fact was also not considered by the appellate authority. 5. Hon'ble the Supreme Court while considering the similar issue in the decision reported in 1986 (2) SCC 651 (R.P. Bhatt v. Union of India and others) held that once statutory appeal is filed under Rule 27(2) of Central Civil Services (Classification, Control and Appeal) Rules, 1965 which is in pari materia with Section 117 of BSF Act 1968; the appellate authority is required to consider all aspects including proportionality of the punishment imposed. The said decision is followed in 2006 (4) SCC 713 . The Supreme Court in the decision reported in 2015 (1) SCC L & S 251 (Chhel Singh v. M.G.B. Gramin Bank, Pali) held that if the absence is not willful the extreme penalty of dismissal of a person from service shall not be imposed. 6. Applying the said judgments to the facts of this case, judgment of the learned Singh is Judge is modified and the order passed by the appellate authority is set aside. The appellate authority is directed to consider the appeal afresh on merits as per the statutory provision and also bear in mind the plea made by the respondent that due to illness he could not report for duty. The appellate authority is directed to pass fresh orders on the appeal of the writ petitioner-respondent by considering the above aspects within a period of eight weeks from the date of receipt of copy of this order. 7. This appeal along with connected application is disposed of in the above terms.