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2016 DIGILAW 316 (JK)

Muneer Hussain v. Union of India

2016-06-06

B.S.WALIA, R.SUDHAKAR

body2016
JUDGMENT : 1. The instant Letters Patent Appeal is against the order of the single Judge declining to interfere with the order of dismissal of the appellant. The brief facts leading to the present case are as follows: "The appellant was serving as Constable in 44 Bn of Border Security Force. He proceeded on leave on 21.03.1994 to 19.05.1994. Thereafter on expiry of the leave period he was required to report on duty on 20.05.1994 but the appellant failed to report on duty. Therefore, he was declared absent from duty and by letter No. 031/Estt/Leave/44/94/1018 dated 08.06.1994 he was asked to resume the duty failing which disciplinary action was proposed. Same is marked as Annexure R-1 to the writ petition. Even after a lapse of considerable period of time, the appellant did not report back to the duty nor applied for extension of leave. He also did not responded to the communication marked R-1, therefore, respondent-authority ordered Court of Inquiry vide letter No. 001/Estt/Order/ 44/94/1330-31 dated 23.07.1994 under the provisions of Section 62(1) of the Border Security Force Act, 1968 (hereinafter referred to as 'the Act') which is annexed as R-2 to the writ petition. On the recommendation of Court of Inquiry a show-cause notice was issued to the appellant vide 44 Bn BSF letter No. Estt/Absent/44/94/7991 dated 17.08.1994. Copy of the proceedings has been placed today before this Court. In response to this show-cause notice, no response or reply was filed by the appellant nor did he report back to his duty and, therefore, by an order of Commandant vide order No. Estt/Dismiss/44/94/9489-9589 dated 13.09.1994 following order was passed: "OFFICE OF THE COMMANDANT 44 BN BSF DBN (GSP) PUNJAB ORDER: I have personally gone through the case of absence without leave in respect of No. 90755184 Constable Munir Hussain 'F' Coy of this Unit. He was given an opportunity to show-cause notice vide this office registered letter No. Estt/absent/44/94/7991 dated 17.8.94 which he has not availed. I am satisfied that he is absenting without leave w.e.f. 20.5.94 without any reasonable cause and that his further retention in the service is undesirable. I, therefore, dismiss him from service w.e.f. 13-9-94 (AN) under power conferred upon me vide Sec. 11(2) of BSF Act, 1968 read with Rule 177 of BSF Rule, 1969. 2. The absence period from 20.5.94 to 13.9.94 (AN) will be treated as 'DIES NON'. I, therefore, dismiss him from service w.e.f. 13-9-94 (AN) under power conferred upon me vide Sec. 11(2) of BSF Act, 1968 read with Rule 177 of BSF Rule, 1969. 2. The absence period from 20.5.94 to 13.9.94 (AN) will be treated as 'DIES NON'. He is struck off strength from this Unit w.e.f. 13.9.94 (AN). 3. A sum of 1908-45 (Rupees one thousand nine hundred eight only) being the deduction of clothing & Eqpts. be recovered out of his UD amount of his pay and allowances and deposited into Govt. Treasury. Sd/- xx (R.N. SHARMA) COMMANDANT 44 BN BSF." 2. Since the petitioner also filed writ petition (SWP) No. 885/1996 in the year 1996 where vide order dated 30.04.2001 direction to review the case of appellant was issued with further direction that the writ petition of the appellant-petitioner therein should be treated as appeal and should be disposed of on merits. 3. Appeal was taken up by Deputy Inspector General of SHQ BSF who passed order rejecting the appeal on merits on 27.08.2001. Thereafter appellant filed writ petition (SWP) No. 2489/2001 on 08.10.2011 challenging the appellate order as well as the order of termination. Respondents herein filed objections on 27.12.2001 to the writ petition referring to all various proceedings by which the petitioner-appellant herein was terminated. However, one document namely show-cause notice dated 17.08.1994 was not enclosed to which respondents referred to in their objections that has now been provided along with appeal. 4. Learned Single Judge took a view that the petitioner-appellant herein was detained under Public Safety Act. Detention Order was not challenged and he was released after a period after the detention period was over as he was involved in anti national activities and his continuance in Border Security Force would not be in good interests of the national security. Learned single Judge was of the following view: "In the decision reported in AIR 2015 SC 602 (State of M.P. & Ors. v. Parvez Khan), it is held that a candidate to be recommended to the police services or to be appointed on compassionate ground in police force must be worthy of confidence and must be a person of utmost rectitude and must have impeccable character and integrity. v. Parvez Khan), it is held that a candidate to be recommended to the police services or to be appointed on compassionate ground in police force must be worthy of confidence and must be a person of utmost rectitude and must have impeccable character and integrity. The person having criminal antecedents will not fit in this category even if he is acquitted or discharged, it cannot be presumed that he was completely exonerated and the persons who are likely to erode the credibility of the police ought not to enter the police force. The order passed by the High court giving compassionate appointment was set aside. Applying the said judgment to the facts of this case and the petitioner having been found involved in anti national activities and having been detained under the Jammu and Kashmir Public Safety Act, 1978 while serving in the Border Security Force, is not fit to continue in the force. There is no merit in the writ petition, which is dismissed. No costs." 5. Against this order the present appeal is filed. Learned counsel for the appellant seriously contended that the Single Judge has proceeded on a wrong premise that the dismissal was on account of involvement of appellant in Public Safety Act and has not addressed the primary issue raised by the appellant that the proceedings resulting in dismissal was not in accordance with the provisions of BSF Act and Rules. In this regard she would rely upon Section 62(1) and Rule 22(2) and the procedure under Rule 173. She pleads that the procedural; requirement before the Court of Inquiry proceedings to dismiss the person is that proper notice should be issued in terms of Rule 22 (2). She relied upon the decision of this Court rendered on 25.08.2015 in LPASW No. 140/2003 case titled Union of India v. Satya Pal Singh and on 30.05.2013 in LAPSW No. 158/2009 : 2013 Lab IC 3699 (J & K) in case titled Union of India & Ors. v. Babu Singh to support her contentions. 6. Another point raised by her is that the notice to which the respondents are referring to in their response was not served on the appellant. v. Babu Singh to support her contentions. 6. Another point raised by her is that the notice to which the respondents are referring to in their response was not served on the appellant. Respondents' counsel, on instructions states that the relevant documents have been filed as Annexures and show-cause notice dated 17.08.1994 has been also produced and copy has been furnished to appellant-petitioner but due to oversight they could not place it before the learned single Judge. Nevertheless, to say that it is case of willful absentia as after proper show-cause notice issued to him, the appellant has not responded. Since there was no response on behalf of appellant, the Department had no other option except to pass orders of dismissal based on the material available. In this case, it is pleaded that there is no adverse report except the leave of absence without just or proper reasons, i.e., the sole cause of proceedings under challenge i.e., 13.09.1994. 6A. We have considered the rival submissions. 7. The point in issue is no doubt that the learned single Judge went on the premise that the Detention Order would disentitled the appellant-petitioner to seek relief of setting aside the dismissal order because the controversy in issue was not addressed, i.e., to say the dismissal order under challenge was not touched by the learned single Judge, however, we find respondents have clearly pointed out in their objections filed to the first writ petition as well as to the second writ petition giving sufficient reasons as to why the order of dismissal came to be passed on the conduct of the appellant-writ petitioner. The issue is whether there is any breach of Section 62 Rule 22(2) and the procedure prescribed under 173(8) of the BSF Act. We find that in case of voluntary and deliberate absentia notice which is required to be issued to the person concerned was issued at the first instance on 08.06.1994. Respondent No. 1 asked him to resume duty to which appellant never responded. Thereafter a considerable period of time, Court of Inquiry was ordered on 23.07.1994-Annexure R-2 and thereafter show-cause notice was issued on 17.08.1994, therefore, the requirement of Rules 22 and 62 is complied with. 8. Respondent No. 1 asked him to resume duty to which appellant never responded. Thereafter a considerable period of time, Court of Inquiry was ordered on 23.07.1994-Annexure R-2 and thereafter show-cause notice was issued on 17.08.1994, therefore, the requirement of Rules 22 and 62 is complied with. 8. All that Rule 22 provides is that after considering the report of misconduct of the person concerned, the competent authority was satisfied that the trial of such a person is inexpedient or impracticable, but is of the opinion that the further retention in the service is undesirable, the person shall be informed with all reports adverse to him and shall be called upon to submit his explanation and defence. It is true that there are several material or report which would lead to decision for dismissal of a person or the adverse report should be enclosed but the instant case is one only case in which action has been proposed as leave without sanction for a prolong period of time after 19.05.1994. So, therefore, there is no other material except the absence of the appellant but appellant himself is aware of no other material... No other material is relied upon by the Department to proceed in terms of Section 62 and following the requirement of Rule has been followed by issuance of notice. It is one aspect of the matter that there is no proper service of these documents but there is another aspect that the respondents have produced the documents on file at the earliest point of time. They have also referred to the show-cause notice in their reply to the writ petition. They have not hidden any fact. The only issue that arises is whether the proper notice was issued and served on the petitioner. According to the Department, Receipt and Dispatch Registers are destroyed after a lapse of eight years as whole and, therefore, insofar as in this case also, they could not trace the Dispatch Register as the same go weeded out after the lapse of statutory period but for that period the relevant records of this file are produced before the Court at the earliest time. 9. Insofar as Section 173 is concerned, it is procedure of the Court of Inquiry in which Rule 8 mandates that before any order is passed by the Court of Inquiry, opportunity shall be given to rebut the charges. 9. Insofar as Section 173 is concerned, it is procedure of the Court of Inquiry in which Rule 8 mandates that before any order is passed by the Court of Inquiry, opportunity shall be given to rebut the charges. These procedures have been followed by the Department while issuing the show-cause notice dated 17.08.1994. 10. Since the core issue which raises the entire proceedings is the prolong absence of appellant for a long period of time without any sanction. The appellant being member of the Border Security Force is required to be responsible and also to intimate the Department for his absence or he should have reported thereafter. The plea taken by the appellant is that there was some Police inquiry and he remained with Intelligence for one month and thereafter he was in Police custody as on few occasions Police had detained him for inquiry and, therefore, he could not receive the show-cause notice. Same plea is not justified for the appellant to be absent for long period of time because the first proceeding was initiated while issuing letter on 08.06.1994 and thereafter on 23.07.1994 Court of Inquiry was ordered and show-cause notice was issued on 17.08.1994 and thereafter finally the order of dismissal came to be passed on 13.09.1994. There is no material to show that even after 19.05.1994 to 13.09.1994, i.e., for a period of four months, he was in custody of Police or any Detention Order was passed by the Police authority. Therefore, such a plea cannot be countenanced as just reason for him to plead that he could not respond or report to the Department or go through the file. 11. Decisions relied upon by the Senior counsel for the appellant no doubt makes the provision of mandate of law but in the instant case we find the issue involved is regarding the absence of appellant without any sanction of leave or any extension or intimation. Department has issued show-cause notice after a considerable period of time and the appellant is also having the knowledge of the same. He has been put on show-cause notice. There is no other report except the leave of absence without proper sanction. Therefore, nothing further survives to be done in terms of Section 22 of the Act. The said decisions relied upon by the appellant's counsel would not be applicable to the facts and circumstances of the instant case. He has been put on show-cause notice. There is no other report except the leave of absence without proper sanction. Therefore, nothing further survives to be done in terms of Section 22 of the Act. The said decisions relied upon by the appellant's counsel would not be applicable to the facts and circumstances of the instant case. 12. In view of the above, we find no reason to interfere with the order of the learned single Judge and there is no justification to hold that the dismissal order dated 13.09.1991 is bad on account of violation of the provisions of the Act. Hence, the order of dismissal is upheld, consequently, the order of learned Single Judge is confirmed. Appeal stands dismissed. No order as to costs. Appeal Dismissed.