Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 93 (CAL)

Sudhir Chandra Adhikary v. Union of India

2016-01-28

SANJIB BANERJEE

body2016
JUDGMENT : The petitioner has taken no steps to prosecute the petition for nearly ten years. Indeed, given the nature of the allegations in the petition and the reliefs sought, the petition could have been disposed of at the receiving stage without calling for any affidavits. The petitioner was a constable in the Border Security Force. He was sanctioned earned leave for a period of two months till April 4, 2000. In June, 2000, the petitioner wrote to the respondent authorities or to his commandant that the petitioner had high fever, jaundice and malaria and the petitioner was unable to discharge the duties of a constable and should be permitted to retire. However, the petitioner did not pursue such course of action and, in any event, did not offer himself to be examined by any medical board of the Border Security Force. The petitioner continued to be absent without leave till the end of December, 2000, whereupon the petitioner was served a notice of December 19, 2000 by the commandant of the 95 Bn stating that “because of this absence without leave for such a long period your further retention in the service is undesirable.” The petitioner was called upon to indicate his defence by January 20, 2001. The petitioner did not respond to the show-cause notice of December 19, 2000, despite due receipt thereof. The order of punishment was passed by the commandant on January 30, 2001 on the ground that the petitioner was not available and he had not responded to the show-cause notice despite due receipt thereof. The petitioner was dismissed from service with effect from January 30, 2001. The order of punishment referred to the commandant’s authority under Section 11(2) of the Border Security Force Act, 1968 and Rule 177 of the Border Security Force Rules, 1969. The petitioner preferred an appeal from the order of punishment in September, 2005. The appellate authority rejected the same on the ground that the petitioner had been given ample opportunity to resume his duties by the commandant but the petitioner failed to avail thereof or otherwise explain the reasons for his prolonged absence. It is such appellate order of January 31, 2006 which has been questioned in the present petition. The petitioner asserts that since the petitioner was charged for being absent without leave, Section 19 of the said Act, 1968 would apply to his case. It is such appellate order of January 31, 2006 which has been questioned in the present petition. The petitioner asserts that since the petitioner was charged for being absent without leave, Section 19 of the said Act, 1968 would apply to his case. The petitioner contends that the relevant provision mandates that a person who absents himself without leave is required to be convicted by a Security Force Court and no punishment can be awarded to such employee other than by a Security Force Court. The petitioner also refers to Rule 20 of the said Rules of 1969. Section 19 of the said Act of 1968, in its relevant part, provides 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) … 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.” The relevant provision does not, by any stretch of imagination, require a constable of the Border Security Force who absents himself without leave to only be tried by the Security Force Court for the act of dereliction on his part. Section 19 is an enabling provision and permits the Border Security Force to have a Security Force Court constituted to consider the propriety of convicting an employee under such provision. The Security Force Court may only sentence a convict to imprisonment for a term which may extend to three years or award such less punishment as is recognised in the Act. Section 19 of the said Act may be resorted to in addition to any other action that may be taken against an employee. The section is not exhaustive as to how a constable who is absent without leave has to be dealt with by the Force. Section 11 of the Act provides for dismissal, removal or reduction in rank of any employee. It permits the director general or any inspector general or any prescribed officer to dismiss or remove from service any person under his command other than an officer. Rule 177 of the Rules of 1969 expressly empowers a commandant to dismiss or remove from service any person under his command other than an officer or a subordinate officer. It permits the director general or any inspector general or any prescribed officer to dismiss or remove from service any person under his command other than an officer. Rule 177 of the Rules of 1969 expressly empowers a commandant to dismiss or remove from service any person under his command other than an officer or a subordinate officer. Rule 22 of the said Rules of 1969 provides for the procedure to be followed for dismissal or removal of persons other than officers on account of misconduct. It mandates the affording of an opportunity by the competent authority to the delinquent to show cause as to why action should not be taken against him after furnishing the adverse report qua the delinquent to the delinquent. The provision permits the dispensation of the lengthy process of a trial when it is inexpedient to conduct one. In the present case, the petitioner remained absent from April 5, 2000 without any justifiable cause. He put up such a lame excuse as high fever, jaundice and malaria but failed to join his post within any reasonable time of his original leave expiring. The matter was such that it did not call for any trial or protracted hearing since the petitioner did not respond to the show-cause notice of December 19, 2000 and the petitioner was not physically present at his place of posting for the petitioner to be afforded a full-fledged trial. Since the petitioner has not been able to demonstrate any illegality or irregularity in the procedure adopted by the commandant and it is evident from the relevant provision that the commandant had due authority to dismiss or remove the petitioner from service, there does not appear to be any basis to the petitioner’s challenge to the order of punishment as upheld in appeal. It must also be noticed that in view of the period of limitation prescribed in Rule 28A of the said Rules of 1969, the appellate authority was not obliged to entertain the petitioner’s appeal. Nonetheless, the appeal was received and it was rejected on merits and not on the ground that it was filed belatedly. It must also be noticed that in view of the period of limitation prescribed in Rule 28A of the said Rules of 1969, the appellate authority was not obliged to entertain the petitioner’s appeal. Nonetheless, the appeal was received and it was rejected on merits and not on the ground that it was filed belatedly. Since the facts are otherwise not grave or complex and the simple case appears to be that the petitioner did not rejoin his service for a period of more than eight months before the show-cause notice was issued to the petitioner and the excuse proffered by the petitioner for such absence is high fever or jaundice or malaria, it does not appear that the petitioner seriously wanted his job or to continue in service. Further, the petitioner had indicated his willingness to obtain voluntary retirement on medical grounds without the petitioner offering himself to be examined by the medical board of the Force. WP 13780 (W) of 2006 is dismissed without any order as to costs. Certified website copies of this order, if applied for, be urgently made available to the parties upon compliance with the requisite formalities.