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2017 DIGILAW 68 (MEG)

Biju VV v. Union of India

2017-10-05

VED PRAKASH VAISH

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JUDGMENT : V.P. Vaish, J. By way of the present petition, the petitioner seeks setting aside of the impugned order dated 18th January, 2002 and order dated 5th September, 2002 passed by respondent No. 4 and also for reinstating him in service with all consequential benefits. 2. Succinctly stated, the facts leading to the filing of the present petition are that the petitioner was appointed as a constable (General Duty) in the Border Security Force (BSF) on 15th January, 1990. On completion of his training, the petitioner was posted to the 111 Battalion, BSF at Nagaland and was later transferred to 55 Battalion, BSF. 3. It is stated that while the petitioner was rendering services in the 55 Battalion, BSF, in September, 2000, his father fell seriously ill. The petitioner alleged that he was neither informed of the illness of his father by the authorities, nor was he allowed to go on leave. 4. It is also stated by the petitioner that the then Commandant of the 55 Battalion had called the petitioner and asked him to avail leave to go home and see his ailing father. However, the father of the petitioner expired on 4th November, 2000 and he reached home only on 8th September, 2000. The petitioner has also stated that he suffered from mental shock due to the entire incident. He returned back to his duties at BSF, Shillong on the expiry of his leave. The petitioner has also alleged harassment from the superiors of the unit. 5. It is further stated that the petitioner was thereafter granted 60 days earned leave w.e.f. 18th June, 2001 to 21st August, 2001 and he went to his home in Kerala. It is stated that after availing leave, the petitioner reached Shillong to join duty, when he was not allowed to enter the premises by the then Commandant, Shri P. Raju. 6. It is further stated by the petitioner that in the month of March, 2002, the petitioner was informed by his brother that an order dated 18th January, 2002 was issued by the Commandant of the 55 Battalion, BSF, whereby the services of the petitioner was terminated on the ground of availing unauthorised leave. 7. The petitioner preferred and appeal against the aforesaid order before the competent authority, which was dismissed. The petitioner approached this Court by filing a writ petition being No. WP(C) 48 (SH) of 2011. 7. The petitioner preferred and appeal against the aforesaid order before the competent authority, which was dismissed. The petitioner approached this Court by filing a writ petition being No. WP(C) 48 (SH) of 2011. This Court vide order 5th July, 2012, directed the respondents to constitute a Court of Inquiry within two months and to consider the grievances of the petitioner. However, the order of termination was not set aside, and only the Court of Inquiry was ordered by the Court. 8. The respondents filed a review petition in the aforesaid writ petition which was registered as Review Petition No. 6 (SH) of 2012 and this Court modified the order to the extent that the provision for allowing the petitioner to be represented by a lawyer would no longer be applicable and that the respondents were directed to conduct the inquiry in accordance with law. 9. In compliance to the orders passed by this Court, the respondents constituted the Court of Inquiry. The petitioner participated in the inquiry and the witnesses were examined. The petitioner alleged that the respondents did not inform him of the outcome of the enquiry report. 10. The respondents filed an application bearing No. MC(SH) 226/2013 in WP(C) No. 48 (SH)/2011 for placing on record the compliance report of order dated 13th February, 2013 passed by this Court which was disposed of on 12th July, 2013. The petitioner alleged that though the enquiry report was signed and submitted on 24th April, 2013, the same was sent to the petitioner only on 15th June, 2013. It is stated that the Court of Inquiry found that the petitioner had overstayed his leave without sufficient cause and that the reason given by the petitioner for over staying the leave was not plausible. 11. The petitioner, thus, filed the instant writ petition. 12. The petition is opposed by the respondents by filing counter affidavit. The respondents have denied the allegations made in the writ petition. It is stated that the petitioner was allowed 60 (Sixty) days earned leave w.e.f 18th June, 2001 to 16th August, 2001 with five days journey period. The petitioner remained absent from duties for 149 days from 22nd August, 2001 to 17th January, 2002. The Commandant sent letters dated 5th September, 2001 and 25th September, 2001 to the petitioner and asked him to join his duty immediately but the petitioner did not give any response. The petitioner remained absent from duties for 149 days from 22nd August, 2001 to 17th January, 2002. The Commandant sent letters dated 5th September, 2001 and 25th September, 2001 to the petitioner and asked him to join his duty immediately but the petitioner did not give any response. Thereafter, a Court of Inquiry was conducted, and a Show Cause notice along with the proceedings of Court of Inquiry was sent to the petitioner vide letter dated 7th December, 2001 requiring the petitioner to urge anything in his defence against the proposed dismissal from the service. Another opportunity was given to the petitioner and a letter along with all previous correspondence was sent to him vide letter dated 27th December, 2001. Since no response was received from the petitioner, the Commandant of the unit was left with no other option but to dismiss him from service under section 11(2) of the BSF Act read with Rule 177 and 22 of the BSF Rules, 1969 vide letter dated 18th January, 2002. 13. It is also stated by the respondents that the statement of the petitioner recorded during the Court of Inquiry was read over to him in the language he understands and thereafter he signed on his statement. During the course of inquiry statement of the petitioner and statement of HC (Min) Dulal Chandra Mandal were recorded on 22nd April, 2013 and 23rd April, 2013 respectively. The petitioner was afforded with the opportunity to know all that had been stated against him and to cross-examine the witnesses and also to adduce any witness. It is stated that the petitioner was given full opportunity to defend himself in terms of the provisions of Rule 173 (8) of the Border Security Force Rules to know all that has been stated against him, to cross-examine any witness, to give statement in his defence and to produce witness in his defence. The petitioner was given opportunity as per BSF Rules, 1969 to defend him and no prejudice was caused to the petitioner in the Court of Inquiry. 14. Learned counsel for the petitioner contended that the respondents have failed to consider the fact that the petitioner had good grounds to justify his over stay of leave from 22nd August, 2001. 15. The petitioner was given opportunity as per BSF Rules, 1969 to defend him and no prejudice was caused to the petitioner in the Court of Inquiry. 14. Learned counsel for the petitioner contended that the respondents have failed to consider the fact that the petitioner had good grounds to justify his over stay of leave from 22nd August, 2001. 15. Learned counsel for the petitioner argued that the Inquiry Officer did not follow the procedure laid down in Chapter-XII of the BSF Rules, and more specifically, Rules 173 to 176. The Court of Inquiry did not record the evidence of any witnesses in the presence of the petitioner, and he was not given any opportunity to know of anything that had been stated against him by any of the witnesses, nor any opportunity to call for witnesses in his defence. The petitioner was not allowed to participate in any further proceedings. 16. It is further argued by learned counsel for the petitioner that the petitioner was only allowed to attend the proceeding on 22nd April, 2013 and that he did not have any knowledge of any of the proceedings of the Court of Inquiry that were held on subsequent dates. The petitioner was also not served with copies of the proceedings. 17. Learned counsel for the petitioner submitted that the actions of the respondents are arbitrary and against the principles of natural justice. The offence alleged against the petitioner is only over stay at the expiry of the leave period, for which, according to the principle of natural justice, the punishment of dismissal from service is wholly disproportionate inasmuch as Section 53 of the BSF act has made under such circumstances, provisions for minor punishment to which the disciplinary authorities have closed their eyes totally. 18. Learned counsel for the respondents, on the other hand, contended that the order of dismissal pursuant to the findings of the Court of Inquiry is perfectly legal and valid, as the petitioner did not report to duty for a period of 149 days, without any intimation to the unit where he was posted or any other Headquarter of BSF. 19. Learned counsel for the respondents also urged that there was no violation of any of the provisions of the BSF Act and Rules. 19. Learned counsel for the respondents also urged that there was no violation of any of the provisions of the BSF Act and Rules. The petitioner was intimated about the outcome of the Court of Inquiry vide letters dated 15th June, 2013 and 31st August, 2013. It is further stated that during the Court of Inquiry, the petitioner was afforded full opportunity to defend himself in terms of the provisions of the BSF Rules. It is also argued by the counsel for respondents that the Court of Inquiry was conducted strictly as per the provisions of the BSF Act and the Rules. 20. Another submission of learned counsel for the respondents is that as per the provisions of the BSF Act and the Rules, unauthorised absence from duty by personnel of the Armed Forces for even less than a week, is considered to be a very serious offence. The petitioner admittedly did not report for duty after the expiry of the sanctioned leave for a period of 149 days. 21. I have given my thoughtful consideration to the submissions advanced by learned counsel for both the parties. I have also carefully gone through the material placed on record. 22. Admittedly, the petitioner was sanctioned earned leave for 60 days w.e.f. 18th June, 2001 to 16 August, 2001 with five days journey period. He did not join duty after availing the earned leave. The respondents issued letters dated 5th September, 2001 and 25th September, 2001 to the petitioner asking him to join the duty. The petitioner neither replied to the said letters nor did he join the duty. 23. The respondents also issued letters/show cause notice to the petitioner on 7th December, 2001 and 27th December, 2001. Since no reply was forthcoming from the petitioner, the respondents dismissed the petitioner from service on 18th January, 2002. Thus, the issuance of show cause notice to the delinquent satisfied the requirement of Rule 20 of the Border Security Force Rules, 1969 (B.S.F. Rules). Rule 20 of the BSF Rule provides for termination of service of officers on account of misconduct and Rule 21 provides for appointment of an Enquiry Officer and the procedure to be followed by him. Thus, the issuance of show cause notice to the delinquent satisfied the requirement of Rule 20 of the Border Security Force Rules, 1969 (B.S.F. Rules). Rule 20 of the BSF Rule provides for termination of service of officers on account of misconduct and Rule 21 provides for appointment of an Enquiry Officer and the procedure to be followed by him. Under sub section (2) of section 11 of Rule 177 of the BSF Rules, the Commandant may, under sub section (2) of section 11, dismiss or remove from the service any person under his command other than an officer or a subordinate officer. 24. Under sub section 11 (2) of Rule 177 of the BSF Rules, the Commandant may, under sub section (2) of Section 11, dismiss or remove from the service, any person under his command other than an officer or a subordinate officer. Before the order of dismissal of such person is passed, procedure as prescribed under Rule 22 of the aforesaid Rule, is required to be followed. Rule 22 of the B.S.F. Rules is quoted 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, its disclosure is not in the public interest. (3) The competent authority after considering his explanation and defence it 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 Sebedar. (4) All cases of dismissal or removal under this rule, shall be reported to be Director-General. 25. Rule 173 of the B.S.F. Rules provides procedure of Court of Inquiry. Sub Rule (8) of Rule 173 provides that before giving an opinion against any person subject to the Act, the Court will afford that person an opportunity to know all that has been stated against him, cross-examine any witnesses who have given evidence against him, and make a statement and call witnesses in his defence. 26. The proceedings relating to the Court of Inquiry was produced by the respondents (R-12 of the counter affidavit). The same contained Compliance of Rule 173 (8), which is reproduced as under:- "Compliance Of Rule 173 (8) Ex Constable Biju VV was proceeded on 60 days earn leave w.e.f. 18/06/2001, after expire of said leave Ex Constable Biju VV neither made any correspondence with unit nor physically reported at unit HQ 55 BN BSF Upling till 17-01-2002 You are hereby given the following an opportunity as per BSF' Rule 173 (8) A. Opportunity to know all that has been stated against you. B. May cross examined any witness who had given statement against you. C. You can make a statement and may call a individual witness in your defence. B. May cross examined any witness who had given statement against you. C. You can make a statement and may call a individual witness in your defence. Ex Ct Biju VV desire to make a statement in his defence "That termination of my service caused several mental stigma to me and as a result I started suffering from mental disorder and lost power of mental intelligence after prolonged treatment of eight to nine years Re-again my mental intelligence and have approached the honourable high court for appropriate relief:- Sd/- Sd/- (PREMPAL SINGH), AC/PO HC P. MANI SEKHAR No. 8920014531, 55 Bn BSF" Ex-CT Biju 27. The story put forward by the petitioner certainly lacks bona fides and is a mere excuse to overcome his unauthorised absence. A perusal of the enquiry proceedings clearly reveal that the petitioner duly participated in the enquiry and had also signed the proceedings. Thus, the argument of the learned counsel for the petitioner that the petitioner was not allowed to attend the proceedings on 22nd April, 2013 and that he did have any knowledge of any proceedings of the Court of Inquiry falls to the ground. 28. The Inquiring Authority considered the evidence and material placed before it and opined that there was no substantial proof about the harassment to the petitioner and that many opportunities were given to the petitioner to join duty, but he did not pay any attention to the said directions. It was further opined that the individual had overstayed the leave without sufficient cause and the reason given by him for overstay was also not plausible. 29. The Court cannot lose sight of the fact that absenteeism in the disciplined force is a serious matter because it cripples the entire administration of the force. Each and every personnel of the force is deployed for duty with specific tasks. It is like a chain and if one link of chain is missing, it jeopardise the entire security system. If a disciplined force personnel is found absent from duty, it weakens the whole security system of the force, which is quite serious. 30. In a disciplined force, unauthorised absence for over a long period would be a serious misconduct, and the Court can hardly find fault with the findings recorded by the Court of Inquiry which are primarily based upon the admission of guilt of the petitioner. 30. In a disciplined force, unauthorised absence for over a long period would be a serious misconduct, and the Court can hardly find fault with the findings recorded by the Court of Inquiry which are primarily based upon the admission of guilt of the petitioner. The statutory appeal preferred by the petitioner has also been rejected by the competent authority. There is nothing on record before this Court which could even remotely show, much less prove prima facie, that the petitioner remained in unauthorised absence with good and sufficient cause. The plea that the petitioner's sentence was disproportionate, in any case, is not justifiable. Unauthorised absence for such a long period is a serious misconduct. In this back drop, I am unable to hold that the punishment imposed upon the petitioner is excessive or unreasonable. 31. From a perusal of the record, it is clear that all efforts were made by the respondents to call upon the petitioner to join the duties and to explain his unauthorised absence, but since neither did the petitioner reply to the letters/show cause notices, nor did he join the duties and give any valid explanation for the same. He was also not bothered about the repeated warnings given to him and continued to remain absent unauthorisedly, and that the respondents had no other option but to terminate his service. If the petitioner had been terminated, he has no one to blame but himself, because he alone is responsible for it. It is absolutely clear that sufficient opportunities were given to the petitioner, but he did not feel it necessary to even inform the authorities. 32. The Hon'ble Supreme Court in the case of 'Union of India and Others v. Ram Phal', reported as (1996) 7 SCC 546 , it was held that holding an inquiry by the Security Force Court is not a condition precedent for the prescribed officer i.e. the Commandant to pass an order of dismissal on account of the continuing absence of an officer from duty under Section 11 (2) of the B.S.F. Act, 1968 as long as there is sufficient compliance of the principles of natural justice. 33. 33. In the facts and circumstances, therefore, the petitioner has not been able to make out a sufficient cause for overstaying his leave from 22nd August, 2001 and the order of dismissal was passed after the show cause notices dated 7th December, 2001 and 27th December, 2001 were issued to the petitioner, which were also not replied to by the petitioner, and consequently, no illegality, irregularity or perversity has been made out by the petitioner in the order of dismissal passed against him. 34. For the foregoing reasons, there are no grounds to interfere with the Court of Inquiry and the termination order against the petitioner and to exercise its jurisdiction by this Court under Article 226 of the Constitution of India. The writ petition is without any merit, and it is, therefore, dismissed.