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2019 DIGILAW 285 (JK)

Balraj Singh v. Union of India

2019-05-21

SANJEEV KUMAR

body2019
Judgment 1. Impugned in this petition is Order No.21/10/2003-Estt/BSF/7207-7407 dated 23.06.2004 issued by the respondent No.5, whereby the petitioner has been dismissed from service with immediate effect. The petitioner also prays for a direction to the respondents to consider his case for reinstatement on the post of Sepoy, which he was holding at the time of issuance of order impugned. 2. The factual matrix of the case relevant to the determination of issues raised in this petition is that the petitioner a resident of Harayana was enrolled as Follower (Cook) on 07.11.1992. Initially, he was posted in 90 Bn BSF and remained there upto 23.04.1997. Thereafter, the petitioner was posted to STC BSF Udhampur where he served upto 30.04.2001. On his transfer from STC BSF, Udhampur, the petitioner joined 153 Bn BSF on 10.05.2001 and remained there till his dismissal on 23.06.2004. The petitioner, when joined the Unit under the command of respondent No.5 was a known case of “PSORIASIS VULGARIS’ an ailment, which results in development of plaques on the skin. For the aforesaid ailment, the petitioner was extended all the medical facilities as and when required. He was treated in the Unit MI Room, Frontier Hospital BSF, Jammu and the Government Medical College, Jammu etc. As is discernible from the reply affidavit of the respondents, having regard to the ailment of the petitioner, he was not assigned the duties of his original trade of Cook to avoid humidity and heat. On the application of the petitioner seeking earned leave, the respondent No.5 sanctioned the leave of two days so as to enable him to purchase the medicines and have medical consultation. As is apparent from the application for leave submitted by the petitioner, he indicated his address for correspondence during the leave period as resident of Jahroti, Tehsil Kharkhoda Distt Sonipat, Harayana. The petitioner claims that he applied for extension of leave and sent all requisite documents and medical certificates as the condition of the petitioner was not good. However, the petitioner has not placed on record any such application for extension of leave. The petitioner claims that he applied for extension of leave and sent all requisite documents and medical certificates as the condition of the petitioner was not good. However, the petitioner has not placed on record any such application for extension of leave. When the petitioner overstayed his leave and did not report for joining back in the Unit after the expiry of the sanctioned leave, the respondent No.5 vide his Notice dated 29.09.2003, directed the petitioner to resume his duty forthwith and also informed him that his remaining absent without leave was an offence punishable under Section 19(b) of BSF Act, 1968. Instead of complying with the aforesaid notice and joining back his duty, the petitioner sent an application to the respondent No.5 seeking grant of leave for indefinite period so as to enable him to take treatment from Safdarjung Hospital, New Delhi as outdoor patient. The application was not accepted by the respondents on the ground that the ailment suffered by the petitioner was not serious enough as would incapacitate him to undertake journey nor he has been advised rest by the Doctors. Accordingly, the respondent No.5 advised the petitioner to report to Frontier Headquarters BSF, Jammu and also to bring complete medical documents. The aforesaid direction came to be issued by the respondent No.5 on finding that Specialist of the Safdarjung Hospital, New Delhi too had advised him to continue his treatment from Govt. Medical College, Jammu. The petitioner, however, preferred to visit Frontier Headquarters MI Room and then Safdarjung Hospital, New Delhi for treatment, but, did not report either to the Frontier Hospital, Jammu or Govt. Medical College, Jammu and made request for extension of leave for indefinite period. As is claimed by the respondents, the petitioner did not heed to the advice of respondents and continued to remain absent. The medical documents submitted by the petitioner were verified from the Unit Medical Officer, who, in turn, opined that the petitioner was taking treatment as outdoor patient and the disease of the petitioner was not such as would incapacitate him to undertake the journey from his native place to Jammu/Unit location. The respondents claim that they treated the petitioner absent without any leave and, accordingly, the Court of Inquiry was conducted as per the provisions contained in Section 62 of the BSF Act, which was finalised on 10.02.2004. The respondents claim that they treated the petitioner absent without any leave and, accordingly, the Court of Inquiry was conducted as per the provisions contained in Section 62 of the BSF Act, which was finalised on 10.02.2004. As per the provisions of Section 60 of the BSF Act, an apprehension roll was also issued to the SSP, District Sonipat, Harayana with the request to arrange apprehension and delivery of the petitioner to the Force custody, who was the accused of committing the offence under Section 19 of the BSF Act, 1968, but, neither the petitioner re-joined his duty nor any intimation regarding the apprehension of the petitioner was received from the Police Authorities. When no such response was received from the Police Authorities, the respondent No.5 issued a Show Cause Notice dated 23.04.2004 calling upon the petitioner to show cause against his proposed dismissal. The petitioner, as is claimed by the respondents, did not respond to the Notice and as a result, the respondents issued another Show Cause Notice dated 03.06.2004. The petitioner was given an opportunity to say anything in his defence against the proposed dismissal from the service, but, he once again failed to avail the opportunity. The competent authority after considering the matter in its entirety concluded that the petitioner had unauthorisedly overstayed the leave without sufficient cause since 21.09.2003, which was an act of indiscipline by a member of the Belt Force and therefore, vide impugned order, the petitioner was ordered to be dismissed from the service. He made a representation to the respondent No.3 for reinstatement, which too was found devoid of any merit and rejected vide No. L/No.202-/Re-Inst/Estt-II/05/470-75 dated 05.01.2005. 3. In the backdrop of the aforesaid factual background, the petitioner has challenged the impugned order, primarily, on the grounds that prior to the issuance of Show Cause Notice of proposed penalty, the petitioner was never put to any notice nor was ever called upon to participate in the inquiry, if any, conducted by the respondents. He claims that the whole action was taken by the respondents including conducting of Court of Inquiry at the back of the petitioner, and therefore, the same could not have been made the basis for terminating the services of the petitioner. He claims that the whole action was taken by the respondents including conducting of Court of Inquiry at the back of the petitioner, and therefore, the same could not have been made the basis for terminating the services of the petitioner. The petitioner has specifically challenged the impugned order on the ground that it violates the provisions of Rules 60, 61 and 62 of the BSF Act and the Rules framed thereunder. The petitioner claims that had he been given the adequate opportunity of being heard, he would have amply explained his absence, which was neither deliberate nor intentional, but, due to his ill health, which incapacitated him to join back his duty after the expiry of sanctioned leave. He claims that he had time and again been requesting the respondents to grant him extension in leave so that he could join back his duties after getting fully recovered from the disease. The petitioner also claims that he only received one Notice dated 23.04.2004, whereby he was called upon to show cause against the proposed penalty and was also directed to report to the Battalion Headquarters before 31.05.2004.The petitioner submits that in response to the aforesaid Notice, he asked for extension of leave and submitted all the requisite medical documents whereby intimating the respondents that he was still undergoing the treatment. The response of the petitioner was ignored by the respondent No.5, who, acting in a most arbitrate manner, dismissed the petitioner from the service. The petitioner further states that he filed an appeal before the respondent No.3, which was summarily rejected without giving any reason. The petitioner assails the order impugned on the ground that as per the provisions of Section 62 of the BSF Act and the Rules framed thereunder, the petitioner, was supposed to be given a period of thirty days to join. The petitioner also claims that so called Court of Inquiry conducted by the respondents in terms of Section 62 of the BSF Act is also vitiated as the procedure laid down in Rules 170 to 176 of the Rules framed under the BSF Act has not been followed. The petitioner also urges that the punishment awarded to him, even if he is presumed to have overstayed his leave, without permission, is too harsh and disproportionate to the act of misconduct attributed to him. 4. The petitioner also urges that the punishment awarded to him, even if he is presumed to have overstayed his leave, without permission, is too harsh and disproportionate to the act of misconduct attributed to him. 4. On the other hand, the respondents in their reply have given details of the procedure, which they have supposedly followed before coming to the conclusion that the petitioner had overstayed his leave without any sufficient reason and without any permission from the competent authority and therefore, had entailed the penalty of dismissal from the service. It is submitted that prior to initiating the Court of Inquiry in terms of Section 62 of the Act, the petitioner was given several opportunities to resume his duty. He was also advised that if some medical treatment was required, he should report Frontier Hospital, Jammu or Govt. Medical College, Jammu. The respondents also submit that the medical status of the petitioner was got verified from the Unit Doctor, who after going through the documents submitted by the petitioner, opined that the ailment suffered by the petitioner was not such as would incapacitate him to travel to Jammu and to take treatment either in the Frontier Hospital, Jammu or Govt. Medical College, Jammu. It was also found that the petitioner was not regular patient of the Safdarjung Hospital, New Delhi, but, was receiving the treatment as outdoor patient. In a nutshell, the respondents did not find that the petitioner was prevented by sufficient cause from joining back his duty immediately after the expiry of his leave. It is claimed that the petitioner was intimated at the address given by him in the application for leave, time and again, but, he chose not to respond. He did not participate in the Court of Inquiry. Ultimately, the competent authority, after satisfying that the petitioner had remained unauthorisedly absent without leave and without any sufficient cause and had violated the discipline of the Force decided to impose the extreme penalty of dismissal on the petitioner. 5. Having heard learned counsel for the parties and perused the record, it is first necessary to set out the relevant provision of BSF Act, 1968 and the Rules framed thereunder. Section 11 of the Act which deals with the dismissal, removal or reduction of the person subject to the Act reads as under:— “11. 5. Having heard learned counsel for the parties and perused the record, it is first necessary to set out the relevant provision of BSF Act, 1968 and the Rules framed thereunder. Section 11 of the Act which deals with the dismissal, removal or reduction of the person subject to the Act reads as under:— “11. Dismissal, removal of reduction by the Director-General and by other officers.—(1) The Director-General or any Inspector-General may dismiss or remove from the service or reduce to a lower grade or rank or the ranks any person subject to this Act other than an officer.(2) An officer not below the rank of Deputy Inspector-General or any prescribed officer may dismiss or remove from the service any person under his command other than an officer or a subordinate officer of such rank or ranks is may be prescribed.(3) Any such officer as is mentioned in sub-section (2) may reduce to a lower grade or rank or the ranks any person under his command except an officer or a subordinate officer.(4) The exercise of any power under this section shall be subject to the provisions of this Act and the rules. 6. A plain reading of Section 11 of the Act makes it clear that the power of dismissal from service of the prescribed authority under Section 11(2) of the Act is independent and does not depend upon the award of punishment by the Security Force Court. As member of the Force other than an officer or subordinate officer of such rank or rank as may be prescribed can be dismissed, removed or reduced in rank by the Commandant. In the instant case, the petitioner, however, has not challenged the competence of the Commandant to issue the impugned order. Section 11 of the Act further provides that the exercise of power of the dismissal, removal or reduction in rank would be subject to the provision of this Act and the Rules. Since the instant case is a case of petitioner overstaying leave granted to him, as such, it would be appropriate to quickly refer to the provisions of Section 62 of the Act. Since the instant case is a case of petitioner overstaying leave granted to him, as such, it would be appropriate to quickly refer to the provisions of Section 62 of the Act. It may be noted that in terms of Section 19(b) of the Act overstaying leave without sufficient cause is an offence for which the delinquent on conviction by the Security Force Court may be liable to suffer imprisonment for a term, which may extend to three years or such less punishment as is in the Act mentioned. Since the respondents have not tried the petitioner by a Security Force Court, as such, the provisions of Section 19(b) of the Act are of no significance in the instant case and therefore, there reproduction is avoided. So far as Section 62 of the Act is concerned, it provides for the procedure to be followed in an inquiry into absence without leave and, therefore, for expediency is reproduced as under:— “62. Inquiry into absence without leave.—(1) When any person subject to this Act has been absent from duty without due authority for a period of thirty days, a court of inquiry shall, as soon as practicable, be appointed by such authority and in such manner as may be prescribed; and such court shall, on oath or affirmation administered in the prescribed manner, inquire respecting the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or necessaries; and if satisfied of the fact of such absence without due authority or other sufficient cause, the court shall declare such absence and the period thereof and the said deficiency, if any, and the Commandant of the unit to which the person belongs shall make a record thereof in the prescribed manner. (2) If the person declared absent does not afterwards surrender or is not apprehended, he shall for the purposes of this Act, be deemed to be a deserter.” 7. (2) If the person declared absent does not afterwards surrender or is not apprehended, he shall for the purposes of this Act, be deemed to be a deserter.” 7. A perusal of Section 62 of the Act would show that when any member of the Force (BSF), who is subject to the Act remains absent from the duty without leave or permission of the authority concerned for a period of thirty days, the competent authority is an under obligation to appoint a Court of Inquiry to go into the reasons of such absence of the member of the Force. The Court of Inquiry is enjoined to inquire into the absence of the person by recording statement or explanation on oath or affirmation administrated in the prescribed manner. It will also go into deficiency, if any, in the property of the government entrusted to the care of such person etc. The Court of Inquiry, if feels satisfied that absence of the member of the Force is without due authority or for other sufficient cause, shall declare such absence and the period thereof as also the deficiency, if any, and the Commandant of the Unit to which the person belongs shall make a record thereof in the manner prescribed in the Rules. The person whose absence has been declared by the Court of Inquiry as without due authority or sufficient cause shall, then be asked to surrender or be apprehended and if such person does not surrender or is not apprehended, he shall be deemed to be a deserter. 8. Rule 22 of the BSF Rules, 1969, which is also relevant to the controversy raised in this petition also needs to be noticed, thus, reads as under:— 22. 8. Rule 22 of the BSF Rules, 1969, which is also relevant to the controversy raised in this petition also needs to be noticed, thus, reads as under:— 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 if 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 Subedar. (4) All cases of dismissal or removal under this rule, shall be reported to be Director-General.” 9. Sub Rule (1) of the Rule 22 of the Rules clearly provides that if it is proposed to terminate the service of a person subject to the Act other than an officer, he is to be given an opportunity by the authority competent to dismiss or remove him to show cause as to why he cannot be terminated from the service. The Show Cause Notice to be given to the delinquent member ought to be in the manner specified in Sub Rule (2), which inter alia provides that if the competent authority, after considering the reports on misconduct of the person concerned, is satisfied that the trial of such person is inexpedient or impracticable, but, is of the opinion that his further retention in the service is undesirable, it shall so inform the delinquent together with all reports adverse to him. The delinquent then shall be called upon to submit in writing his explanation and defence. The competent authority, however, is entitled to withhold from the disclosure any such adverse report or portion thereof, if in his opinion its disclosure is not in public interest. It is after complying with Sub Rule (2), the competent authority under Sub Rule (3) is required to consider the explanation and the defence of such person, if any, and take a decision with regard to termination of the services of such member with or without pension. The last but not the least, the competent authority is required to report all the cases of dismissal or removal to the Director General. 10. These are statutory provisions that governs the delinquent members, who are found absent from duty for more than 30 days, and in the Court of Inquiry are found to be absent without due authority and sufficient cause. It is in the context of these statutory provision, which are mandatory in nature, the case set up by the petitioner is required to be examined, of course, in the light of reply affidavit filed by the respondents. With a view to test the veracity of the averments made in the reply affidavit by the respondents, I have ventured to examine the record pertaining to the case of the petitioner produced by Mr. Parimoksh Seth, learned CGSC. Admittedly, the petitioner, who had overstayed his leave without sufficient cause for a period of 277 days was liable to be proceeded for the commission of an offence under Section 19(b) of the Act, but, the respondents did not chose to try him by the Security Force Court. The respondents, instead, proceeded under Section 62 of the Act and appointed a Court of Inquiry in which it was found that the petitioner had absented from the service without due authority and sufficient cause. The respondents, instead, proceeded under Section 62 of the Act and appointed a Court of Inquiry in which it was found that the petitioner had absented from the service without due authority and sufficient cause. The Court of Inquiry, therefore, declared his absence, as such, the respondents thereafter, issued Notices to the petitioner to surrender. Even apprehension roll was issued to the concerned District Police to apprehend and handover the petitioner to the Force. Neither the petitioner surrendered nor he could be apprehended and produced by the concerned Police before the Force. Accordingly, the respondent no.2 decided to terminate the services of the petitioner for this act of misconduct, which is punishable under Section 19(b) of the BSF Act, 1968. Two Show Cause Notices were issued to the petitioner; one on 23.04.2004 and 2nd on 03.06.2004. The first Notice, which was issued on 23.04.2004 was a Show Cause Notice calling upon the petitioner to explain as to why he be not terminated from the service for remaining absent without due authority or sufficient cause. The petitioner was simultaneously asked to join back his duty. The second notice dated 03.06.2004 is also in the nature of Notice of proposed penalty as envisaged under Rule 22 Sub Rule (2) of the BSF Rules. From the Notice, it further transpires that along with Notice, the petitioner was also supplied with copy of the report of the Court of Inquiry. Admittedly, the petitioner has not responded to the aforesaid Notice and consequently the respondents issued the impugned order, thus, dismissing the petitioner from the service w.e.f. 23.06.2004. From the perusal of the record, I could find some serious irregularities committed in the procedure followed by the respondents leading to the dismissal of the petitioner. One thing that was found quite discernible from the record is that there is no satisfaction recorded by the competent authority that the trial of the petitioner was inexpedient or impracticable, and in his opinion further retention of the petitioner in service was undesirable. No such decision has been intimated to the petitioner. There is, however, some mention in the Show Cause Notice that trial of the petitioner was not expedient or practicable. It is not in dispute that the petitioner on his request was initially granted two days earned leave, though the petitioner had applied for twenty days leave. No such decision has been intimated to the petitioner. There is, however, some mention in the Show Cause Notice that trial of the petitioner was not expedient or practicable. It is not in dispute that the petitioner on his request was initially granted two days earned leave, though the petitioner had applied for twenty days leave. The said leave expired on 18.09.2003, but, the petitioner did not report for duty, rather, submitted an application requesting for twenty days extension. The application was supported with medical documents. On verification of medical documents, the respondents, however, did not accede to the request and, accordingly, called upon the petitioner to join his back duty and report to the Frontier Hospital, Jammu or to the Govt. Medical College, Jammu. When the petitioner did not respond and remained absent of more than thirty days, the respondents proceeded under Section 62 of the Act and appointed One Man Court of Inquiry, who appears to have conducted the proceedings and recorded the statement of in as many as five witnesses. From the record, it clearly reveals that the Court of Inquiry was conducted in ex parte without even giving notice to the delinquent. Sub Rule 8 of Rule 173 of the BSF Rules, 1969 clearly provides that before giving an opinion against the person subject to the inquiry, the Court shall afford that person the opportunity to know all that has been stated again him, cross-examine the witnesses, who have given evidence against him and make a statement and call the witnesses in his defence. Obviously, this provision of Rule 173 of the Rules has not been followed at all, at least, the same is not discernible from the records. That being the position, the Court of Inquiry, which has been relied upon by the respondents on which impugned order has been predicated is vitiated in law. And this defect in the form and substance goes to the roots of the matter. The impugned order, which proceeds on the basis of the finding of the Court of Inquiry recorded in terms of Section 62 of the Act is, therefore, bad in the eye of law and cannot sustain. Even, I could not find out any proof of service of show cause of proposed penalty on the petitioner. 11. The impugned order, which proceeds on the basis of the finding of the Court of Inquiry recorded in terms of Section 62 of the Act is, therefore, bad in the eye of law and cannot sustain. Even, I could not find out any proof of service of show cause of proposed penalty on the petitioner. 11. Learned Senior counsel appearing for the petitioner has cited several judgment of this Court to emphasize the point that failure to comply with the Rule 22 Sub Rule 2 of BSF Rules, 1969 vitiates the whole proceedings and renders order of dismissal nullity. I have gone through the judgments cited by the learned Senior Counsel at Bar and am of the view that the same are not attracted in the instant case. In the impugned Show Cause Notice issued on 03.06.2004, the competent authority has recorded its satisfaction that the trial of the petitioner in the given circumstances, is not only inexpedient, but, is also impracticable. The Show Cause Notice also indicates that the adverse material, i.e., report of Court of Inquiry, too was annexed with the Show Cause Notice. However, the competent authority has nowhere recorded its opinion that in view of the conduct of the petitioner, his further retention in the service was undesirable. That apart, as I have noted hereinabove, the report of Court of Inquiry appointed in terms of Section 62 of the Act, which is the only adverse report relied upon by the petitioner is vitiated for not complying with the mandate of Sub Rule 8 of Rule 173 of the Rules and therefore, Show Cause Notice as also the consequent order of dismissal of the petitioner cannot sustain. 12. For the foregoing reasons, I find merit in this petition and quash the order impugned whereby the petitioner was dismissed from service by the respondent w.e.f. 23.06.2004. The petitioner shall be reinstated forthwith with all consequential benefits. The respondents, however, shall be at liberty to hold a limited inquiry to find out as to whether during the period the petitioner remained out of service, he was gainfully employed or not so as to determine his entitlement to the back wages. The respondents shall also be free to hold fresh inquiry in terms of the mandate of the provisions of Act and the Rules framed thereunder. 13. Disposed of as above along with connected IA(s).