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2019 DIGILAW 343 (CAL)

Sahid Imam v. Union of India

2019-03-11

ABHIJIT GANGOPADHYAY

body2019
JUDGMENT : 1. These two writ applications, the first one of 2001 (W.P. No.10430 (W) of 2001) and the second one of 2003 (W.P. No. 1297 (W) of 2003) relate to service of the petitioner (of both the applications) Md. Sahid Imam. 2. By filling W.P. No. 10430 (W) of 2001(hereinafter referred to as the first application) the petitioner prayed for cancellation of an order of transfer and also recalling of the same for his treatment at S.S.K.M. Hospital Calcutta. By filing W.P. 1297 (W) of 2003 (hereinafter referred to as the second application) the petitioner has challenged his dismissal from service. 3. The petitioner was a Constable in Border Security Force (BSF, in short, hereafter). 4. In respect of the first application initially no interim order was passed when the matter was moved on 27.06.2001. On that date direction for filing affidavit was given. On the prayer of the respondent authority time to file affidavit was extended on 17.07.2001 directing to file the same by 08.08.2001 and affidavit-in-reply by 09.01.2001. On 07.08.2001 the respondent authority prayed for further time to file affidavit-in-opposition which was granted and the time was extended till August 21, 2001 and affidavit-in-reply by August 31, 2001. 5. The affidavit-in-opposition in the first mater on behalf of the respondent authority (being BSF) was not filed till 15.10.2001 and after recording submission of the respondent one last opportunity for filing affidavit-in-opposition was passed and on 15.10.2001 the impugned order being the order of transfer was stayed till 15th January 2002. 6. Thereafter, no effort is found on the part of the petitioner for extension of the interim order and the same interim order was not extended after 15.01.2002. 7. It is found that the respondents affirmed their affidavit-in-opposition on 16.11.2001 which was filed later and is found on record. 8. This first application was dismissed for default on 09.02.2005 and subsequently was restored on 12.01.2007. On 12.01.2007 or thereafter, the interim relief given on 15.10.2001 was not granted further. On 05.08.2009 an order was passed in the first application for listing the matter along with other writ application being W.P. No. 1297 (W) 2003. 9. In the second application (W.P. 1297 (W) 2003) the prayer of the petitioner was for setting aside order of dismissal (from service) passed on 09.12.2002. This second application was affirmed on 07.01.2003. 10. On 05.08.2009 an order was passed in the first application for listing the matter along with other writ application being W.P. No. 1297 (W) 2003. 9. In the second application (W.P. 1297 (W) 2003) the prayer of the petitioner was for setting aside order of dismissal (from service) passed on 09.12.2002. This second application was affirmed on 07.01.2003. 10. Both the first application and the second application have been heard together. 11. In the second application I find two facts which are significant. 12. The first of such facts is in paragraph 20 of the second application wherein it has been stated by the writ petitioner that "...the respondent authority issued show-cause and proceeding against your petitioner on 07.12.2001". 13. The other significant fact has been pleaded in paragraph 23 of the second application wherein the petitioner has stated "that when the petitioner came to know that the proceedings is continuing against your petitioner soon thereafter the petitioner contacted his learned advocate for taking precaution regarding the impugned proceedings". 14. Thus it is admitted from the above statements made by the petitioner that the petitioner had specific knowledge about the initiation of disciplinary proceeding by BSF against him. 15. The petitioner was dismissed from service by an order dated 7th December 2002, wherein it has been stated that the petitioner was over stayed from leave w.e.f. 22.08.2001 (F.N.) He was given opportunity through show-cause notices by registered letter Nos. Estt/Disc/18Bn/2001/4390-4403 dated 07.12.2001 and Estt/Disc/18Bn/2002/6102-03 dated August 31, 2002. But the petitioner did not avail of the opportunity to give reply to show-cause. In the proceeding it was held that the petitioner over stayed from leave without reasonable cause and his further retention in service was undesirable and therefore, he was dismissed from service w.e.f. 09.12.2002 (A.N.) in terms Section 11 (2) of BSF Act 1968 read with Rule 177 of 1969 Rules without any pensionary benefit. 16. In the proceeding it was held that the petitioner over stayed from leave without reasonable cause and his further retention in service was undesirable and therefore, he was dismissed from service w.e.f. 09.12.2002 (A.N.) in terms Section 11 (2) of BSF Act 1968 read with Rule 177 of 1969 Rules without any pensionary benefit. 16. In the second application there is no averment that the petitioner did not receive any show-cause notice as has been referred in the order of dismissal which has been made annexure P-6 of the second application but in the affidavit-in-reply in paragraph 7 while dealing with paragraph 18, 19, 20, 21, 22, 23 and 24 of the affidavit-in-opposition (to the second application) the petitioner has alleged that he had not received any show-cause notice and there was no question for giving reply to that and he has further alleged in the affidavit-in-reply that without giving opportunity of hearing and without giving change (sic) for adjudicating the matter properly his service had been terminated. 17. Such allegation of the petitioner is not believable in view of the two significant facts as has been quoted hereinabove from the second application and it is clearly an afterthought to make out a case in the affidavit-in-reply. I hold that the writ petitioner was granted sufficient opportunity to defend his case but he did not avail of the opportunity. His allegation of not getting any opportunity of hearing is wholly incorrect to say the least and I reject such allegation of the petitioner. 18. Here brief facts of the service tenure of the petitioner as found from the petitions and affidavits thereto are required to be noted. 19. According to the respondent authority as is found from the affidavit-in-opposition (paragraph 31) of the second application the petitioner was on unauthorised leave from 22.08.2001 to 09.12.2002 i.e. for 475 days. 20. The petitioner joined BSF on 10.09.1987 and after passing out basic training from Bangalore training Centre he was posted in 67 Battalion (Bn in short, hereafter) of BSF Ferozepur, Punjab. In Punjab in an accident one of his children died in 1995 and his wife became sick after such death. When one Bn of BSF being 92 Bn was moving from Punjab to West Bengal at Kalyani he was posted in 92 Bn from 67 Bn. He joined 92 Bn on 07.09.1995. In Punjab in an accident one of his children died in 1995 and his wife became sick after such death. When one Bn of BSF being 92 Bn was moving from Punjab to West Bengal at Kalyani he was posted in 92 Bn from 67 Bn. He joined 92 Bn on 07.09.1995. When the 92Bn, was moved from Kalyani to Kashmir he managed his posting from 92 Bn to 18 Bn to remain in Kalyani. He joined 18 Bn, at Kalyani on 21.10.1997. When his Bn 18 completed its tenure in West Bengal and was earmarked for moving elsewhere (according to the petitioner to Kashmir) and when 100 Bn was coming to West Bengal, Kalyani he again tried to be posted in the incoming unit 100 Bn on the ground of medical treatment which was not considered by the higher authority on the ground that 18 Bn, BSF was moving to Patgaon (Guwahati) where there is also medical facility. It has been motioned in the affidavit-in-opposition of BSF that the petitioners posting to Kalyani, West Bengal was considered favourably twice earlier; once from 62 Bn, BSF to 92 Bn and then again from 92 Bn to 18Bn on the ground of his medical treatment. The petitioner again for 3rd time wanted to be posted in the incoming Bn to Kalyani in 100Bn for medical treatment and this time change of posting was not done (as pleaded in 1st paragraph of page 3 of the affidavit-in-opposition). The petitioner took leave from his unit up to 20.08.2001 after which he did not join and the disciplinary proceeding was initiated. 21. For setting aside the dismissal order the petitioner has relied upon the case reported in (Gouranga Chakrabroti Versus State of Tripura and another, (1989) 3 SCC 314 ) and specifically paragraph 27 thereof which is set out hereinbelow. 21. For setting aside the dismissal order the petitioner has relied upon the case reported in (Gouranga Chakrabroti Versus State of Tripura and another, (1989) 3 SCC 314 ) and specifically paragraph 27 thereof which is set out hereinbelow. "We have scrutinised the relevant provisions of the BSF Act as well as the BSF Rules framed thereunder and we have no hesitation to hold that the power under Section 11(2) of the Act empowering the Prescribed Authority i.e. the Commandant to dismiss or remove from service any person under his command other than an officer or a subordinate officer read with Rule 177 of the said Rules is an independent power which can be validity exercised by the Commandant as a Prescribed Officer and it has nothing to do with the power of the Security Force Court for dealing with the offences such as absence from duty without leave or overstaying leave granted to a member of the Force without sufficient cause and to award punishment for the same. The provision of sub- section 4 of Section 11 which enjoins that the exercise of the power under the aforesaid Section shall be subject to the provisions of the Act and the Rules does not signify that the power to dismiss a person from service by the Commandant for his absence from duty without leave without any reasonable cause or for overstaying leave without sufficient cause and holding him as undesirable cannot be exercised unless the Security Force Court has awarded punishment to that person in accordance with the procedure prescribed by law. The Prescribed Authority i.e. the Commandant is competent to exercise the power under Section 11(2) of the said Act and to dismiss any person under his command as prescribed under Rule 177 of the BSF Rules. It is also to be noticed in this connection that Rule 6 of the said Rules has specifically provided that in regard to matters not specifically provided in the Rules it shall be lawful for the Competent Authority to do such thing or take such action as may be just and proper in the circumstances of the case. It is also to be noticed in this connection that Rule 6 of the said Rules has specifically provided that in regard to matters not specifically provided in the Rules it shall be lawful for the Competent Authority to do such thing or take such action as may be just and proper in the circumstances of the case. In this case though no procedure has been prescribed by the Rules still the Commandant duly gave an opportunity to the appellant to submit his explanation against the proposed punishment for dismissal from service for his absence from duty without any leave and overstaying leave without sufficient cause. The appellant did not avail of this opportunity and he did not file any show cause to the said notice. Thus the principle of natural justice was not violated as has been rightly held by the High Court. No other point has been urged before us by the learned counsel appearing on behalf of the appellant." 22. This judgment has been shown by the petitioner in support of his contention that no second show-cause notice was issued to the petitioner. 23. This judgment as referred hereinabove does not support the contention that non-service of second show-cause notice is an illegality; on the contrary the Supreme Court referring to Rule 6 of the BSF Rules reiterate that it shall be lawful for the competent authority to do such thing or take such action as may be just and proper in the circumstances of the case. 24. In view of the factual situation as to posting of the petitioner from one Bn to another for staying in Kalyani, West Bengal and his going on leave when he could not avoid transfer shows that the competent authority has taken action against the petitioner which is proper in the circumstances of the case. In a disciplined force like BSF the petitioner's plan for preventing transfer should not be allowed to be successful time and again and I hold that the concerned authority has rightly taken the decision of dismissal from service. In my view if such strict action is not taken by the authority it will be difficult to maintain discipline of the force. The petitioner's posting in one place (Kalyani) for years together will definitely have a negative impact on the disciplined members of the force. In my view if such strict action is not taken by the authority it will be difficult to maintain discipline of the force. The petitioner's posting in one place (Kalyani) for years together will definitely have a negative impact on the disciplined members of the force. An employee who despite having knowledge and notice of disciplinary proceeding against him has avoided the proceeding cannot allege non-service of second show cause notice. Such contention is required to be rejected and is rejected. He has disentitled himself from getting second show cause notice. 25. The petitioner has relied upon another case reported in (Maan Singh -versus- Union of India, (2003) 3 SCC 464 ). The observation of the Supreme Court in Paragraph 11 thereof is as follows: "Relying on State of Punjab v. Ram Singh Ex-Constable arguments advanced before us is that it is only in cases where the misconduct is of the gravest kind an order of dismissal shall be made. This case was decided in the context of Rule 16.2(1) of the Punjab Police Manual, 1934, Vol. II. The said Rule reads as follows : "Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service, in making such an award regard shall be had to the length of service of the offender and his claim to pension." "After analysing the said provision, this Court in Ram Singh case held that Rule 16.2(1) consists of two parts, firstly, dismissal shall be awarded for the gravest acts of misconduct and secondly, cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service and the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The second part is referable to a misconduct which, by itself, may not warrant an order of dismissal and may be a ground to take a lenient view of giving an opportunity to reform and even after giving such opportunities, if the delinquent officer is proved to be incorrigible and found completely unfit to remain in service then in order to maintain discipline in the service appropriate punishments can be given. Therefore, when the charge against the appellants in each of these cases is habitual absence for long periods on several occasions unauthorisedly, the view taken by the disciplinary authority is justified." (Emphasis mine). 26. In view of the fact that the way the petitioner got posting on medical ground in different Bn before he went on leave and never joined his duty thereafter, I hold that the view taken by the disciplinary authority is justified as absenting unauthorisedly from duty for 475 days in a force like BSF is a major offence which makes him completely unfit to remain in service and the decision taken by the disciplinary authority in dismissing him from service is not improper or incorrect. (Emphasis mine). 27. The petitioner has been rightly dismissed from service of BSF. 28. For removal of any doubt it is clarified that the first application being W.P. No. 10430 as not required to be dealt with separately as the order of transfer culminated in dismissal subsequently, both the writ applications being W.P. No 10430 (W) of 2001 and W.P. 1297 (W) of 2003 have been dealt with together. After expiry of the interim order passed on 15.10.2001, which expired on 15.01.2002 there was no impediment for the BSF authority to proceed against the petitioner and to pass the order of dismissal as the limited period interim order passed in the first application in no way could create any impediment on the disciplinary proceeding and on the order of dismissal which is the subject matter of the Second writ application. 29. For the reasons as aforesaid both the writ applications are dismissed. No Costs.