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2019 DIGILAW 480 (JK)

Sunil Kumar v. Union of India

2019-11-02

TASHI RABSTAN

body2019
JUDGMENT : 1. Through the medium of this petition, the petitioner is seeking to quash Order No.Estt/71Bn/SSFC/2001/4543-64 dated 05.05.2001 issued by Commandant, 71 Battalion, BSF, respondent No.3 herein, whereby he was dismissed from service with effect from 05.05.2001.The petitioner is also seeking a direction to the respondents to reinstate him from the said date. 2. The facts, as projected in the petition, are that the petitioner was appointed as a Constable on 28.05.1990 in 71 Bn. BSF. It is averred that in the year 2000 his wife fell seriously ill and he proceeded on leave with effect from 06.06.2000 to 04.08.2000, which was extended upto 03.10.2000. Since during this period the wife of petitioner did not recover, as such he applied for extension of leave, however, the same was not granted and the petitioner was recorded as absent with effect from 04.10.2000 to 04.02.2001. Since the wife of petitioner was not well and there was none at home to look after her, the petitioner reported for duty accompanied by his wife on 05.02.2001. It is averred that he was allowed to resume his duties. It is averred that on 09.02.2001 the wife of petitioner again became serious, the petitioner took her to the concerned doctor in the BSF, since her condition did not improve, the petitioner took her to Civil Hospital on 10.02.2001, from where she was referred to specialized hospital at Gandhi Dham in Gujarat. Thereafter, the petitioner shifted her to Government Medical College, Jammu. When the wife of petitioner recovered from illness, the petitioner again reported for duty at Gandhi Dham in Gujarat on 15.04.2001. He, however, was arrested and respondent No.3 ordered for convening of Summary Security Force Court. The petitioner was tried and the Summary Security Force Court pronounced the sentence of dismissing the petitioner from service and the order of dismissal was received by the petitioner through registered post at Jammu in June, 2001. It is averred that feeling aggrieved the petitioner filed an appeal before Director General of Police, BSF, respondent No.2 herein, however, the same too came to be dismissed vide order dated 12.08.2002. Hence, the present petition. 3. Learned counsel appearing for petitioner argued that the petitioner was not given free and fair trial nor properly recorded his guilt as mandated in terms of Rules 63, 134, 142, 143, 144, 145, 157 and 166 of BSF Rules, 1969. Hence, the present petition. 3. Learned counsel appearing for petitioner argued that the petitioner was not given free and fair trial nor properly recorded his guilt as mandated in terms of Rules 63, 134, 142, 143, 144, 145, 157 and 166 of BSF Rules, 1969. He further argued that since respondent No.3 had taken the decision to try and prosecute the petitioner, as such he was legally debarred from presiding over the Court. He also argued that the punishment awarded is also not proportionate to the offence, if at all committed by the petitioner. 4. Objections have been filed on behalf of respondents averring therein that earlier also the petitioner absented without leave for 43 days with effect from 18.01.1992 to 29.02.1992; 189 days with effect from 20.05.1992 to 31.08.1992 and 23.10.1992 to 15.01.1993, and 61 days with effect from 08.02.1999 to 09.04.1999. In the year 2000, the petitioner was granted 60 days earned leave with effect from 06.06.2000 to 04.08.2000, which was extended for 30 days with effect from 05.08.2000 to 03.09.2000 and again for 30 days with effect from 04.09.2000 to 03.10.2000. It is averred that he was required to resume his duty on 04.10.2000 forenoon, but the petitioner did not join duty even on expiry of extended period of leave. When the unauthorized period of petitioner crossed 30 days, a Court of Inquiry was instituted under Section 62 of the BSF Act, 1968 and an Apprehension Roll was also issued to him on 25.12.2000. However, he voluntarily reported at the Battalion on 05.02.2001 forenoon after over staying leave by 124 days. Again within five days only, the petitioner deserted the unit without leave/permission. Accordingly, an FIR to this effect was lodged with Officer Commanding, PS. Gandhidham on 12.02.2001, a copy whereof was endorsed to SHO Police Station, Jammu. Three registered letters dated 22.02.2001, 03.03.2001 and 16.03.2001 were also sent at the home address of petitioner. However, the petitioner did not respond. When the absence period of petitioner again crossed over 30 days, a Court of Inquiry was instituted under Section 62 of BSF Act, 1968. In the meanwhile, the petitioner again voluntarily reported on 15.04.2001 forenoon after remaining on unauthorized leave of 65 days. Thereafter, the petitioner was heard under Rule 45 of BSF Rules, 1969 and thereafter the Commandant ordered for ROE. In the meanwhile, the petitioner again voluntarily reported on 15.04.2001 forenoon after remaining on unauthorized leave of 65 days. Thereafter, the petitioner was heard under Rule 45 of BSF Rules, 1969 and thereafter the Commandant ordered for ROE. After completion of ROE, the petitioner was tried by Summary Security Force Court, which awarded the sentence of dismissal from service. The appeal filed by the petitioner too was rejected by the Director General, Border Security Force. 5. I have heard learned counsel appearing for the parties, considered their rival contentions and also perused the record produced by the learned counsel for respondents. 6. Petitioner, in the present case, was working in a disciplined force, Border Security Force. His services, thus, were regulated and governed by the Border Security Force Act, 1968 and Rules made thereunder. Section 11 of the BSF Act provides: “11. Dismissal, removal or 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.” 7. On the date of dismissal of petitioner from service, the procedure for exercise of power under Section 11(2) of the BSF Act, 1968 was laid down in Rule 22 of BSF Rules, 1969, which reads as under: “22. (4) The exercise of any power under this section shall be subject to the provisions of this Act and the rules.” 7. On the date of dismissal of petitioner from service, the procedure for exercise of power under Section 11(2) of the BSF Act, 1968 was laid down in Rule 22 of BSF Rules, 1969, which reads as under: “22. Dismissal or removal of persons other than officers 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 persons 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 Subedar. (4) All cases of dismissal or removal under this rule, shall be reported to the Director-General.” 8. Rule 22 of BSF Rules, 1969 noted above as well as provisions under the BSF Act envisage conduct of enquiry for exercise of power under Section 11(2) of BSF Act, 1968. (4) All cases of dismissal or removal under this rule, shall be reported to the Director-General.” 8. Rule 22 of BSF Rules, 1969 noted above as well as provisions under the BSF Act envisage conduct of enquiry for exercise of power under Section 11(2) of BSF Act, 1968. In the present case, the reports with respect to the misconduct of petitioner were considered by the competent authorities and after deriving satisfaction therefrom the dismissal order and also order rejecting petitioner’s statutory petition came to be passed. The respondents, while issuing the impugned order, have taken care of all aspects of the matter. The record reveals that in terms of the BSF Act and the Rules framed thereunder, the statement of prosecution witnesses were recorded in the presence of petitioner, even the statement of petitioner was also recorded. Thereafter, the Summary Security Force Court was convened in which the petitioner pleaded guilty. The proceedings of Summary Security Force Court were also forwarded to the Deputy Inspector General of BSF in terms of Rule 160, who also recorded his satisfaction regarding the sentence awarded to the petitioner herein in terms of Rule 161 of BSF Rules. The petitioner was afforded opportunity, which he availed by submitting the statutory petition. Since before passing of dismissal order the respondents followed the procedure as was required in terms of BSF Act, now questioning the inquiry on the basis of reports with reference to misconduct cannot be assailed in writ petition, particularly when the petitioner himself pleaded guilty during the proceedings of Summary Security Force Court. Therefore, I do not find any merit in the writ petition. Moreover, this Court in exercise of powers under Article 226 of the Constitution of India, cannot look into the subjective satisfaction arrived at by the Director General, BSF, in terms of provisions of the BSF Act and Rules made thereunder, while passing the order on the statutory petition and sit as an appellate authority over the order passed in the statutory petition. 9. Viewed thus, this writ petition is dismissed. Registry to return the record to learned counsel for the respondents against proper receipt.