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2019 DIGILAW 518 (JK)

Shaheedu v. Union of India

2019-12-31

TASHI RABSTAN

body2019
JUDGMENT : 1. Through the medium of this writ petition, the petitioner is seeking to quash Order No.1077/Estt/Disc/99/100003 dated 09.09.1999 issued by Commandant, 102 Bn., BSF, respondent No.5 herein, whereby the petitioner came to be dismissed from service with effect from 08.09.1999. Petitioner is also seeking to quash Order No.6/136/2002/BSF/CLO(D&L)/7541-45 dated 23.09.2002 issued by Deputy Inspector General, BSF, respondent No.4 herein, whereby the statutory petition of petitioner came to be rejected being devoid of merit. 2. The facts in short, as averred in the writ petition, are that the petitioner was appointed as Constable on 29.12.1993 and after training posted in 102 Bn., BSF. It is averred that there was no male member in his family and on 06.06.1999 when he was posted in a border area, he received information about the illness of his wife and the petitioner informed the Commandant on telephone. Further, it is averred that after recovering from illness, he rejoined the Unit on 20.06.1999. However, on 14.07.1999 he was placed under suspension and a charge sheet under Section 16(d) and 19(a) of BSF Act, 1968 was served upon him on 06.09.1999. Thereafter, vide order dated 06.09.1999 he was placed under open arrest with immediate effect. It is averred that the respondents without following the provisions of BSF Act and the Rules framed there under issued Order No.1077/Estt/Disc/99/100003 dated 09.09.1999, whereby the petitioner came to be dismissed from service with effect from 08.09.1999. Further, it is averred that feeling aggrieved the petitioner filed an appeal before the Deputy Inspector General, BSF, however, the same too came to be rejected vide Order No.6/136/2002/BSF/CLO(D&L)/7541-45 dated 23.09.2002 being devoid of merit. 3. Learned counsel appearing for petitioner argued that the petitioner was not given free and fair trial and the respondents without following the BSF Act and the Rules dismissed the petitioner from service. She further 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 19 days in November 1995; 41 days in August 1998 and 05 days in April 1998. She further 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 19 days in November 1995; 41 days in August 1998 and 05 days in April 1998. It is averred that on 06.06.1999 when the petitioner was deployed at Nikowal forward post on active duty, he deserted himself from the piquet without any orders from his superior officer and reported voluntarily on 20.06.1999 after absenting himself for 15 days. Accordingly, the petitioner was heard on offence report on 21.06.1999 and remanded to prepare Record of Evidence against him. However, he again deserted the Unit on 03.07.1999 and voluntarily reported on 11.07.1999 after remaining on absent without leave for 09 days. Again, he was put on offence report before the Commandant on 13.07.1999 and after hearing he was again remanded to prepare Record of Evidence for his second offence under Section 19(a) of the BSF Act, 1968. It is averred that after completion of Record of Evidence a prima facie case was established against the petitioner. On 08.09.1999 the petitioner was tried by Summary Security Force Court and after having been found guilty of both the charges, the petitioner was ordered to be dismissed from service after following due procure as mandated by BSF Act and the Rules framed thereunder. 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, i.e., 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. (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. The procedure for exercise of power under Section 11(2) of the BSF Act, 1968 has been 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. (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. 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. A perusal of the record reveals that the respondents before issuing the order impugned had complied with all the rules, which they were required to following while proceeding against the petitioner. The record further reveals that the statement of prosecution witnesses were recorded in 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. Not only this, the record further reveals that although the petitioner was afforded opportunities to cross examine the witnesses but he declined to do so. Therefore, I do not find any merit in the writ petition. Not only this, the record further reveals that although the petitioner was afforded opportunities to cross examine the witnesses but he declined to do so. 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 Deputy Inspector 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 along with connected miscellaneous petition(s), if any. Registry to return the record to the learned counsel for respondents against proper receipt.