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2022 DIGILAW 1053 (RAJ)

Birendra Singh v. Union Of India

2022-04-01

SAMEER JAIN

body2022
JUDGMENT Sameer Jain, J. - Instant writ petition has been filed by the petitioner assailing the action of the respondents of dismissing him from service and praying for direction to the respondents to allow the petitioner to resume duty without any interruption till the date of superannuation alongwith all consequential benefits in the form of promotion, seniority with arrears of pay and interest. 2. as per petitioner, he was enrolled in Border Security Force as Constable (GD) on 11/04/1987 and after completion of basic training at 25th Bn. BSF, he joined in 3rd Bn. BSF on 22/04/1988 and was further posted to 94th Bn. BSF on 20/11/1992. 3. The contention of the petitioner is that in terms of Section 19 of the BSF act, 1968, if for the sake of arguments, it is assumed that the petitioner was absent from duty without leave and without explanation, then also at the maximum three years' punishment can be imposed. Further, in terms of Section 62 of the act of 1968, enquiry has to be conducted for imposing penalty which in the case of the petitioner has not been conducted and the petitioner straightway has been dismissed from service. 4. Per-contra, learned counsel for the respondents submitted that as per preamble of BSF act, 1968, the act has been constituted and regulated for ensuring the security of Borders of India and for matters connected therewith. Despite being member of uniformed and disciplined force, the petitioner was found to be an undisciplined soldier and habitual of misrepresenting as well as committing various offences. It is further contended that the petitioner was awarded as many as seven punishments under Sections 19 and 40 of the BSF act from time to time for the various offences committed by him within a short span i.e. from 1991 to 15/04/1999 the details of which have been pointed out in Para II of the reply to writ petition. The absence of leave by the petitioner from time to time was duly admitted by him and he has undergone punishment in the form of imprisonment. Learned counsel for the petitioner has drawn attention of this Court towards Section 11(2) of the BSF act, 1968 which provides as under:- "11. Dismissal, removal or reduction by the Director General and by other officers. - (1) ...... Learned counsel for the petitioner has drawn attention of this Court towards Section 11(2) of the BSF act, 1968 which provides as under:- "11. Dismissal, removal or reduction by the Director General and by other officers. - (1) ...... (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 as may be prescribed." 5. It is thus submitted by learned counsel for the respondents that as per the said provision, if the competent authority for the justifiable reasons feels appropriate, the offender can be given appropriate punishment which may lead to his dismissal. In this regard, he relied upon judgment of Supreme Court in Sri Gouranga Chakraborty Vs. State of Tripura: aIR 1989 (SC) 1321 , more particularly Para 24 which provides as under:- "24. We have scrutinized 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 validly 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. In this case though" any procedure has not 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." 6. On perusal of records of the writ petition, consideration of the submissions advanced by respective counsels as well as the judgments cited at bar, this Court is of the view that the BSF act, 1968 is a special legislation enacted with the aim and object to ensure security of borders of India and for matters connected thereto. The act mandates discipline and good order qua its employees and different punishments are specified under Sections 11, 19, 40 etc. for violation of different statutory provisions and in different terms and proportionality. 7. On analyzing the nature of misconduct, indiscipline and offences committed by the petitioner on different occasions i.e. on 26/09/1991, 11/07/1992, 19/09/1994, 23/09/1996, 30/12/1997, 07/01/1998 and 15/04/1999 under Sections 19 and 40 of the BSF act, 1968, which was never opposed or objected by the petitioner, this Court is of the view that the action of the respondents in dismissing the petitioner from service under Section 11(2) of the BSF act, 1968 was fully justified because it was not only on single occasion that indiscipline and offence under Sections 11 and 40 was committed but it was committed on more than seven occasions. The punishment was also undergone by the petitioner and never assailed. Therefore, the argument of enquiry under Section 62 of the BSF act, 1968 and proportionality as well as maximum punishment for three years only becomes meaningless. The competent authority under Section 11(2) of the act of 1968, while passing the order impugned, has duly considered the record of past conduct of the petitioner and has found the petitioner as unfit for future duties looking to the past conduct. The said view is also supported by judgment of the apex Court in Sri Gouranga Chakraborty (supra). 8. It is also noted in the reply that the authenticity of the medical certificate produced by the petitioner qua his treatment for the disease of Manic Depressive Psychosis (Bipolar Type Mental Disorder) for the period from 20/04/1999 to 15/10/2003 is also under suspicion, yet for a moment, if it is assumed that the said certificate is valid, then also, taking into consideration the fact that the petitioner is a habitual offender and is in the habit of false accusations and misrepresentations and is in the organization where national security is to be maintained, this Court is of the view that the dismissal of the petitioner from service under Section 11(2) of the BSF act, 1968 is justified, otherwise the aim and object of maintaining discipline in the force will be disrupted. 9. In the light of above, this Court does not find any merit in the instant writ petition and the same is accordingly dismissed. all pending applications stand disposed of in above terms.