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2024 DIGILAW 35 (JK)

Shaziya, Widow of Aziz Ahmed v. Union of India

2024-02-01

JAVED IQBAL WANI

body2024
ORDER : 1. The petitioner- Aziz Ahmed (Now dead) and substituted by his wife, namely, Shaziya (present petitioner) invoked the extraordinary writ jurisdiction of this Court enshrined under Article 226 of the Constitution of India, for quashment of order of dismissal of his services being No.Estt/Disc/Dismissed/1148/2002/2240-490 dated 19.04.2002 (for short “the order impugned”) issued by the respondent No. 5 herein for a further relief to issue direction to the respondents to reinstate the petitioner and also to treat his period of absence from duty as on duty and release his salary with all consequential benefits to which he is entitled thereto. 2. The facts under the cover of which the instant petition came to be filed and as are stated in the petition are that the petitioner came to be appointed as Washer-man in the Border Security Force (for short “BSF”) on 18.03.1989 under No. 891414696 and after undergoing training at STC Jodhpur, the petitioner came to be posed in 141 Bn. at Jodhpur whereafter the petitioner came to be posed in STC BSF, Jodhpur and subsequently transferred to 194 Bn. and lastly was posted in the then State of Jammu & Kashmir, and while serving the BSF efficiently and honestly earned various rewards. 3. It is next stated that the petitioner came to be granted 60 days leave with effect from 05.09.2001 to 03.11.2001 on account of the illness of his mother and while availing said leave, the petitioner suffered mental disorder and had to remain under the treatment of a Psychiatrist and after recovering from the said ailment upon being certified by a doctor in terms of a certificate dated 15.03.2003, certifying therein the petitioner to be mentally fit to resume the duties, the petitioner came to know that a show cause notice had been issued by the respondent 5 herein bearing No.Estt/THQ/194/2002/1089-91 dated 19.02.2002, stating therein that he is of the opinion that because of absence of the petitioner without leave, his retention in the force is undesirable and thus tentatively proposed to terminate the services of the petitioner and that though on account of his ailment, the brother of the petitioner had informed his unit about his ailment, respondent No. 5 yet issued the notice dated 19.02.2002 and that even the respondent No. 5 herein came to be informed about the ailment of the petitioner by his brother after the issuance of a notice dated 19.02.2002. 4. It is next stated that after recovering from his ailment, the petitioner approached the unit for resuming his duties on 18.03.2003, however, was not permitted to enter the unit and came to be informed that he stands dismissed from the services. 5. It is being further stated that the petitioner was never served with order of termination except the proposed termination notice dated 19.02.2002. 6. It is being next stated that the petitioner had been dismissed by the respondents from the service without conducting any inquiry under the provisions of the Border Security Force Act, 1968 (for short “the Act of 1968”) and the Border Security Force Rules, 1969 (for short “the Rules of 1969”). 7. Objections to the petition have been filed by the respondents wherein the petition is being opposed inter-alia on the premise that the petitioner has mis-stated and mis-represented the facts and that admittedly the petitioner was working as a Washer-man in the BSF having been appointed on 18.03.1989 and after completion of his training came to be posted in 141 Bn. and lastly deployed in Srinagar on internal security duty while working in the said battalion and that the petitioner had been habitual in overstaying the leave granted to him previously as well though the said overstaying of leave had been later on regularized. 8. It is being further stated that the petitioner initially came to be granted 60 days earned leave on 05.09.2001 for his sister’s marriage with a direction to report back to duty on 04.11.2001, in which he failed and infact overstayed with effect from 05.11.2001 without any sufficient cause necessitating sending of letter dated 18.11.2001 to the petitioner at his address given by him in his leave application calling upon him to resume his duties to which he neither replied nor reported back to duty and instead on 21.11.2001, submitted an application seeking therein discharge from service owing to compelling domestic problems which application upon being received by the Tac HQ 194 Bn. came to be replied on 23.11.2001, again calling upon him to resume the duties and that his discharge can only be considered thereafter and that the petitioner did not submit any response to the said letter and also failed to resume his duties which resulted into issuance of yet another letter to the petitioner dated 06.12.2001, requiring him to resume his duties. 9. 9. It is being next stated that on account of his failure to resume his duties after, a Court of Inquiry under Section 62 of the Act of 1968 was ordered vide No. Estt/194/Bn/COI/2001/1552-55 dated 19.12.2001 and an apprehension roll as well was issued to the Superintendent of Police, Gwalior (M.P.) for arrest of the petitioner vide letter No. Estt/194/Bn Disc/01/7925-26 dated 22.12.2001, wherein no response came to be received from the police authorities and that after the holding of Court of Inquiry it came to be established that the petitioner overstayed the leave without any sufficient cause and also did not respond to the show cause notice issued to him at his home address resulting into issuance of tentative proposal for termination of services of the petitioner in terms of show cause notice sent to the petitioner, to which he did not respond to and after waiting for a considerable period of time the respondent 5 herein in exercise of powers under section 11(2) of the Act of 1968 read with the Rules 22 & 177 of the Rules of 1969 dismissed the petitioner from service vide Order No.Estt/Disc/Dismissed/1148/2002/2240-490 dated 19.04.2002 and that the same came to be sent to the petitioner through registered-post on his permanent address mentioned in his service record. 10. The petitioner has also filed a rejoinder affidavit in response to the counter/reply filed by the respondents, wherein the facts pleaded in the petition have been reiterated and it has been re-stated that the respondents did not follow the provisions of the Act of 1968 and the Rules of 1969 and that the respondents dismissed the petitioner from service in utter disregard to the provisions of the Act of 1968 and the Rules of 1969. Heard learned counsel for the parties and perused the record. 11. Before proceeding to address to the issues raised in the instant petition, it would be appropriate and advantageous to refer hereunder Section 11 of the Act of 1968 and Rule 177 of the Rules of 1969 being relevant and germane herein:- “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. 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 as may be prescribed. (3) Any such officer as is mentioned in subsection (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.” A bare perusal of the aforesaid provisions of Section 11 of the Act of 1968 postulates that the Director-General/Inspector General, and a prescribed officer can dismiss or remove from the service any officer under his command other than an officer or a subordinate officer, though subject to the provisions of the Act of 1968 and the Rules of 1969. “Rule 177 - Prescribed Officer under Section 11(2):- The Commandant may, under sub-section (2) of section 11, dismiss or remove from the service any person under his command other than a officer or a subordinate officer.” What emanates from above rule is that a prescribed officer as mentioned in Sub-section (2) of Section 11 supra brings within its ambit a commandant as well authorizing him to dismiss or remove from service any person under his command other than an officer or a subordinate officer. 12. Perusal of the record reveals that the respondent 5 herein sent through registered-post show cause notice dated 19.02.2002 to the petitioner stating therein that the petitioner is absent without leave with effect from 05.11.2001 and that he is of the opinion owing to such absence without leave for such a long period, the retention of the petitioner in service is undesirable and proposed to terminate the services of the petitioner by way of dismissal while requiring the petitioner to respond to the notice by or before 18.03.2002. The said notice is stated to have been responded to by the petitioner through his brother, stating therein that he has been suffering from mental illness and is not fit to resume duties which response is denied to have been received by the respondents and consequently the respondent 5 issued the impugned order of dismissal dated 19.04.2002. 13. The said order of dismissal being the core issue in the instant petition, as such, requires to be extracted, reproduced and referred hereunder:- “OFFICE OF THE COMMANDANT 194 BN BSF C/O 56 APO //ORDER// I have personally gone through the case of absence without leave of No. 89141696 W/M Aziz Ahmed ‘E’ Coy of this Unit. He was given an opportunity to show cause vide registered letter No. Estt/THQ/194/2002/1089-91 dated 19.02.2002 which he was not availed of. I am satisfied that he is absent without leave w.e.f. 05.11.2001 (F/N) without any reasonable cause and his further retention in service is undesirable. I, therefore, in exercise of the powers vested in me vide Section 11(2) of BSF Act 1968 read with Rule 177 of BSF Rules 1969, dismiss him from service w.e.f. 19.04.202 (A/N) without any pensionary/financial benefits. His unauthorized period of absence from 05.11.2001 (A/N) to 19.02.2002 (A/N) will be treated as ‘Dies Non.’ 2. The individual is struck of strength of this Unit w.e.f. 19.04.2002 (A/N). 3. An amount of Rs. 1320.71 (Rs. One thousand three hundred twenty and seventy paise) only on account of cost of deficient items of clothing/kit may be recovered from amount due to individual i.e. Rs. 8933/- i..e ( Rs. 7833/- pay and allowances plus 1000/- and advance plus 100/- of Rum security) and Balance amount be remitted to the individual concerned. No.:Estt/Disc/Dismissed/1148/2002/2240-490 Dated: 19.04.2002 Sd/- Commandant 194 B.S.F., C/o 56 A.P.O.” A bare perusal of the order of dismissal supra tends to show that the respondent 5 has admittedly invoked the provisions of Section 11(2) of the Act of 1968 read with Rule 177 of the Rules of 1969 directing dismissal of the petitioner from service owing to his being absent without leave with effect from 05.11.2001 without any reasonable cause while opining that the retention of the petitioner in service is undesirable. A closer examination of the impugned order supra, however, do not anywhere reveal or suggest that a Court of Inquiry was either constituted and proceedings therein conducted or concluded against the petitioner owing to his unauthorized absence. Instead, the impugned order ex-facie suggests that the same is solely based on the satisfaction claimed to have been drawn by the respondent 5 alone on the basis of the show cause notice dated 19.02.2002 issued by him against the petitioner. Thus, the contention of the respondents that the petitioner came to be dismissed from service after holding of a Court of Inquiry and that thereafter the dismissal of the petitioner came to be ordered by the respondent 5 under Section 11 Sub-Section (2) of the Act of 1968 is grossly misconceived and factually incorrect. 14. Record also tends to show that the respondents while dismissing the petitioner from service even have shown complete departure from the Rules of 1969 applicable to the case of the petitioner, in that, in the matter of termination of service Chapter (IV) of the Rules of 1969 has to be followed, wherein while Rule 20 of the said rules provides for termination of service of officers by the Central Government on account of misconduct, Rule 21 of the said rules provides for termination of service of officers by the Central Government on ground other than misconduct and Rule 22 provides for dismissal or removal of person other than officer on account of misconduct and the said Rule 22 being relevant and germane to the controversy also needs a reference hereunder:- “Rule 22 - Dismissal or removal of persons other than officers on account of mis-conduct. (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 or showing cause. (2) When after considering the reports on the mis-conduct 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 the Director General.” A plain reading of the Rule supra and the facts and circumstances of the case coupled with the examination of the record manifestly demonstrate that the respondents have observed the Rule in complete breach. 15. Viewed thus, what has been observed and considered hereinabove, the impugned dated 19.04.2002 is found to have been issued against the petitioner in breach and violation of provisions of the Act of 1968 and the Rules of 1969. Resultantly, the petition succeeds and consequently the impugned order of dismissal No.Estt/Disc/Dismissed/1148/2002/2240-490 dated 19.04.2002 is quashed and the respondents are directed to treat the petitioner to have been in service notwithstanding the passing of impugned order of dismissal and to extend him all service benefits to which he would be entitled thereto. It is significant to note here that on account of the death of the petitioner, the present petitioner being a wife of the deceased petitioner having been substituted as petitioner in the petition, shall be entitled to all the aforesaid service benefits. 16. Record produced by appearing counsel for the respondents is returned back in the open court. Disposed of accordingly.