Devendra Singh vs Union of India & Ors.

The petitioner stood dismissed from service by virtue of order dated 2842001. This order of dismissal has been called in question by the

petitioner in this writ petition. Brief facts of the case are that; the petitioner was appointed as constable in the BSF on 1611996. He remained

absent from duty from 14102000 to 412001. The reason for the absence of the petitioner was that his wife had undergone an operation and

remained hospitalized for the period the petitioner remained absent from duty. The notices were issued to the petitioner to resume duty on

10112000, 20112000 and 30112000. After the petitioner reported for duty, an offence report was prepared on 1912001. Recording of evidence

was ordered by the authorities against the petitioner on 2012001. Prior to the recording of ROE, the petitioner was heard on the charges on

1912001. On 1942001, charge sheet was served on the petitioner under section 19(a) and 40 of the BSF Act. Following charges were framed

against the petitioner :

Charge 1

BSF Act Absenting himself without leave.

Sec 19(a) in that he, at Bn.HQ on 14102000, Enroute to D Coy for attending Drill Cadre absented himself without leave w.e.f.0900 hrs till

412001 (AN) when he voluntarily reported at Bn.HQ Samba. Total period of absence is 83 days i.e w.e.f. 14102000 to 412001(AN)

ChargeII

BSF Act An Act prejudicial to Good Order and

Sec.40 Discipline of the Force In that he at Bn HQ 153 Bn BSF on 14tu October 2000 at about 0900 hrs, Abandoned his personal weapon 7.62

SLR Butt No.1ll along with 03 Magazines and 50 rounds in vehicle No. PCR4405( Tata 1 = Ton) while Absenting without leave from the said

date.

On 1942001, the Commandant ordered the trial of the petitioner by the Summary Security Force Court. On 2842001 Summary Security Force

Court was constituted, which was presided over by the Commandant. The petitioner is reported to have pleaded guilty to the charges, as a result

of which he was dismissed from service.

The petitioner has challenged the order of dismissal on the following grounds:

a) that no Court of Enquiry has been conducted in terms of Rule 170 of the BSF Rules.

b) that the copy of the proceedings of the enquiry has not been communicated to the petitioner.

c) that Rule49 of the BSF Rules have not been complied with, which requires the respondents to prepare an abstract of evidence and evidence be

given to the person concerned.

On the other hand, case of the respondents is :

a) that the Court of Enquiry was ordered on 18112000.

b) that the proceedings have been conducted against the petitioner strictly in conformity with the BSF Act and Rules. There is no deviation in

observing the rules. The record of the case has also been produced by the respondents.

I have heard the learned counsel for the parties and perused the record.

The petitioner admittedly has remained absent from duty w.e.f. 14102000 to 412001. He was informed by the respondents to report for duty

on 10112000,20112000 and 30112000. Having failed to report for duty after the expiry of 30 days, Court of Enquiry as contemplated by section

62 of the BSF Act was ordered to be initiated against the petitioner. While perusing the record, nothing emerges that Court of Enquiry was

ordered by the respondents. There is bald assertion made by the respondents that Court of Enquiry was ordered on 18ll2000.lt is stated by the

respondents that the said Court of Enquiry was conducted in absence of petitioner, as he has failed to report for duty. The stand of the

respondents seems to contradict their own stand. If the Court of Enquiry was ordered on 18112000, then there was no requirement of issuing

fresh notice on 30112000, asking the petitioner to report for duty. This fact has not been disputed by the respondents that the notice was issued on

30112000 also. That be the fact, the stand of the respondents that one man Court of Enquiry was ordered on 18112000, does not seem to be

correct. The record also does not reveal any such enquiry having been ever ordered.

Assuming that petitioner did not resume his duty despite the notices issued to him on 10112000,20112000 and 30112000, the respondents

were well within their right to hold Court of Enquiry after this period, but it is not the case set out by the respondents. After the petitioner had

joined the duty on 412001, nothing precluded the respondents from serving him proceedings of the Court of Enquiry. The respondents did not

serve the petitioner the record of proceedings of Court of Enquiry. It was only on 1912001 that an offence report was prepared. Petitioners

positive case is that no Court of Enquiry has been conducted in the present case. Before the offence report under section 19(A) of the BSF Act is

prepared, it is necessary that an enquiry as envisaged under section 62 of the said Act has to be conducted before the person is to be declared

deserter under the said Act. That Court of Enquiry is required for the purpose of ascertaining the reasons for officials absence. The official may

have some reasons to remain absent, which can only be ascertained by holding a Court of Enquiry before declaring him as deserter. In the present

case, petitioner had submitted medical report regarding the illness of his wife. Since no opportunity has been given to the petitioner on this count, it

cannot safely be said that subsequent enquiry proceedings initiated against the petitioner are in conformity with the BSF Act and Rules.

It is only after the petitioner has been declared deserter, the offence report is prepared and ROE is recorded. So, holding of Court of Enquiry is

mandatory before a person is declared deserted under section 62 of the BSF Act.

It is no longer res integra that nonobservance of procedure, violates the right of the petitioner under Article 14 of the Constitution.

I, therefore, hold that no Court of Enquiry in the present case has been conducted, as the same is not reflected in the record produced by the

respondents. The petitioner has not been supplied copy of the enquiry proceedings.

I accordingly set aside the order of dismissal of the petitioner passed on 2842001. Respondents are directed to reinstate the petitioner. In case

the respondents desire to hold enquiry against the petitioner, they may hold such enquiry.

Petition is accordingly allowed.