Dinesh Singh vs Union Of India And Ors

This petition filed under Article 226 of the Constitution of India takes exception to the order dated 28.5.2005 whereby the respondents have struck off

the name of petitioner form the strength of Unit w.e.f. 28.5.2005.

(2) Briefly stated, facts narrated by the petitioner are that petitioner was sanctioned leave from 6.7.2004 to 4.9.2004. During this leave, he suffered a

jaundice attack because of which he has undergone treatment in Swaroop Rani Nehru Medical College Hospital, Allahabad. The medical fitness

certificate dated 27.7.2005 Annexure P-3 is relied upon to contend that petitioner was under treatment from 2.9.2004 to 27.7.2005. Thereafter his

daughter, Jagriti Singh suffered from typhoid because of which she has undergone treatment from 29.7.2005 to 10.9.2005. The medical certificate

dated 10.9.2005 is filed as Annexure P-4.

(3) Learned Senior Counsel submits that petitioner received the show cause notice dated 25.4.2005 but because of his own ailment and the ailment of

his daughter, could not respond to it. The petitioner received impugned order dated 28.5.2005 whereby his services are terminated by the department.

(4) Learned counsel for the petitioner placed reliance on Section 11 and Section 62 of the Border Security Force Act, 1968 (for short, the BSF Act).

In addition, reliance is placed on Rule 22(2) and Rule 173 (8) of Border Security Force Rules. On the strength of these rules, it is submitted that a

conjoint reading of said provisions makes it clear that the impugned order could not have been passed without following the principles of natural

justice. The respondents have passed the impugned order without conducting the trial or the enquiry. In the facts and circumstances of the case, it

cannot be said that the enquiry was either inexpedient or impracticable. The reliance is placed on the judgment of Delhi High Court reported in (1997)

42 DRJ (DB) 623 Sudesh Kumar Vs. Union of India. It is urged that in similar factual matrix, Division Bench disapproved the impugned order therein

and directed reinstatement with all consequential benefits.

(5) Per contra, Smt. Gaharwar, learned counsel for the respondent placed heavy reliance on the return and the documents filed therewith. She submits

that the relevant sections and rules on which reliance is placed by the petitioner were followed. The notices were issued to the petitioner on every

stage. He did not respond to any notice. The medical certificates were obtained subsequently which are only certificates and not documents about the

actual treatment received by the petitioner. She submits that in the present case, the enquiry in accordance with law was conducted and hence the

judgment of Delhi High Court in the case of Sudesh Kumar (supra) has no application. She placed reliance on judgment reported in (1996) 7 SCC 546

Union of India & Ors. Vs. Ram Phal and urged that the petitioner remained unauthorisedly absent for a long time and the member of a disciplined

force cannot remain unauthorisedly absent on his sweet will. In view of petitioner’s misconduct which is duly established in the enquiry, no fault

can be found in the impugned order. She produced the original record of the enquiry for the perusal of this Court.

(6) No other point is pressed by counsel for the parties.

(7) I have heard counsel for the parties at length and perused the record.

(8) As noticed, learned senior counsel for the petitioner placed reliance on Section 11, Rule 22 & Rule 173(8). The question regarding applicability of

these rules is no more res integra. The Apex Court way back in 1989 (3) SCC 314, [Gouranga Chakraborty vs. State of Tripura and another],

considered the impact and scope of Sections 11(2), (4), 19, 48, 49 & 141. The Apex Court also considered Rules 6 & 171. The relevant portion reads

as under:

“25. A procedure has been provided by BSF Rules for trial of the offences by the Security Force Court and for awarding of punishment. The order

of dismissal of the appellant from service was assailed mainly on the ground that it was not made in accordance with the provisions of the Act and the

Rules framed thereunder inasmuch as there was no trial by the Security Force Court nor any order of punishment was awarded by the Security Force

Court as required under the provisions of the Act. Section 11(2) of the Act empowers the Commandant who is the Prescribed Officer to dismiss or

remove from service any person under his command other than an officer or a subordinate officer of such rank or ranks subject to the provisions of

the said Act and the Rules. It has been urged that unless and until the offence of absence without leave or overstaying leave granted to a member of

the Service, without sufficient cause is tried by the Security Force Court and punishment is awarded therefor as provided in Section 48 and Section 50

of the said Act, the impugned order of dismissal from service by the Commandant for absence without leave and for overstaying leave without

sufficient cause, is illegal and as such it is liable to be quashed and set aside. It has been further submitted that the power of the Commandant as a

Prescribed Officer under Section 11(2) is subject to sub-section (4) of Section 11 i.e. the exercise of this power is subject to the provisions of the Act

and the Rules, that is, the Commandant is not competent to dismiss the appellant from service unless the Security Force Court has tried the appellant

and awarded punishment in accordance with the procedure prescribed by the Act and the Rules framed thereunder. The power of the Commandant

to order a member of the Force other than an officer or subordinate officer from service as provided under the Act read with Rule 177 of the Rules is

subject to the limitation that unless the Security Force Court passes an order of conviction and sentence on the delinquent member of the Force

following the procedure prescribed, such an order cannot be made and enforced. It has, therefore, been submitted that the impugned judgment

rendered by the High Court which held that the power under Section 11(2) read with Rule 177 of the said Rules was an independent power conferred

on the Prescribed Authority i.e. the Commandant, is not in accordance with law and as such the same requires to be set aside.

It has, however, been urged on behalf of the State that the power conferred on the Commandant as Prescribed Authority under Section 11(2) to

dismiss any person under his command from the service read with Rule 177 of the said Rules is an independent power as held by the High Court and

as such the impugned order of dismissal from service of the appellant passed by the respondent is not at all arbitrary or illegal.

We have scrutinised 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 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 no procedure has 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.

In the premises aforesaid, we do not find any merit in this appeal which is accordingly dismissed without costs. The judgment and decree of the

High Court in SA No. 22 of 1981 is confirmed.â€​

[Emphasis Supplied]

(9) A bare perusal of this judgment leaves no room for any doubt that the power under Section 11(2) is relating to dismissal or removal of a person

which is an independent power which can be exercised by Commandant, as prescribed Officer, and exercising of power under Section 11(2) is totally

different then the exercise of power by Security Force Court for dealing with the offence of absence from duty without leave or over-staying leave

without sufficient cause.

(10) The pivotal question in this case is whether the respondents have erred in passing order dated 28.03.2005. Mr. Mrigendra Singh, learned senior

counsel placed heavy reliance on the judgment of Sudesh Kumar (supra). It is apposite to quote the relevant para of this judgment, which reads as

under:

“9. There is no manner of doubt that independent and separate power conferred by Section 11(2) of the Act read with Rule 22 of the BSF Rules

can be exercised in dismissing a member of the Force after complying with necessary requirements of serving a show cause notice informing the

person concerned of the reports, which are adverse to him and calling upon him to submit in writing his defence and such power does not depend upon

awarding of punishment by Security Force Court. It is the cumulative ratio of the three decisions of the Supreme Court aforementioned. In Ram Pal's

case (supra), legal position has been amplified by the Supreme Court that an order of dismissal by way of discharge, not by way of penalty for

misconduct of absence from duty without leave, though such an absence may be the cause and might have been referred to in the show cause notice,

as also in the order of dismissal, can be passed on the ground that his conduct had rendered his retention in service undesirable. But, in case the order

of dismissal is passed by way of penalty or misconduct of absence from duty without leave, power under Section 11(2) cannot be exercised since the

same has to be done only on complying with the relevant provisions of the Act and on proof of misconduct of absence from duty without leave after

holding due inquiry. Order of dismissal in the exercise of independent and separate power conferred under Section 11 (2) of the Act can be passed by

serving a show cause notice and on coming to a conclusion that conduct of an individual had rendered his retention in service undesirable.â€​

[Emphasis Supplied]

(11) A minute reading of this para makes it clear that the Division Bench laid emphasis that power under Section 11(2) of the Act and Rule 22 of the

Rules are different. In case order of dismissal is passed as a measure of punishment for misconduct of absence, power under Section 11(2) cannot be

exercised because proof of misconduct of absence needs to be established by holding due inquiry. In the light of this principle, if present case is

examined, it will be clear that on 25.04.2005 a notice was give to the petitioner which reads as under:

“To

No.88001097 HC Dinesh Kumar Singh

S/O Late Shri Lakhan Singh

Vill â€" Bilohi, PO- Sahpur

Distt â€" Rewa (MP)

Sub :- SHOW CAUSE NOTICE

Based on the reports available, it is noted that you have been illegally/without sufficient cause absenting without leave w.e.f. 05.09.2004 (FN). The

proceedings of the Court of Inquiry held in accordance with Sec 62 of the BSF Act to investigate into the said illegal absence has also found and

declared that you have been illegally/without sufficient cause absenting without leave w.e.f. 05.09.2004 (FN) despite having been given ample

opportunities vide our letter No.Estt/OSL/20Bn/2005/1901-05 dated 17.02.2005 and letter No.Estt/OSL/20Bn/2005/2959-63 dated 11 Mar 2005.

Having considered the matter of your said continued illegal absence from duty, I am satisfied that your trial by a Security Force Court is not only

inexpedient but also impracticable and that your further retention in the service is undesirable. According, in the exercise of the powers vested in me

by Sub Sec (2) of Sec 11 of the BSF Act read with Rule 177 of the BSF Rules and in conformity with Sub-Rule (2) of Rule 22 of the BSF Rules, you

are hereby called upon to show cause as to why you should not be dismissed from the service for your aforesaid act.

If you have anything to urge in your defence against the proposed dismissal from the service, you may do so within 30 days of the receipt of this

notice failing which it will be assumed that you have nothing to urge in your defence against the proposed action and further decision in this matter will

be taken.

A copy of the Court of Inquiry already forwarded to you vide our show cause notice L/No.Estt/1038/20Bn/2004/332 dated 08 Jan’ 2005.

Please acknowledge receipt of this show cause notice.

Sd/-

(RAJEEV SINHA) 2IC

COMMANDANT

20 BN BSFâ€​

[Emphasis Supplied]

(12) As per this notice itself, it is clear that the proceedings of Court of inquiry was held regarding alleged illegal absence of the petitioner and a

finding is arrived at. Sufficient opportunities were granted to the petitioner thereafter a notice to show cause was given to the petitioner. In Clause 4 of

this notice, it is mentioned that the petitioner was afforded with the report of inquiry officer alongwith earlier show cause notice dated 08.01.2005. The

petitioner did not file response to the earlier show cause notice dated 08.01.2005 or notice dated 25.04.2005. Alongwith the reply, the respondents

have filed a notice dated 09.09.2004 (Annexure-R/1), whereby the petitioner was directed to resume his duties, failing which disciplinary action will be

taken against him. It is followed by another letter dated 17.02.2005 (Annexure-R/2), whereby Superintendent of Police, Rewa was requested by the

department to apprehend the petitioner. Thereafter, another letter of same nature was written to Superintendent of Police on 11.03.2005. The

petitioner was put to notice on 08.01.2005 by speed post acknowledging the copy of inquiry report. This is followed by subsequent notice dated

25.04.2005 (Annexure-R/5). The original record of the Court of inquiry is also placed for the perusal of the Court. The record shows that an inquiry

was conducted, six witnesses were examined and inquiry officer gave his finding that charges are found to be proved. Thus, the present case is not a

case where petitioner is dismissed from service as a measure of punishment without holding any inquiry. Thus, the judgment of Sudesh Kumar (supra)

is of no assistance to the petitioner.

(13) The petitioner was admittedly a member of disciplined force. If petitioner was suffering from any aliment or for any other compelling reason was

unable to attend the duty, it was incumbent upon him to promptly inform the department with relevant documents and seek extension of leave. A

member of discipline force cannot absent himself on frivolous pleas, having regard to the nature of duties enjoyed on the said force. Such indiscipline,

if it goes unpunished, will greatly affect the discipline of the force. In such forces desertion is a serious matter (See: 2005 (13) SCC 709, [Union of

India vs. Datta Linga Toshatwad]).

(14) The Delhi High Court in 2015 (1) HCC Delhi 31, [Jitendra Nath Singh vs Union of India] considered the judgment of Supreme Court in the case

of Ram Phal (supra) and opined that in case where show cause notice is issued and concerned person had responded the show cause notice and

denied the allegations leveled against him, it is incumbent to conduct an inquiry. In the instant case, the show cause notice was never replied by the

petitioner yet respondents have conducted an inquiry and found charges to be proved. At the cost of repetition, in my considered view mere production

of medical/fitness certificates (Annexure-P/3 & P/4) before this Court will not condone the misconduct of absence against the petitioner.

(15) As analyzed above, the decision of respondents is in consonance with Rule 22(2) of the BSF Rules. The respondents have followed the principles

of natural justice. There is no procedural impropriety in the decision making process. In 1999 (1) SCC 759, [Apparel Export Promotion Council vs. AK

Chopra]; 2007 (7) SCC 236, [Bank of India and others vs. T. Jogram] & 2009 (8) SCC 310, [State of Uttar Pradesh and another vs. Man Mohan

Nath Sinha and another], the Apex Court poignantly held that scope of judicial review in cases of department inquiry is limited. The decision making

process is subject matter of judicial review and not the decision. The decision making process adopted by the respondents in the instant case is in

accordance with law. The punishment order cannot be said to be disproportionate/harsh in nature. It cannot be said that a fly is killed by using a

sledgehammer. Thus, no case is made out for interference by this Court. Petition sans substance and is hereby dismissed.