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Judgment
Heard Mr. R. Dhar, learned counsel appearing for and on behalf of the petitioner as well as Mr. K. Paul, learned CGC appearing for and on
behalf of the respondents.
The brief fact of the petitioner''s case in a nutshell is that:
The petitioner has been dismissed from service by an Order dated 13.09.2014 by the BSF authority in a summarily trial held at Bn
HQ, Mawpat. The petitioner being aggrieved approached this Hon''ble High Court in W.P. (C) No. 177/2015. The Hon''ble High
Court while disposing the W.P. (C) No. 177/2015 by order dated 19.04.2016 has directed the petitioner to file an appeal before the
BSF authority under Section 117 (2) of BSF Act, 1968 read with Rule 167 (2) of BSF Rules, 1969 and further directed the BSF
authority to examine the grievances of the petitioner on its merit and to ignore the time spent by the petitioner in filing the appropriate
appeal before the BSF authorities and in prosecution of the W.P. (C) No. 177/2016. The petitioner has complied with the order
passed by this Hon''ble Court and filed an appeal before the appellate authority on 02.05.2016 with a prayer before the authority to
set aside the impugned order 19.04.16 and to reinstate him into service with all consequential benefits admissible under law.
That the BSF appellate authority, the Director General BSF has by an impugned order dated 05.07.2016 communicated to the
petitioner informing him that taking the view that the petitioner is just 34 years old with 14 years, 03 months and 02 days of service in
BSF with two (2) cash rewards and one (1) appreciation card of commandant, the DG, BSF has been pleased to commute the
sentence of ""Dismissal from service"" to suffer rigorous imprisonment for 89 days in force custody and to forfeit 02 years of service for
the purpose of promotion. This Hon''ble High Court granted liberty upon the petitioner by order dated 19.04.16 in case of grievances
arising after the order of the competent authority, the petitioner shall be free to take recourse to the appropriate remedy in
accordance with law.
Hence, the Writ Petition.
The learned counsel for the petitioner submits that the petitioner was serving in the BSF and he has a good service record, but as he was
admitted in NEIGRIHMS, Shillong due to his ill health, he could not attend his duty for 4(four) days, as a result the BSF authority in a summarily
trial dismissed him from service vide order 13.09.2014. Thereafter, the petitioner made an appeal before the Director General, BSF. The Director
General, BSF after examining all the records of the petitioner is of the view that he was just 34 years old with 14 years, 03 months and 02 days of
service and passed an order stating that the petitioner''s service record shows that he has received 2(two) cash rewards and 1(one) appreciation
card of commandant and was pleased to commute the sentence of dismissal from service and to suffer rigorous imprisonment for 89 days in force
custody and to forfeit 02 years of service for the purpose of promotion.
The learned counsel for the petitioner also contended that the petitioner was dedicated to his service and for mere absence of 4(four) days to
dismiss him from service, suffer rigorous imprisonment for 89 days in force custody and to forfeit 02 years of his service for the purpose of
promotion is not at all proportionate. He also contended that the petitioner has not committed any offence and to support his submission, he relied
on the judgment passed by the Hon''ble Supreme Court in the case of Krushnakant B. Parmar v. Union of India (UOI) and Anr: (2012) 3 SCC
178 in Civil Appeal No. 2106 of 2012 (Arising out of SLP (C) No. 15381 of 2006).
In reply to the submission advanced by the learned counsel for the petitioner, the learned CGC submits that the petitioner filed three false
accusations, which ended with F/R and that he remained absent from duty for 4(four) days without permission. The learned CGC further submits
that, earlier also since the petitioner was absent from duty for some time, he had already face the punishment. So, the petition may be dismissed
and necessary order may be passed.
After hearing the submissions advanced by the learned counsel for the parties, I have perused the charges mentioned in Annexure-D Page 14 of
the writ petition which is reproduced herein below for ready reference:
OFFICE OF THE COMMANDANT 19 BN BSF, MAWPAT, SHILLONG (MEGHALAYA)
No. Estt-I/SSFC-Trial/PhadSD/19Bn/2014/10425-30 Dated,the 13th Sept''2014
O R D E R
Whereas, a Summary Security Force Court held at HQr 19 Bn BSF, Mawpat, Shillong (Meghalaya) with effect from 11th Sept''
2014 to 13th Sept'' 2014 for trial of the accused No. 001140314 Constable Phad S D of ''E'' Coy of 19 Bn BSF for committing
offences as mentioned below:-
BSF ACT MAKING A FALSE ACCUSATION AGAINST A PERSON SUBJECT TO BSF ACT KNOWING SUCH
1968 ACCUSATION TO BE FALSE.
SECTION In that he, at Bn HQ on 9th May'' 2014 stated that ""No. 012541281 SI Manish Kumar & other pers of BOP Hangaria
34 (a) were involved in smuggling"" well knowing the said statement to be false.
AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE.
BSF ACT
In that he, at Bn HQ Mawpat Shillong on intervening night of 30/31 May'' 2014 made complaint/ allegations regarding
1968,
Sexual Harassment (sodomy) with him by unknown colleagues, while he was under ''Record of Evidence'' in connection
SECTION-
with disciplinary case pending against him with reference to this office Order No. 6124-28 dated 27th May'' 2014.
40
Whereas, on Court of Inquiry, same allegations found incorrect.
BSF ACT
ABSENTING HIMSELF WITHOUT LEAVE. In that he, at Bn HQ Mawpat on 28.05.2014 absented himself
1968
without leave from 1030 hrs to 1230 hrs, while he was under ''Record of Evidence'' in connection with disciplinary case
SECTION-
pending against him with reference to this office Order No. 6124-28 dated 27th May'' 2014.
19 (a)
BSF ACT
ABSENTING HIMSELF WITHOUT LEAVE In that he, At Bn HQ Mawpat on 31.05.2014 absented Himself
1968,
without leave from 1200 hrs to 1600 hrs, while he was under ''Record of Evidence'' in connection with disciplinary case
SECTION-
pending against him with reference to this office Order No. 6124-28 dated 27th May'' 2014.
19 (a)
No. 001140314 Constable Phad S D of ''E'' Coy of 19 Bn BSF was convicted for offences under Section 34 (a), under Section -
40 and under Section - 19 (a).
And whereas the said Summary Security Force Court on 13th Sept'' 2014 (Afternoon) has passed the sentence as under:-
TO BE DISMISSED FROM SERVICE.
The sentence has been promulgated to the accused on the same day i.e. 13th Sept'' 2014 (Afternoon).
Sd/-
(P S BHATTI)
COMMANDANT
19 Bn BSF.
I have also perused the order dated 5th July, 2016 which is at Annexure-J Page 49 Para 5 of the writ petition, wherein I have noticed that:
As on 13.09.2014, the date of conviction, the petitioner was 34 years and 15 days old with 14 years, 03 months and 02 days of
service in BSF. In past he was punished summarily once u/s 19(a) of BSF Act. He earned 02 cash rewards and 01 appreciation card
of Commandant.
On further perusal of the discharge summary issued by the North Eastern Indira Gandhi Regional Institute of Health & Medical Sciences,
Shillong, annexed as Annexure-2 at Page 38 of the Additional affidavit filed on behalf of the petitioner, it is amply clear that the petitioner was
admitted in the said hospital on 31.05.2014 and the date of discharge was 04.06.2014.
After perusal of the documents as quoted above, I am of the considered view that the punishment imposed by the BSF authority at the first
instance was not at all proportionate and against the principle of natural justice. I am also unable to accept that a case ended in F/R means the
accusation is false. There are many cases, though FIR has been filed, but the Police or Investigating Agency failed to collect the evidence and send
the case in F/R, which cannot be a ground to take such a drastic step. Lastly, I am also of the view that absence from duty due to some compelling
reasons cannot be treated as unauthorized absence.
The Hon''ble Supreme Court in the case of Krushnakant B. Parmar v. Union of India (Supra) has observed as under:
Case Note:
Service - Dismissal - Validity Thereof - Rule 3(1)(ii) and 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964 - Appellant
challenged order or punishment and Appellate order before Central Administrative Tribunal which was dismissed by order and
judgment and affirmed by Gujarat High Court - Held, absence from duty without any application or prior permission may amount to
unauthorized absence, but it did not always mean wilful and there were different eventualities due to which an employee was to
abstain from duty including compelling circumstances beyond his control like illness, accident, hospitalization, etc, but in such case
employee could not be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant and in a
Departmental proceeding, if allegation of unauthorized absence from duty was made, disciplinary authority was required to prove that
absence was wilful, in absence of such finding, absence could not amount to misconduct - Disciplinary authority failed to prove that,
absence from duty was wilful, no such finding has been given by Inquiry Officer or Appellate Authority - Though, Appellant have
taken a specific defense that he was prevented from attending duty by disciplinary authority who prevented him to sign attendance
register and also brought on record in support of his defense that he was prevented to sign attendance register, but such defense and
evidence were ignored and on basis of irrelevant facts and surmises Inquiry Officer held Appellant guilty - Thus, ignoring all these
facts and dismissing Appellant was held to arbitrary and uncalled for - Appeal allowed.
Similarly, in this case also, absence from duty for 4(four) days with effect from 31.05.2014 to 04.06.2014 cannot be treated as unauthorized
absence as the petitioner was unwell and admitted in hospital. Besides that, it is an admitted fact from the order dated 05.07.2016 that the
petitioner received 2(two) cash rewards and 1(one) appreciation card of commandant, which shows that he is a dedicated soldier.
After scanning the record placed before me and considering the facts and circumstances of the case and taking into consideration the principle
of natural justice and equity as well as the reasons discussed above, I am of the conclusive view that the punishment awarded against the petitioner
was not in accordance with law, principle of natural justice and equity. Hence, the order dated 13.09.2014 at Annexure-D and order dated
05.07.2016 at Annexure-J of the writ petition are hereby set aside. The BSF authority is directed to reinstate the petitioner immediately with all the
service benefits and not to disturb his promotion in future.
With this observation and direction the instant writ petition is allowed and stands disposed of.