Inder Singh vs Union of India and Others

Jaishree Thakur, J.—The challenge in the present writ petition under Article 226 of the Constitution of India is to order dated 19.5.1999 by which the services of the petitioner stand terminated from the Border Security Force.

The petitioner was working with Border Security Force and posted in Rajasthan in the year 1997. During that period, the petitioner fell ill and remained under treatment of Civil Hospital for a few days. After being declared fit by the Civil Hospital, he went back to report for duty but was not taken back. Thereafter, on 7.3.1998, the petitioner reported sick in the sick quarters of Boarder Security Force (for short ''BSF'') and was referred for surgery on 9.3.1998 to a Civil Hospital in Bikaner. He was kept under continuous treatment from 10.4.1998 upto 12.7.1998. After being treated by the Government Civil Hospital, the petitioner left to report to his unit but met with serious accident on way back and he was admitted to SMS Medical College and Hospital, Jaipur. After an operation was done to repair his fractured leg, he was discharged on 18.7.1998. He continued to remain under constant and continuous treatment of the SMS Medical College and Hospital till 20.3.1999 and was declared fit to resume duty on 27.3.1999. That during this period the petitioner was served a show cause notice on the 1.12.1999 by the respondent showing him absent from 25.7.1997. The petitioner was served with a fresh show cause notice on 21.1.1999, again showing that the petitioner was absent without leave from 25.7.1999, which was followed by another letter dated 28.1.1999 regarding non-receipt of medical documents. The respondent, thereafter, informed the petitioner about the receipt of medical documents pertaining to the period from 9.3.1998 to 5.4.1998, i.e. for a period of 28 days. In the same letter, the petitioner was informed that the respondent-authorities had not received any document pertaining to the leave period 7.3.1998 to 8.7.1998. In response to the said letter, the petitioner again submitted relevant documents. On the 27.3.1999 the petitioner was again informed about non-receipt of documents pertaining to a period 05.01.1999 to 10.03.1999. The petitioner wanted to report for the work on the same day but was refused entry at the main gate. Thereafter, the petitioner''s father accompanied him to the Unit on 7.4.1999 but both of them were turned back without allowing the petitioner to rejoin duty. A final show cause notice was issued to the petitioner on showing him absent without leave from 25.7.1997. The petitioner made a detailed reply that he had reported for duty on 27.3.1999 as well as on 7.4.1999 but to no avail. The petitioner was dismissed from service on 19.5.1999 under Section 11(2) of the BSF Act 1968 (the Act of 1968 for short) read with rule 22 and 177 of the BSF Rules 1969 (the Rules of 1969 for short). Aggrieved against the impugned order dated 19.5.1999 dismissing the petitioner from service, the present writ petition has been preferred.

Mr. K.K. Shah, counsel appearing for the petitioner has argued that the respondent never conducted any court of enquiry as contemplated under Section 62 of the BSF Act. The petitioner remained admitted in the hospital and was undergoing medical treatment so it can not be said that he remained absent from duty. He was recommended for surgery by the BSF doctors itself on 7.3.1998. After receipt of the initial show cause notice, the petitioner submitted all the relevant documents to the department pertaining to his sickness and without ascertaining genuineness of the said documents, he has been illegally shown as absent from duty from 25.7.1997. It is contended that the respondent did not follow the laid down policy for apprehending the petitioner when once he remained absent from duty for more than 30 days. The petitioner wanted to join duty and had reported to the Unit but was not allowed to do so and, as such, it cannot be held that he was absent from duty.

It is argued that without following the procedure as laid down under the Section 62 of the BSF Act and holding an enquiry, the termination order is bad. It is further argued that it was incumbent upon the authorities to verify for themselves about the genuineness of the medical documents supplied to him. Counsel for the petitioner has also relied upon a circular issued on 5.10.1998 which pertains to the procedure to be followed regarding termination of service of subordinate officers and other rank under Rule 22 of the Rules. The said circular has detailed the procedure to be followed while dealing with the case of absence without leave, which reads as under:-

"(j) If a member of the Force pleads sickness, in the first instance, he should be directed to send supporting medical documents and report to the nearest BSF Hospital M.I. Room or the nearest Govt. Hospital, as the case may be. The medical documents, if received, should be verified through the concerned Hospital/Medical Officer with reference to his ailment, treatment as out-door or indoor patient and physical condition to undertake journey from his place to the unit location.

It no response is received from the individual or if the medical documents on verification are found to be serous enough to incapacitate him from undertaking journey, he should be directed to report in the unit.

If he fails to comply with the orders, steps to apprehend him should be taken. It is clarified that in case of receipt of medical documents from the individual, action to terminate the services should not be taken without such documents having been verified."

Reliance has been placed on clause 3(j) of the said circular which states that on receipt of medical documents from delinquent, action to terminate his service should not be taken without getting the documents verified.

The respondents were called upon to file reply to the said writ petition wherein it has been contended that the petitioner was in habit of taking leave without sanction. Initially he had proceeded for 60 days earned leave with effect from 7.1.1997 to 7.3.1997 but failed to rejoin duty on 8.3.1997. He again remained absent without leave from the Unit lines and returned after being absent of 36 days on 16.7.1997. For this absence, he was put in the quarters guard for undergoing a period of rigorous imprisonment on 25.7.1997 but he again absented himself without leave from Unit on the same day, i.e., 25.7.1997. The petitioner was issued show cause notice to join duty but he failed to do so and an apprehension roll was also issued on several occasions to apprehend the petitioner. Some of the medical documents submitted for his treatment were not in order. It is submitted that each time a notice was issued to the petitioner. He was called upon to submit documents but he deliberately failed to do so and remained absent without leave. In fact, the petitioner remained absent without leave for a period of 659 days and thus, he was dismissed from service with effect from 19.5.1997 after observing all legal formalities and giving the petitioner an opportunity to defend himself. The petitioner obtained a false prescription for surgery from the BSF Hospital by not consulting doctors. It is denied that the petitioner ever reported with the Unit with an intention to join his duty. A court of inquiry was conducted and the petitioner was found guilty. The petitioner was dismissed under Section 11(2) of the BSF Act 1968 read with rule 22 and 177 of the BSF Rules 1969.

I have pursed the record of the case and have heard the counsel for the parties.

To substantiate his case, that the petitioner under went medical treatment has annexed several medical prescriptions on record. Medical slips annexed with this petition show that he took some treatment on 7/3/1998, 8/3/1998, 9/3/1998, 5/4/1998, 20/3/1998, 5/5/1998, 11/6/1998, all these treatment slips are out patient department slips and do not show that the petitioner was admitted in the hospital. Thereafter the petitioner met with a road accident and he was admitted at SMS Medical College and Hospital, Jaipur on 14.7.1998 for surgery and discharged on 18.7.1998. Further perusal of the discharge ticket placed on record as Annex. 9 shows that he was attending the hospital for regular follow up. On 27.3.1999 he was declared fit for light duty.

Counsel for the petitioner has contended that Section 62 of the BSF Act read with Rule 173 of the BSF Rules 1969 contemplate a court of inquiry to be held in case of absence from duty. Reliance has been placed upon a judgment reported as Manohar Lal Pareek vs. Union of India and others 2006 (3) CDR 2230 and to contend that if there is violation of Rule 173 of the Rules of 1969 then the dismissal order is unsustainable. As per the counsel for the petitioner no documents were supplied to the petitioner on the basis of which he was proposed to be dismissed. Further reliance has also been placed upon Major S.K. Chaudhry vs. Union of India reported as 1994 (4) 316 to contend that non-supply of documents will vitiate the dismissal order.

A perusal of the record shows that the petitioner has not been dismissed under Section 62 of the BSF Act i.e. on account of remaining absent from duty but on account of misconduct by invoking Section 11(2) of the BSF Act 1968 read with rule 22 and 177 of the BSF Rules 1969. A perusal of the show cause notice reads as:

"You have been absent without leave from 25/7/97. After considering the reports relating to your absence (copies enclosed), I am satisfied that your trial by a Security Force Court is impracticable, but am of the opinion that your further retention in service is undesirable. I, therefore, tentatively propose to dismiss you from the service. If you have anything to urge in your defence against the imposition of the proposed penalty, you may do so by 31st Dec. 97. In case no reply is received within the stipulated period, it would be presumed that you have no defence to put forward and ex-parte decision will be taken into the matter.

Encl: As above

Sd/- 1.12.97 (JAGIR SINGH SRAN) COMMANDANT 162 BN BSF"

This show cause notice was followed by other notices requiring the petitioner to submit documents as well as to join duty failing which action according to the rules were proposed to be taken.

Rule 22 of the BSF Rules 1969 applies to the dismissal or removal of person on account of misconduct.:

"22. Dismissal or removal of person other than officers on account of misconduct.- (1) When it is proposed to a 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 of showing cause.

(2) When after considering the reports on the misconduct 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 perusal of the said rule does not reveal that holding of an inquiry is a prerequisite to an order dismissing or removing a person from service on the ground of misconduct. All that is required under the said rule is that after considering the reports of misconduct, the competent authority is satisfied that the trial by the Security Force Court but is also of the opinion that further retention in service would be undesirable. The competent authority after considering the matter and defence is competent to pass an order of removal from service. The Hon''ble Supreme Court in Case of Gouranga Chakraborty Vs. State of Tripura and Another, has held as under:

"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 any reasonable cause or for overstaying leave without sufficient cause and holding them 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"

To substantiate plea that inquiry is not required to be held, counsel for the respondent has placed reliance upon the Division Bench judgment of this court in Union of India Vs. Umesh Kumar Malik DB Civil Appeal No. 1033/1997 where in similar case pertaining to a constable being absent from duty, the High Court held that if the proceedings are under Rule 22 of the Rules of 1969, inquiry under Section 62 was not required. Similarly in Ex Ct Sanjay Singh Vs. Union of India W.P. (C) 6123 of 1999 decided on 9.2.2012 the High Court at Delhi has held that power exercised by the commandant under Section 11(2) read with Rule 22 of the BSF rules 1969 has nothing to do with the power of the Security Force Court for dealing with offences such as absence from duty without leave. This has been reiterated in the case in Jitendra Nath Singh Vs. Union of India W.P. (C) 6123 of 2013 decided on 2.2.2015 by the High Court in Delhi.

In the present case, the petitioner was served with such a notice on 1.12.1997. The petitioner replied to the said show cause notice and also submitted his medical documents. The medical slips show that there are only a very few days that the petitioner is admitted into hospital as an indoor patient. Most of his treatment is as an out patient. It is also noted that the petitioner had been found fit to rejoin service on 27.3.1999 by the doctors, however, he failed to report on duty. A perusal of the medical reports indicate that the petitioner had undergone surgery on 16th of July 1998, but he was discharged from hospital on the 18th of July 1998 itself. He was being treated as an out patient thereafter. There is no reason borne out from the documents to show what precluded the petitioner from applying for leave. His medical condition was not so grave that he could not report back to duty. It is only when a show cause notice was issued to him that he responded by sending some medical documents which were not accepted on account of cutting on the dates. There is no reasonable explanation forthcoming from the petitioner about his absence from duty without sanction.

The argument that the documents were not supplied to the petitioner on the basis of which action was proposed to be taken against him is belied since the very first show cause notice issued mentions that "copies enclosed". If the petitioner had not received these copies, it became incumbent upon him to mention that he had not received any such report. The next argument that the medical prescription should have been verified by the authorities if found unsatisfactory and that there has been a violation of the circular issued is noted to be rejected. The circulars which are executive instructions are issued for guidance and to implement the scheme of the Act but do not have the force of law. They have been issued to ensure that rules of natural justice are not violated, which is not the case in hand.

Considering the facts and circumstances of this case. I am of the considered opinion that ratio of the aforesaid decisions of this Court as well as other High Court as also of the Supreme Court are squarely applicable to the facts and circumstances of this case as in the present case, also the independent power vested in the Commandant under Section 11(2) read with Rule 177 was exercised after issuing show cause notice to the petitioner in terms thereof. Documents supplied by the petitioner were duly considered and found unsatisfactory. Thus the rules of natural justice have been complied with. There being no violation of the Rules as alleged, the order of dismissal is upheld.

Resultantly, the above noted writ petition being devoid of merit is dismissed with no order as to costs.