Jeet Singh vs Union of India & Ors.

V.K. Jhanji, A.C.J.

In this petition challenge is to order dated 29th September, 1994 whereby Commandant, 77 BN, BSF, dismissed the petitioner from service

with effect from 19th September, 1994. The order reads as under :

No. Estt/AWL/COI/77/94/999610025

77 Battalion BSF

C/O 56 APO

Dated, the 29 Sept '94

To

Ho. 90004901

Jeet Singh

Vill. Kangwalacamp PC Bhagdhour

Tehsil Samba District Jammu.

Sub : Dismissal from service.

Whereas, I have gone through the case of absence without leave against you. You were given an opportunity to show cause vide this office letter

No. Estt/AWI/77/94/8702 dated 8.8.1994 and letter No. Estt/AWL/COI/77/94/9308 dated 26.8.1994, which you have not availed of. I am

satisfied that you are absent without leave without any reasonable cause and that your further retention in the service is undesirable. I, therefore,

dismiss you from service with effect from 19 Sept '94 (A).

Your absence period from 26.5.94 to 19.9.94 will be treated as `dies non'.

You have been struck off strength of this unit w.e.f. 19.9.94.

Sd/

(Y. Bannerjie)

Commandant

77 BN BSF

The order of dismissal is being challenged on the ground that the procedure provided under Rules 20, 21 and 177 of the Border Security Force

Rules, 1969 (hereinafter referred to as ""the BSF Rules"") was not followed. Against this, the submission of the learned counsel appearing on behalf

of the respondents is that for exercising power by the Commandant under section 11(2) of the BSF Act no enquiry is required to be held and it is

only on the basis of the show cause notice that the Commandant was empowered to terminate the services of the petitioner. The learned counsel

further contended that in this case two show cause notices were served on the petitioner, but the petitioner did not avail of the opportunity and did

not file reply to these two show cause notices. Therefore, no enquiry was required to be held in the circumstances of this case. In support of his

contention, learned counsel appearing on behalf of the respondents has cited the judgment of the Supreme Court in Union of India v. Ram Phal,

1996(2) SCT 638 (SC) : AIR 1996 SC 1500.

I have carefully gone through the record of this case as also the judgment cited by the learned counsel.

In Union of India v. Ram Phal (supra) the contention raised by the learned counsel appearing on behalf of the respondents, that no enquiry is

required to be held or is envisaged under section 11(2) of the BSF Act, was rejected by the lordships of the Supreme Court. Reference in this

regard was made to Rules 20 and 21 of the BSF Rules providing for termination of services for misconduct and also appointment of an enquiry

officer and the procedure to be followed by him. In the said case their lordships of the Supreme Court upheld the order of dismissal, though

enquiry was not held, on the ground that the delinquent was called upon to show cause within seven days, as required under the rules, but the

delinquent did not reply to the notice. Since there was no denial of the allegations and request to hold enquiry, it was held that it as not incumbent

upon the Director General to appoint an enquiry officer to conduct an enquiry in the manner prescribed by Rule 21. However, in the present case,

from a reading of order dated 29th September, 1994, I find that there is a reference to two show cause notices dated 8th August, 1994 and 26th

August, 1994 which are stated to have been served upon the petitioner to which the petitioner did not reply. Respondents have not enclosed copy

of the show cause notice dated 8th August, 1994 with their reply, but the copy of notice dated 26th August, 1994 has been enclosed with the

supplementary affidavit and on reading of the same, I find that the same was not a show cause notice, but it was a communication to the petitioner

in respect of his application dated 22.8.1994 to report to the BN Headquarters within 15 days on receipt of the letter, failing which he would be

dismissed from service. The letter dated 26th August, 1994 under no circumstances can be said to be a show cause notice calling upon the

petitioner to show cause why he should not be dismissed from service for proceeding on leave without sanction. In such a situation the procedure

under Rules 20, 21 and 22 of the B.S.F. Rules was required to be followed.

Rule 20 of the Rules provides that if the prescribed authority comes to the conclusion that on account of misconduct further retention of a

member of the Force in service is undesirable, the person concerned is to be apprised of the charges upon which it is proposed to take action

against him in regard to dismissal or removal from service or reduction in rank. Rule further makes it mandatory for the prescribed authority to

furnish particulars of allegations and the report of the investigation in cases where allegations have been investigated alongwith the statement of

witnesses, if any, recorded and the copies of the documents, if any, intended to be used against him. In case it is not in public interest to disclose

the evidence or documents, the prescribed authority is entitled to withhold the copies of such evidence or documents, but in that case it has to

record reasons for withholding such documents or evidence. It is only thereafter that the person concerned has to submit reply within the time

specified. Failure to submit an explanation entitles the Authority to proceed exparte against the person concerned. In case the person concerned

expressed wish to cross examine any witness or to produce the witnesses in defence, the authority is to appoint an Enquiry Officer who shall be an

Officer superior to the person against whom it is proposed to take action and the Enquiry Officer, after following the procedure laid down in Rule

21 and on conclusion of the enquiry, is to transmit its finding alongwith the evidence recorded, to the authority under whom the person whose

conduct is under enquiry is serving at the time of alleged misconduct. On receipt of the report of the Enquiry Officer, the authority is to go through

the allegations against the person intended to be dismissed or removed from service, his evidence and the proceedings of enquiry, if any, and in

case, on consideration of the same, it finds that the allegations are proved, it may dismiss or remove such person from service.

In the present case the petitioner was a Constable and so under Rule 177 of the Rules read with Section 11(2) of the B.S.F. Act, he could be

removed by the Commandant from service only after the procedure under Rules 20 and 21 had been followed. Since in this case the procedure as

provided under the rules was not followed, the impugned order cannot be sustained. Consequently, the impugned order of dismissal is quashed.

Respondents are directed to reinstate the petitioner in service. Petitioner shall also be entitled to all the consequential benefits, including monetary

benefits. Respondents, however, shall be entitled to hold enquiry against the petitioner in accordance with the procedure provided under the B.S.F.

Act and the rules, if they so choose.