Jitendra Chandra Nath @ Jiten Nath vs Union of India (UOI)

This writ Appeal is directed against the order dated 2.11.1995 passed Civil Rule No. 2539/95 by a learned Single Judge of this Court whereby the above civil rule was dismissed.

Facts of the case in brief are that - the Writ Appellant-Petitioner was a Constable in the Border Security Force hereinafter referred as ''the BSF''. On 16.4.1991 the writ Appellant was sent on duty to Morigaon but he did not report and he was found absent without permisson. Thereafter, a Court of Enquiry was held as provided u/s 62 of the Border Security Force Act, 1968, for short ''the Act''. In spite of issuance of notice to him the Petitioner did not appear before the Court of Inquiry. The Court of Inquiry after examining the witnesses and records held that the Appellant has remained absent without any intimation and as such he is deemed be a deserter. He was therefore dismissed from service. The Petitioner feeling aggrieved, approached this Court challenging the order of dismissal and the learned Single Judge rejected the prayer of the Petitioner-Appellant and dismissed the writ.

In this case, there is no dispute at the Bar that the Appellant remained absent form duty since 17.4.1991 to till the order of dismissal. The Appellant claims that during these period he was suffering from Tuberculosis and undergoing treatment at Mangaldoi and he sent information to this effect to the authority concerned. The Petitioner has also filed some copies of medical certificates but there is absolutely no material on record to show that any information whatsoever was sent by the Appellant to the authority concerned. So far as the Medical Certificates are concerned, which are annexed as Annexure-2 to Annexure-10 of the Writ petition, we find that all these certificates are dated 6.4.1993 and in Annexure-8 and 9 it is stated that the Appellant was under treatment since 23.4.1993. Learned Counsel for the Appellant has fairly submitted that the Appellant was not an indoor patient.

Before the learned Single Judge it is submitted that the order of dismissal was not passed by a competent authority and there is violation of Section 11(2) of the Act. The provision of Section 11(2) is to be read with the corresponding Rules and Rule 177, provides that a Commandant is competent to dismiss a Constable. The law stands well settled in the case of Gouranga Chakrabarty v. State of Tripura 1984 (3) SCC 314. As regards the question whether the power u/s 11(2) of the Act could be exercised without holding an enquiry, the learned Single Judge has held that the Court of Inquiry was in fact held as provided u/s 62 of the Act and the proceedings of the Court of Inquiry were placed before the learned Single Judge. The said proceeding has also been made available to us during the course of hearing.

The learned Counsel for the Respondent Union of India has submitted that a show cause notice was issued to the Appellant but in later preferred to remain silent and refused to respond to the show cause notice. The show cause notice reads as follows:

REGISTERED WITH AD No. Estt/JCN/193 Bn/92/6028 Tac HQ 193 Bn BSF C/o 56 A P 0 16 Nov�92.

To No. 81922015 CT Jitendra Chandra Nath Vill: Nawgaon Post: Aulachowka. Via: Mangal Dai

Dist: Darrang (ASSAM)

Subject: SHOW CAUSE NOTICE

You have absented without leave with effect from 17.04.1991 (FN). I am of the opinion that because of the absence without leave for such a long period, your further retention in service is undesirable. I therefore, tentatively propose to terminate your service by way of dismissal. If you have anything to urge in your defence or against the proposed action, you may so before 18th December 1992.

In case no reply is received by the date, it will be inferred that you have no defence to put forward.

Sd/- M.K. Sarkar Commandant 193 BN BSF 16 Nov''92.

Learned Counsel for the Union of India further submits that the facts and circumstances of the present case are more or less identical to the facts and circumstances of the case reported in Union of India and others Vs. Ram Pal, wherein the Supreme Court held that service of show cause notice satisfied the requirements of the Rule 20 and the dismissal order is passed thereafter is in accordance with law.

Learned Counsel for the Appellant, on the other hand, submits that no show cause notice was served on the Appellant. Rule 20(1) and 20(2) of the Border Security Force Rules, 1969 reads as follows:

Termination of service for misconduct:- (1) where in the opinion of the Director General a person subject to the Act has conducted himself in such manner, whether or not such conduct amounts to an offence as would render his retention in service undesirable and his trail by Security Force Court inexpedient, the Director General may inform the person concerned accordingly.

(2) The Director General shall further inform the person concerned that it is proposed to terminate his services either by way of dismissal or removal.

As stated above, the show cause notice was sent by registered post. During the course of enquiry the witnesses were examined and out of that witnesses one has stated that n show cause notice was sent, by registered post at the home address of the Appellant but the Appellant did not turn up, Section 27 of the General Clauses Act reads as follows:

Meaning of service by post. - Where any (Central Act) or Regulation made after the commencement of this Act authorises or requires any document to be served by post, where the expression ''serve'' or either of the expression ''give'' or ''send'' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

The requirement under Rule 20(1) and (2) was to inform the Petitioner and as such sending of the show cause notice under registered post with A/D was sufficient compliance. Further the address given in the letter was a proper address and as such u/s 27 of the General Clauses Act, the service is deemed to be effected. We find no force in the submission that no notice was served. On the contrary, it is well settled that the show cause notice was duly served on the Appellant.

If the Appellant was dismissed from service on the ground of desertion and also in view of undesirability of retaining him in service, there is no infirmity in the order of dismissal and the order passed by the learned Single Judge needs no interference. The appeal has no merits and the same is accordingly dismissed. No order as to costs.