Union of India vs Sunil Kumar Singh

Tashi Rabstan, J.â€"This Letters Patent Appeal is directed against the judgment dated 06.07.2001 passed by the learned Single Judge in SWP

No. 1731/1998 whereby the learned Single Judge while setting aside the order of dismissal of the writ petitioner from service, has directed the

appellant-Union of India to reinstate the writ petitioner. Briefly stated, the relevant facts of this case are that the writ petitioner was enrolled as a

Constable in the Border Security Force on 6th March 1989. He proceeded on casual leave for 15 days with effect from 13th December, 1997

and was to report on duty on 31st December, 1997. After expiry of the leave period when he did not report for duty, he was asked to join the

duty vide registered letter dated 05.01.1998. Instead of reporting back, the writ petitioner sent a telegram seeking extension of 12 days leave

which was rejected by the competent authority. Again he was asked to report for duty vide registered latter dated 05.01.1998 followed by letters

dated 11.01.1998 and 21.01.1998, but the writ petitioner failed to do so. A Court of Inquiry was ordered on 01.02.1998 to enquire into the

circumstances under which the writ petitioner absented from leave. Thereafter, vide communication dated 04.02.1998 apprehension roll was

issued to the concerned Superintendent of Police to contact the writ petitioner and direct him to report to his Unit. The Court of Inquiry found that

the writ petitioner had absented himself from duty and he was recommended to be declared as a deserter Thereafter too, when the writ petitioner

did not report for duty, a Show Cause Notice dated 20.03.1998 was issued asking him to show cause within 30 days as to why his services be

not terminated under the provisions of the BSF Act and Rules. Even then no reply was received from the writ petition. Compelled by the

Circumstances, Commandant 117 Bn. vide communication dated 20.04.1998 requested the Commandant 96 Bn. BSF to contact the writ

petitioner and direct him to report to his Unit. On 24.04.1998 a telegram was received from the father of writ petitioner intimating that his son was

very serious and would report to the Unit after treatment. On receiving the telegram, vide communication dated 30.04.1998 the writ petitioner was

directed to submit the medical documents regarding his illness. However, he neither submitted the medical documents nor reported himself for duty

till 01.08.1998, when the competent authority after considering all the merits of the case dismissed him from service with effect from 31.07.1998

(AN) under Rule 177 of BSF Rules, 1969.

Aggrieved by the same, the writ petitioner challenged the order of his dismissal before the learned Writ Court by the medium of SWP No.

1731/1998 on the ground that the competent authority without conducting any inquiry as required under Section 62 of the BSF Act and without

following the procedure as required under Rules 170 to 176 of BSF Rules has wrongly and illegally dismissed him from service. The stand taken

by the writ petitioner before the Writ Court was that he was suffering from abdomen disease and was advised by the Doctor to take complete rest

for the period 03.01.1998 to 31.08.1998. His further stand was that he was continuously intimating his Unit through telegrams regarding extension

of his leave, therefore, the order of dismissal from service is disproportionate to the misconduct, if any.

Learned Single Judge while relying on sub-rule (1) of Rule 22 of BSF Rules regarding affording of an opportunity to show cause before

dismissing or removing the person from service observed that in the present case it was not apparent as to why it was not expedient or reasonably

practicable to give the writ petitioner an opportunity of showing cause. Learned Single Judge further observed that the decision to dispense with an

inquiry was not to be rested solely on the ipse dixit of the concerned authority; rather there should be sufficient material in existence before such a

power is invoked under Article 311(2) of the Constitution of India and Section 126 of the Constitution of Jammu & Kashmir. Learned Single

Judge while mentioning Section 19 of the BSF Act also observed that in the event a person, governed by the Act, remains absent from duty; he

can at the most be convicted and sentenced to imprisonment which may extend to three years. With these observations the learned Single Judge

while allowing the writ petition set aside the dismissal order of writ petitioner with a direction to the competent authority to reinstate him. Hence the

present appeal by the appellant-Union of India.

Mr. Ajay Sharma, learned counsel appearing for Union of India, pleaded that the learned Single Judge has wrongly arrived at the conclusion that

there was non-compliance of sub-rule (1) of Rule 22 of BSF Rules while dismissing the writ petitioner from service. He further pleaded that the

show cause notice issued to the writ petitioner and subsequently the inquiry held thereto as also other connected material were sufficient to arrive at

the conclusion by the competent authority that the trial of writ petitioner was not reasonably practicable as he was absent from the Unit and despite

issuance of apprehension rolls to the police he could not be apprehended nor he reported to his Unit, or submitted any medical documents

regarding his illness. He further argued that the provisions of Article 311 of the Constitution of India do not apply to the armed forces nor the

provisions of Central Civil Services (Classification, Control and Appeal) Rules apply to the members of armed forces.

Heard learned counsel appearing for the parties and perused the record so produced.

Admittedly, the writ petitioner did not join his duty despite several communications. Even the petitioner did not join after issuance of

apprehension rolls nor did he produce any medical document in support of his claim that he was suffering from a serious abdomen disease so as to

show his bona fide absence from duty.

We are of the opinion that the observation of the learned Writ Court that as to why it was not reasonably practicable to give the writ petitioner

an opportunity of showing cause, is not sustainable in view of the fact that the writ petitioner was not in the control of appellant-authority as he was

absent from duty and despite issuance of apprehension rolls he could not be apprehended. Further, Article 311 of the Constitution is not applicable

in the case of personnel of armed forces including the BSF. Writ petitioner has not brought anything on record, much less medical record which

could substantiate his claim that he was suffering from any serious disease or his absence was bona fide, rather the record reveals that the

appellant-authority had time and again been issuing several letters asking the writ petitioner to resume his duty, but he failed to do so. Thus, the

competent authority had no option but to resort the provisions as admissible under rules. A perusal of the record demonstrates compliance of all

the rules which the competent authority was required to follow while proceeding against the writ petitioner.

The Supreme Court in Mithilesh Singh Vs. Union of India (UOI) and Others, , has held that mere making an application for leave by he

delinquent cannot be construed to be of any consequence in the background of the strict requirement of giving proper intimation. It has been further

held that even if it is accepted that there was intimation, that by no such imagination can be construed to be a proper intimation for diluting the

requirement of obtaining permission before absenting from duty.

What is held by the Apex Court in Union of India and others Vs. Ram Pal, , is reproduced hereunder:

8 The first sentence in the notice that ""You have been absent with out leave with effect from 21.12.1983"" satisfied the requirement of sub-rule (3).

When it further stated that ""I am of the opinion that because of this absence without leave for such a long period, your further retention in service is

undesirable"" it complied with the requirement of sub-rule (1) and as required by sub-rule (2) it was further stated therein that ""I therefore,

tentatively propose to terminate your service by way of dismissal"". The respondent was called upon to show cause within seven days as required

by sub-rule 6. No further inquiry was held; but we find that nothing further was required to be done in this case. The respondent did not reply to

the notice. There was no denial of the allegations and no request to hold an enquiry. Therefore, it was not incumbent upon the Director General to

appoint an enquiry officer to conduct an enquiry in the manner prescribed by Rule 21. Thus the prescribed procedure was followed before passing

the dismissal order. The courts below have failed to appreciate the correct position of law and the facts. It was therefore wrongly held that the

order of dismissal was illegal as it was not in accordance with the provisions of the Act and the Rules.

The Apex Court in Gouranga Chakraborty Vs. State of Tripura and Another, , has held has under:

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 S. 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 validity

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-sec. 4 of S. 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 without 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 S. 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 any procedure has not 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.

The Supreme Court in Union of India and another Vs. Ex Constable Amrik Singh, , has also held that the principles of natural justice do not

apply to the members of the defence forces like the BSF.

A Division Bench of this Court in G.O.C. Northern Command v. Major Ramesh Chander, 1977 JKLR 11 : JKJ Soft JKJ/21231, has held

that Article 311 of the Constitution of India is not applicable in the case of armed forces personnel because they are protected under Article 33 of

the Constitution, relevant portion whereof is reproduced hereunder:

It is to be noticed that there is a fundamental difference between the position of the Armed Forces and that of members of Civil Services who

are also governed by article 310. Whereas a constitutional protection has been given to the members of Civil Service by engrafting Art. 311,

according to which no member of civil service can be dismissed, removed from service or reduced in rank without giving him proper notice and

without affording him reasonable opportunity to be heard, no such constitutional right has been conferred on those subject to the Army Act. From

this it follows that members of the Civil Service can, in exercise of the constitutional protection guaranteed to them under Art. 311, claim relief on

the principle of natural justice and if any member is dismissed or reduced in rank otherwise than provided by this Article that order is liable to be

quashed. In Art. 311 the principle of natural justice has been introduced which is absent in Art. 310. It can therefore, be rightly said that Art. 311

contracts Art. 310 but this benefit conferred by Art. 311 cannot be claimed by the members of the armed forces in whose case this benefit has

been deliberately taken away and the rule of natural justice has been made inapplicable in their case.

In view of the foregoing reasons, we are of the considered view that the reasoning given by the learned Writ Court in the impugned judgment is

not legally correct, the same, therefore, needs to be reversed. Accordingly, we allow the appeal and set aside the judgment of learned Single

Judge, impugned herein, along with all connected CMA(s). Consequently, the writ petition filed by the writ petitioner is dismissed. Registry to

return the record to the learned counsel for appellant against proper receipt.