Calcutta High Court (Appellete Side)
Constable No. 94016118 vs The Dig on 17 May, 2017
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar
W.P. 7060(W) of 2002
Constable No. 94016118, Sanatan Barui
-vs.-
The DIG, Boarder Security Force & Ors.
For the Petitioner : Mr. Pratik Dhar
Mr. Haradhan Mondal
For the Respondents : Mr. Sabyasachi Bhattacharyya
Ms. Ashima Roy Chowdhury
Heard on : 28/06/2016, 16/09/2016
& 16/02/2017
Judgement on : 17/05/2017
Subrata Talukdar, J.:
In this writ petition the petitioner challenges the impugned order of dismissal from service issued by the respondent/Border Security Force (for short BSF) dated 19th August, 1999.
The petitioner, who is represented by Ld. Senior Counsel, Mr. Pratik Dhar assisted by Mr. Haradhan Mondal, Ld. Counsel commences his submission with the fact that the petitioner joined service with the BSF to the post of constable on 15th June, 1994. The petitioner was posted in the Jammu & Kashmir sector in 1996 and, applied for Earned Leave (for short EL) from November, 1998 to December, 1998.
The petitioner failed to report for duty on expiry of his EL period and, applied for extension of leave in February, 1999. Since the petitioner did not apply for extension of leave for two months, i.e. between December, 1998 and February, 1999 and, had exhausted the initial leave period, his application for extension of leave was rejected and the respondent/BSF directed him to rejoin service by a communication dated 4th March, 1999. The petitioner thereafter reported for a day only on 19th March, 1999 and, deserted his Unit en route from Pulwana to Srinagar. Thereafter the petitioner absented himself from duty on and from 20th March, 1999, forcing the respondent/BSF to order a Court of Inquiry (COI) in May, 1999. The COI investigated the absence of the petitioner from service in terms of Section 62 of the BSF Act, 1968 (for short the BSF Act) and, came to the conclusion that the petitioner is absent without reason and authority. Therefore, the petitioner was declared a deserter eligible to be dismissed from service.
The petitioner interestingly applied for extension of leave by his communication dated 17th April, 1999 which, was received by the respondent/BSF on 19th April, 1999. Since the petitioner was already declared to be a deserter by the COI (supra), the question of extension of leave did not arise.
However, by a Show-Cause Notice (for short SCN) dated 25th May, 1999 the petitioner was called upon to submit his response connected to his period of absence. Since the SCN did not receive a response as also the second SCN dated 18th June, 1999, which compelled the BSF under the rules to approach the Superintendent of Police, Birbhum to arrest the petitioner and report such arrest to the BSF. However, since the petitioner could not be arrested and failed to avail the opportunity to reply to the second SCN dated 18th June, 1999, the petitioner stood dismissed from service w.e.f. 19th August, 1999 under Rule 177 of the BSF Act read with the BSF Rules, 1969 (for short the BSF Rules), treating his period of absence from 20th March, 1999 to August, 1999 as "dies non". By the order impugned, the DIG, BSF also arrived at the conclusion that it is neither expedient nor practicable to continue with the service of the petitioner in BSF.
Before proceeding to discuss the legal stand taken by the parties in the present case, this Court must comment on the factual aspects surrounding the conduct of the petitioner in moving forward with this lis. After entering into a cat and mouse game with the BSF, the petitioner ultimately arrived before this Court with the present writ petition in 2002.
On 23rd May, 2002, 20th January, 2003 and 24th March, 2003 three Hon'ble Single Benches had the opportunity to deal with the matter. Exchange of affidavits was directed on 20th January, 2003 and, on 24th March, 2003 the matter was sent to the Lok Adalat to explore the possibility of a settlement.
The matter appeared before the 21st Lok Adalat on 11th April, 2003 when, the Lok Adalat was pleased to observe that the matter cannot be amicably settled. Therefore, a direction was passed to place the matter before the appropriate Bench dealing with service matters.
Between 2003 and 2015, no effort was made by the petitioner to get the matter heard. After 13 long years, the matter appeared before this Court as an Old Writ matter and, has been sporadically argued before judgment could be reserved.
The essential defence taken by the writ petitioner is on non- compliance with the provisions of the BSF Act and BSF Rules. Ld. Senior Counsel for the petitioner points out that Rule 22 of the BSF Rules provides, inter alia, that the petitioner must be communicated with all the reports adverse to him by extending an opportunity to place his defence. However, according to the petitioner, the SCN dated 18th June, 1999 did not contain any enclosure and, therefore was violative of Rule 22 (supra).
It is also argued that the order of dismissal under Rule 77 of the BSF Rules read with Section 11(4) of the BSF Act permits a penal action in the form of dismissal only upon compliance with Rule 22 (supra). Since, no compliance of Rule 22 has been demonstrated and, particularly Rule 22 (2), the SCN stands vitiated and, cannot be acted upon. Accordingly, the order of dismissal requires to be set aside.
The second legal point taken is with regard to service of the SCN. In this connection the petitioner relies upon the pronouncement of the Hon'ble Apex Court reported in 1998 (7) SCC 569, In Re:
Union of India & Ors. vs. Dinanath Shantaram Karekar & Ors. It is argued that if there is nothing on record to show that the SCN was actually served or, communicated to the writ petitioner/delinquent officer, such SCN would be bad in law. There is nothing on record to show that the SCN has been actually served on the writ petitioner and, without actual service there can be no foundation for taking any ultimate disciplinary action by the employers/BSF.
Arguing that the impugned order of dismissal is jurisdictionally flawed, Ld. Senior Counsel for the petitioner submits that therefore the plea of existence of an alternate remedy in the shape of Rule 22A of the BSF Rules providing for an appeal forum before the IG, BSF stands ousted.
Finally, it is argued for the petitioner that his conduct does not show any suppression of material facts since, the petitioner correctly described himself as the only 'available' son for looking after his ailing mother.
On behalf of the respondents/BSF, Ld. Senior Counsel, Mr. Sabyasachi Bhattacharyya appears with the able assistance of Ms. Ashima Roy Chowdhury, Ld. Counsel and, argues as follows:-
First, the SCN dated 18th June, 1999 was validly issued since the competent authority being the DIG, BSF was satisfied in terms of Rules 22(1) and 22(2) of the BSF Rules that it was inexpedient and/or impracticable to further retain the petitioner in service. The principles of Natural Justice stood satisfied since the SCN dated 18th June, 1999 contained the necessary particulars for the petitioner to furnish his reply. It is a fact that the Postal Authority reported the item as undelivered on the 26th of June, 1999 stating that the addressee/the petitioner has left for work at Srinagar. However, such postal note appears to have been manipulated since the petitioner was medically indisposed from 25th March, 1999 to 1st August, 1999 as would be evident from the medical certificates annexed to the writ petition. Since the petitioner, as per medical certificates (Annexure "B" collectively), was found to be suffering from Jaundice and Hepatitis, it is patently false that the addressee/petitioner could have gone to Srinagar on 26th June, 1999, i.e. during his sickness period.
Second, the DIG, BSF being the competent authority rightly exercised powers vested on him under Section 11 of the BSF Act following the procedure prescribed under Rule 22 of the BSF Rules. Such powers are vested in the DIG in terms of Section 11(2) of the BSF Act and, can be exercised in the event the DIG/the petitioner' controlling authority is of the view that it is neither expedient nor practicable to keep the petitioner in service.
Third, the petitioner could have applied before the Inspector General under Rule 28A of the BSF Rules within a period of 3 months from the date of the order of dismissal. However, instead of doing so the petitioner filed the writ petition after 2 years and 6 months intentionally allowing the limitation for filing the appeal to lapse.
Having heard the parties and considering the materials placed, this Court arrives at the following findings:-
A) That there is no infraction of the principles of natural justice qua the petitioner. It is trite law that natural justice is not a straight jacket formula and cannot be invoked unless prejudice is specifically out. Reference with regard to the above noted point can be made to Paragraph 19 of In Re:
K. L. Tripathi vs. State Bank of India & Ors. reported in 1984 (1) SCC 43 and Paragraph 13 of In Re: State of U.P. vs. Harendra Arora & Anr. reported in 2001 (6) SCC 392 which respectively read as follows:-
1984 (1) SCC 43 (supra) "19. Thereafter on 1st May, 1976, the appellant received a letter from the Chief General Manager intimating to him that in accordance with the independent investigation conducted under Rule 50(1) of the State Bank of India (Officers & Assistants) Service Rules governing the appellant's service in the Bank, the statement of charges served dated 19th June, 1975 and the appellant's reply thereto dated 5th November, 1975 were submitted to the Local Board at its meeting held on the 28th April, 1976 and it was resolved that the appellant be dismissed from the service in terms of Rule 49 (f) of the aforesaid service rules. Thereafter the appellant by the said rule was required to submit his written statement showing cause why the penalty proposed should not be imposed upon the appellant. The appellant was further informed that if no reply was received, the State Bank of India's authority will presume that the appellant had no submissions to make.
Along with the said letter, a copy of the statement of charges and a copy of the report of the Investigating Officer who investigated, consisting of investigation in respect of each of the allegations and the appellant's explanations to the allegations during the time of the preliminary investigation and the facts and materials gathered during the preliminary investigation in which the appellant participated as mentioned thereinbefore was sent.
2001 (6) SCC 392 (supra)
13. The matter may be examined from another view point. There may be cases where there are infractions of statutory provisions, rules and regulations. Can it be said that every such infraction would make the consequent action void and/or invalid? The statute may contain certain substantive provisions, e.g., who is the competent authority to impose a particular punishment on a particular employee. Such provision must be strictly complied with as in these cases the theory of substantial compliance may not be available. For example, where a rule specifically provides that the delinquent officer shall be given an opportunity to produce evidence in support of his case after the close of the evidence of the other side and if no such opportunity is given, it would not be possible to say that the inquiry was not vitiated. But in respect of many procedural provisions, it would be possible to apply the theory of substantial compliance or the test of prejudice, as the case may be. Even amongst procedural provisions, there may be some provisions of a fundamental nature which have to be complied with and in whose case the theory of substantial compliance may not be available, but the question of prejudice may be material. In respect of procedural provisions other than of a fundamental nature, the theory of substantial compliance would be available and in such cases objections on this score have to be judged on the touchstone of prejudice. The test would be, whether the delinquent officer had or did not have a fair hearing. In the case of Russel vs. Duke of Norfolk & Ors., 1949 (1) All E.R. 109, it was laid down by the Court of Appeal that the principle of natural justice cannot be reduced to any hard and fast formulae and the same cannot be put in a straitjacket as its applicability depends upon the context and the facts and circumstances of each case."
B) This Court admittedly notices that the SCN dated 25th May, 1999 contained the necessary details with regard to the basic charge against the petitioner of remaining unauthorisedly absent beyond the leave period. The SCN, which was addressed to his permanent home in West Bengal, called upon him to immediately report for duty failing which the petitioner shall be liable to be proceeded against under the BSF Act and Rules. The SCN dated 25th May, 1999 also indicated that, in the event he continues to play truant, appropriate steps for his production through the police machinery can be availed of by BSF.
C) That from the reasons, discussed above, this Court finds that the petitioner has adopted dubious stands which are false on the face of the record. While on the one hand the petitioner submitted a medical certificates (Annexure "B" collectively- supra) showing him to be ill with Jaundice and Hepatitis between 25th March, 1999 and the 1st of August, 1999, i.e. covering the date of the postal notice dated 26th of June, 1999, it does stand to reason that the postal endorsement dated 26th of June, 1999 showing the petitioner to have proceeded to Srinagar is manipulated and/or procured. D) This Court is of the further considered view that although the petitioner claims to not having received the SCN dated 25th May, 1999, he responds to the final order of dismissal on 19th August, 1999, both the above noted notice and order being addressed to his permanent residence in this State. That this writ petition has been filed after obtaining knowledge of the order of dismissal which, similarly to the SCN dated 25th May, 1999 (supra) has been addressed to the village home of the writ petitioner in West Bengal, renders the stand of the writ petitioner thoroughly unconvincing bereft of bona fides. The above noted facts compel this Court to notice that the writ petitioner has taken recourse to a selective response qua his employers/ BSF, only for the purpose of creating a flawed impression of the action taken by his employers/BSF connected to his unauthorized absence.
E) In addition to the fact that the SCN dated 25th May, 1999 reflects the necessary facts for obtaining the reply of the writ petitioner and, to enable him to report for duty, this Court must notice that the SCN dated 25th May, 1999 as well as the final order of dismissal w.e.f. 19th August, 1999 were preceded by a regular COI which upon consideration of evidence as provided by the rules of his employment came to the conclusion that the petitioner is absenting himself from duty without reason and therefore must be dismissed from service.
F) The conclusion of the COI dated 10th June, 1999 was sought to be communicated to the writ petitioner by the BSF on 18th June, 1999 seeking his reply with regard to the proposed penalty of dismissal failing which further action may be taken ex parte.
G) Therefore, this Court finds no ambiguity in the stand taken by Ld. Senior Counsel for BSF that the principles of natural justice were complied with and the petitioner transmitted with the materials required for his defence. This Court also finds the conduct of the petitioner unbecoming of a Jawan in a disciplined force since there is no cogent explanation provided before this Court for the manner in which the petitioner 'deserted' his battalion en route from Pulwana to Srinagar. This Court finds it further compelled to hold that the subsequent legal proceedings initiated by the petitioner constituted part of a design to thwart any action which could be contemplated against him on the charge of 'desertion'. H) This Court must also notice the substance in the pleadings on record placed by the respondents/BSF to the effect that although the petitioner had stated in his service record the names of his mother and two adult brothers, at the time of applying for leave preferred to state that he is the "only one son" to look after his ailing mother. This Court finds that the attempt on the part of the Ld. Senior Counsel for the petitioner to whitewash the explanation of the petitioner for having used the expression "only one son" by arguing that no other son/his brothers were taking up the responsibility to look after their mother, does not diminish the culpability of the writ petitioner in not stating the truth before his employers/BSF.
I) Before parting with this case this Court must notice that considerable public money, time and energy has been devoted to ensure a logical finish to the game of truancy started by the petitioner. Not only his employers/BSF but, also this Court, has been patient in granting the petitioner several opportunities for taking a correct stand consonant to his conduct.
This Court, while being invited to adjudicate upon the perceived injustice raised by the writ petitioner, at the same time must also keep in mind the exigencies of a disciplined force entrusted with the task of national security which, must be now allowed to focus on its real job with some judicial succour.
WP 7060(W) of 2002 stands accordingly dismissed with costs assessed at Rs. 10,000/- payable by the petitioner to be deposited with the BSF Jawans Welfare Association.
The District Magistrate/Collector, Birbhum shall be entitled to realise, if not paid on demand and, deposit the costs as assessed and directed above, by way of Public Dues in the nature of a Certificate under the Bengal Public Demands Recovery Act, 1913.
Registry is directed to communicate this order to the District Magistrate/Collector, Birbhum.
The District Magistrate/Collector, Birbhum shall file a report on the steps taken by him in the light of the above noted direction within a period of three months from the date of communication of this order by the Registry.
Report of the DM, Birbhum to be filed with the record. Before parting with this case, this Court must place on record its appreciation of the vigilant steps taken by Ld. Advocate-on-Record for the respondents/BSF to defend the interests of her clients from 2002 till its conclusion before the Hon'ble Single Bench.
Registry is also directed to communicate this order to the IG, BSF for information and record.
Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)