Tripura High Court
Sri Prasenjit Das vs The Union Of India And Others on 8 January, 2021
Author: Akil Kureshi
Bench: Akil Kureshi
Page 1 of 8
HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.843/2020
Sri Prasenjit Das
----Petitioner(s)
Versus
The Union of India and others
-----Respondent(s)
For Petitioner(s) : Mr. Somik Deb, Advocate.
For Respondent(s) : Mr. Bidyut Majumder, Asstt. S.G.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
Order
08/01/2021
Petitioner has challenged an order of dismissal passed by the competent authority as confirmed by the appellate authority.
2. Brief facts are as under:
Petitioner was engaged as a constable in Border Security Force (BSF, for short). He availed of leave for a period of 20 days w.e.f.
25.07.2018. Upon completion of leave period he did not report for duty. He remained on unauthorized leave for months together. Eventually the competent authority (Commandant, BSF) issued a show-cause notice to which the petitioner did not respond. The said authority, therefore, passed an Page 2 of 8 order dated 15.03.2019 dismissing the petitioner from service without pension. He further provided that the period of unauthorized absence from 10.10.2018 to 15.03.2019 would be treated as dies-non. The petitioner first challenged this order in a writ petition. He was asked to file appeal which was filed but disposed of by the appellate authority on 29.05.2020 with following observations:
"7. Whereas, in compliance of Hon'ble court order dated 04.02.2020, the appeal dated 29.05.2019 for re-instatement in service submitted by the petitioner has been considered and examined by the Inspector General, BSF Rajasthan Ftr in detail, in the light of relevant Rules as well as facts and circumstances of the case. In the representation dated 29.05.2019, the petitioner contended that he was so busy in the treatment of self illness as well as mother's treatment, as such he could not be able to respond immediately against his dismissal order and further requested to reinstate him in service on compassionate ground. It is evident from the record that adequate opportunities have been afforded to the individual to re-join the duty after expiry of leave granted/extended to him but he did not avail the same and did not respond to unit correspondence or had submitted any documents to substantiate his claim about self illness or mother treatment. More so he did reply to the Show Cause Notice issued by the Unit. All the action taken against the petitioner are in accordance to BSF Act & Rules as well as instructions thereof, following due procedure of law as such Page 3 of 8 no prejudice has been caused to the individual by the authority. In light of above, IG BSF Ftr HQ Rajasthan arrived at the conclusion that the dismissal order issued by the Commandant 114 Bn BSF, vide Order No.Estt/114 Bn/Disc/2019/1763-67 dated 15 March'2019, is in order and requires no interference.
8. In view of above facts & circumstances of the case, the Inspector General, BSF, Rajasthan Frontier has rejected the instant appeal dated 29.05.2019 submitted by the petitioner for re-instatement in service, being devoid of merit."
3. Learned counsel Mr. Somik Deb for the petitioner submitted that the petitioner had proceeded on leave on account of illness of his mother. Subsequently, the petitioner himself fell ill on account of which he could not report for duty. In any case, the authorities have acted unlawfully. Powers under sub-rule (2) of Rule 22 of the Border Security Force Rules, 1969 (BSF Rules, for short) were not available. He lastly contended that the show-cause notice was also not served. The entire procedure was thus conducted ex parte.
4. The record would, however, show that the petitioner who was a member of an armed force, overstayed his leave period by several months. During this period of his unauthorized absence the department tried to serve him notices and also persuaded him to resume duty. The appellate authority Page 4 of 8 has recorded in the order that a communication was issued to the Superintendent of Police, South Tripura on 21.12.2018 with a request to apprehend the petitioner despite which neither the petitioner resumed his duties nor any response was received from the police authorities. Thereafter, a special messenger was sent to the house of the petitioner but he was not found there. The special messenger contacted the petitioner on mobile phone and asked him to report to the headquarters which he refused. Under the request of the special messenger the petitioner also contacted the headquarters when also request was made for him to resume the duties which he refused. In such background the appellate authority recorded that due to prolonged unauthorized absence charge of the petitioner by a Security Force Court under the BSF Act and Rules was felt impracticable and inexpedient and his further retention in service was considered detrimental to the discipline of the force. It was under such circumstances that the Commandant exercised powers under Rule 22(2) of the BSF Rules and dismissed the petitioner from service which order as noted earlier the appellate authority also confirmed.
5. I have no reason to interfere with such orders. As noted, the petitioner was a member of the armed force and showed total lack of discipline by remaining unauthorisedly absent for a long period. Even when Page 5 of 8 attempt was made to contact him, initially, he was untraceable. He was persuaded on telephone to resume duty. He remained unmoved.
6. I do not think the interpretation of the counsel for the petitioner of Rule 22 of the said Rules would come to the aid of the petitioner. Before we refer to Rule 22 one may have a look at Section 19 of the Border Security Force Act, 1968 (BSF Act, for short) which provides that any person subject to the said Act and who commits any of the following offences which includes in clause (a) of a person absenting without leave, shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in the Act mentioned. Absence from duty without leave of a member of BSF thus is a punishable offence and would be dealt with under Section 19 of the BSF Act.
7. Rule 22 of the BSF Rules on the other hand pertains to dismissal or removal of persons other than officers on account of misconduct. This rule reads as under:
"22. Dismissal or removal of persons other than officer on account of misconduct.--(1) When it is proposed to terminate the service of a person subject to the Act other than an officer, he shall be given an opportunity by the authority Page 6 of 8 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 an Inspector.
(4) All cases of dismissal or removal under this rule, shall be reported to be Director-General."Page 7 of 8
8. As per sub-rule (1) of Rule 22 when it is proposed to terminate the service of a person other than an officer, he would be given an opportunity by the competent authority to show-cause in the manner specified in sub-rule (2) before dismissing or removing him from service. As per sub-rule (2) when after considering the reports on the misconduct of the concerned person the competent authority is satisfied that the trial of such a person is inexpedient or impracticable but further retention of the person in service is undesirable, it would so inform him along with all the reports adverse to him and call upon him to submit his explanation and defence in writing. As per sub-rule (3), the competent authority after considering the explanation and defence, if any may remove or dismiss the person from service with or without pension.
9. Sub-rule (1) of Rule 22 thus is the source of power of a competent authority to dismiss or remove a member of the force. Sub-rule (2) essentially lays down the procedure when the competent authority instead of ordering trial of the concerned person for alleged misconduct, decides to exercise the power of removal or dismissal on the ground that his further retention in service is undesirable. Sub-rule (3) of Rule 22 provides for the punishments which the competent authority can impose after following the procedure prescribed in sub-rule (2). When sub-rule (2) of Page 8 of 8 Rule 22 refers to satisfaction of the competent authority of inexpedience or impracticability of a trial of such a person, it necessarily as reference to Section 19 of the BSF Act which as noted, prescribes punishment upon conviction by Security Force Act of a person who commits any of the offences provided in the said Section including of absenting himself without leave. The appellate authority has also elaborated on this aspect of the matter and he recorded that in view of the prolonged absence from duty the trial of the employee by the Court of inquiry was found inexpedient. At the same time, his retention in service was found to be undesirable. Hence, the action under sub-rules (2) and (3) of Rule 22 of dismissal from service.
10. Petition is, therefore, dismissed.
Pending application(s), if any, also stands disposed of.
(AKIL KURESHI), CJ Pulak