Meghalaya High Court
Shri. Aditya Pratap vs The Union Of India And Ors on 1 May, 2014
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
WP(C) No.220/2013
Shri. Aditya Pratap,
S/o Shri. Ramsaran Prasad of Village Sahari,
P.O. Lakhanapar,
Thesil - Sahajawna,
District: Gorakhpur,
Uttar Pradesh. :::: Petitioner
-Vs-
1. The Union of India, represented by the
Secretary, Home Affairs, New Delhi.
2. The Director General,
Border Security Force (BSF),
C.G.O. Complex, Lodhi Road, New Delhi.
3. The Officiating PSO/DIG,
Headquarter Guwahati Frontier,
Border Security Force,
Patgaon, Guwahati, Assam.
4. The Officiating Commandant,
35 Bn. Border Security Force,
Dhanakgre, Tura, Meghalaya.
5. The Inspector General,
Border Security Force,
Headquarter Frontier,
Border Security Force,
Shillong, Meghalaya. :::: Respondents
BEFORE
THE HON'BLE MR JUSTICE T NANDAKUMAR SINGH
For the Petitioner : Mr. AS Siddiqui,
Mr. R. Sahu, Advs
For the Respondents : Mr. R Deb Nath, CGC
Date of hearing : 01.05.2014
Date of Judgment & Order : 01.05.2014
Page 1 of 7
JUDGMENT AND ORDER(ORAL)
Heard Mr. AS Siddiqui, learned counsel for the petitioner and
Mr. R Deb Nath, learned CGC appearing for the respondents.
2. The petitioner had been dismissed from service by the
impugned order dated 10.04.2012 for the unauthorized absence and also for
recovering the cost of deficient kit/clothing items to the tune of Rs. 3,493.77
say Rs.3,494/- (Rupees three thousand four hundred ninety four) only and
Rs.2,302/- on account of railway warrant be recovered from the amounts due
to him and be deposited into Govt. Treasury and also I.D. card etc. For easy
reference, the impugned order dated 10.04.2012 (Annexure-VII to the writ
petition) is quoted hereunder:-
"No.35Bn Estt.-Disc/A WL-A-P/2012 4522-44 Dated: 10 April, 2012
//// O R D E R /////
ORDER BY SHRI.ARVIND GHILDIYAL, 2IC/OFFG, COMDT 35 BN BSF IN
THE AWL CASE NO.082545989 CONSTABLE ADITYA PRATAP
I have examined the matter relating to the illegal absence
without leave by No. 082545989 Constable Aditya Pratap of 35
Bn BSF.
2. As mandated vide Sub Rule (2) of Rule 22 of the BSF Rules,
No. 082545989 Constable Aditya Pratap was given an
opportunity to show cause vide 35 Bn BSF notice
No.Estt/Disc/35 Bn/2011/18312-14 dated 12 Dec' 2011 (By
Registered Post) against his proposed dismissal from the
service. No. 082545989 Constable Aditya Pratap however, has
failed to submit any reply to the said show cause notice till date.
3. Considering the matter in its entirety, I am satisfied that No.
082545989 Constable Aditya Pratap has been illegally
absenting without leave since 05/08/2011 (AN), I am also
satisfied that his aforesaid continued illegal absence is contrary
to the expected norms and is detrimental to the Force
discipline, which makes his further retention in the Force as
undesirable.
Page 2 of 7
4. I therefore direct that No. 082545989 Constable Aditya
Pratap be dismissed from the service with effect from 10 April'
2012 (AN).
5. The unauthorized absence period with effect from
05/08/2011 to 10/4/2012 be treated as "Dies-non".
6. The cost of deficient kit/clothing items to the tune of
Rs.3,493.77 say Rs.3,494/- (Rupees three thousand four
hundred ninety four) only and Rs.2,302/- on account of railway
warrant be recovered from the amounts due to him and be
deposited into Government Treasury. Identity Card bearing
No.420004 issued to individual should also be recovered from
the individual through local police authority and disposed off as
per instructions.
7. Individual is struck off strength of this unit with effect from 10
April, 2012 (AN).
Sd/-
(Arvind Ghildiyal)
Offg Commandant
35 Bn BSF
Distribution:-
1. No. No. 082545989 Constable Aditya Pratap If you feel aggrieved by
S/o Sh Ram Saran Prasad this order, you may
Vill-Sahari present a petition to the
PO: Lakhanpar IG BSF Shillong within
PS: Sahajabad 03 months from the
Distt: Gorakhpur (UP) date of receipt of this
Pin Code-273209 (By Registered Post) order.
2. The Supdt. of Police For info and necessary
Distt. Gorakhpur (UP) action. You are
Pin Code-273209 requested to recover
(By Registered Post) Identity Card bearing
No.420004 from above
individual and arrange
to send same to this
unit at the earliest.
3. The SHO, PS, Sahajabad For info please.
Distt. Gorakhpur (UP)
Pin Code-273209 (By Registered Post)
4. All Dtes FHQ BSF New Delhi/ For info please.
All Ftr HQrs/All SHQrs/All Units/All Trg
Instns/STS I & II/Sig Regt/Arty
Regiments/PAD BSF.
Internal
5. All Branches/Coys. 6. Roznamcha. 7. BRO-II (in duplicate) 8 File."
Page 3 of 7
3. On hearing the submission of Mr. AS Siddiqui, learned counsel
for the petitioner at length and also on perusal of the writ petition, it is clear
that the only ground for assailing the impugned order dated 10.04.2012 is
that the petitioner, even if absent without leave, the authority has no
alternative but to take action under Section 19 of the Border Security Force
Act, 1968 (for short 'the said Act of 1968') and Section 19 of the said Act of
1968, does not prescribe the removal or dismissal from service. Therefore, it
is the case of the petitioner that he cannot be dismissed from service for the
unauthorized absence and Section 19 of the said Act of 1968 provides only
punishment mentioned therein. Section 19 of the said Act of 1968 reads as
follows:-
"19. Absence without leave - Any person subject to this Act
who commits any of the following offences, that is to say, -
(a) absents himself without leave; or
(b) without sufficient cause overstays leave granted to him; or
(c) being on leave of absence and having received information
from the appropriate authority that any battalion or part thereof
or any other unit of the Force, to which he belongs, has been
ordered on active duty, fails, without sufficient cause, to rejoin
without delay; or
(d) without sufficient cause fails to appear at the time fixed at
the parade or place appointed for exercise or duty; or
(e) when on parade, or on the line of march, without sufficient
cause, or without leave from his superior officer, quits the
parade or line of march; or
(f) when in camp or elsewhere, is found beyond any limits fixed,
or in any place prohibited, by any general, local or other order,
without a pass or written leave from his superior officer; or
(g) without leave from his superior officer or without due cause,
absents himself from any school when duly ordered to attend
there,
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 this Act mentioned."
(emphasis supplied)
Page 4 of 7
4. On a plain perusal of Section 19 of the said Act of 1968, it is
crystal clear that it is a penal provision for the unauthorized absence of the
Border Security Force personnel. It is fairly well settled law in the service
jurisprudence that an unauthorized or illegal absence of an employee may
have two consequences viz penal provision and another for removal of
service. A paradigm case, a member of the Meghalaya Civil Service in the
case of misappropriation of funds, he can be dismissed from service and also
action can be taken up for the offence under the penal code by registering a
criminal case. Therefore, in criminal case for the penal offence for
misappropriation of funds, he can be convicted for the penal offence and at
the same time, he can be removed from service after holding a Departmental
Enquiry. Therefore, the Departmental Enquiry and criminal proceeding are
two different proceedings for the different objects. In the present case, for an
unauthorized absence of the petitioner, the authorities can dismiss the
petitioner from service under Section 11 of the said Act of 1968 and also he
can be convicted or sentenced for the penal provision under Section 19 of
the said Act of 1968 by the Security Force Court. Therefore, it appears that
the petitioner misunderstood the two separate proceedings one under
Section 11 and another under Section 19 of the said Act of 1968. Regarding
this point, we may refer to the decision of the Apex Court in Sri. Gouranga
Chakraborty vs. State of Tripura & Anr.: AIR 1989 SC 1321 that the power
of dismissal from service of prescribed authority under Section 11(2) is
independent. It does not depend upon award of punishment by Security
Force Court. Paras 12, 13, 14, 23 & 24 of the AIR in Sri. Gouranga
Chakraborty's case (Supra) read as follows:-
Page 5 of 7
"12. Section 11 which is very relevant for the decision of the
instant case is quoted herein below:-
"(1) The Director-General or any Inspector-General may
dismiss or remove from the service or reduce to a lower grade
or rank or the ranks any person subject to this Act other than an
officer.
(2) An officer not below the rank of Deputy Inspector-General or
any prescribed officer may dismiss or remove from the service
any person under his command other than an officer or a
subordinate officer of such rank or ranks as may be prescribed.
(3) Any such officer as is mentioned in sub-section (2) may
reduce to a lower grade or rank or the ranks any person under
his command except an officer or a subordinate officer.
(4) The exercise of any power under this section shall be
subject to the provisions of this Act and the rules."
13. Chapter III specifies the offences under the BSF Act.
Section 19 of the said Chapter states that:-
"Any person subject to this Act who commits any of the
following offences, that is to say:-
(a) absents himself without leave; or
(b) without sufficient cause overstays leave granted to him; or
(c) being on leave of absence and having received information
from the appropriate authority that any battalion or part thereof
or any other unit of the Force, to which he belongs, has been
ordered on active duty, fails, without sufficient cause, to rejoin
without delay; or
............................
............................. etc.etc. 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 this Act mentioned."
14. All the offences incorporated in Chapter III are convictable by the Security Force Court.
23. It has, however, been urged on behalf of the State that the power conferred on the Commandant as Prescribed Authority under Section 11(2) to dismiss any person under his command from the service read with Rule 177 of the said Rules is an independent power as held by the High Court and as such the impugned order of dismissal from service of the appellant passed by the respondent is not at all arbitrary or illegal.
Page 6 of 724. We have scrutinized 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 Section 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 validly 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-section 4 of Section 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 Section 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."
5. For the foregoing discussions, this Court is of the considered view that there is no merit in the present writ petition and accordingly dismissed.
JUDGE Lam Page 7 of 7