Delhi High Court
Ex. Ct. Raj Kishan vs Uoi And Ors. on 4 September, 2002
Author: J.D. Kapoor
Bench: J.D. Kapoor
JUDGMENT Khan, J.
1. Petitioner was dismissed from service on 7.4.1999. He has filed this petition for setting aside of the dismissal order and for his reinstatement in service with back wages.
2. Petitioner was enrolled in BSF on 23.5.1988. At one stage, he was sent to undergo D & M Course and was granted casual leave and reward leave. After expiry of his leave, he was to report for duty in his unit on 26.5.1998 but he failed. Notices were sent to him by registered post asking him to resume his duty to which he failed to respond. Later apprehension rolls were also issued against him which also went abegging. He was then proceeded under Section 62 of BSF Act leading to the holding of court of inquiry against him to investigate into his unauthorised absence of 316 days. The court of inquiry report along with show cause notice dated 5.3.1999 was also sent to him which was, however, received back unserved. He was then finally dismissed by under dated 7.4.1999 passed by the Commandant under Section 11(2) of the Act read with Rule 177 of BSF Rules without any pensionary and financial benefits. He represented against this but his representation was rejected. He thereafter filed a statutory appeal also which met with the same fate.
3. Petitioner complains of violation of principles of natural justice. He alleges that he neither received any show cause notice from R-4 nor any copy of the report of court of inquiry and other documents. He also claims that he had addresses a letter to 25 BSF dated 28.8.1999 requesting for some documents related to termination of his services but even this was not acknowledged. He lastly submits that his dismissal order was illegal because it was ordered in exercise of administrative power without following the other alternatives provided in Sections 19, 62 and Rules 20, 21 and 22 as Commandant had not recorded any certificate that the trial of petitioner was inexpedient or was not reasonably practicable.
4. Respondents have filed their counter through S.K. Dewan, DIG (HQ) taking the stand that petitioner was repeatedly asked to resume his duties through registered letters. Even apprehension rolls were issued against him. But he failed to respond to all this and could not be located till he surfaced to make a representation against his dismissal and filed the statutory representation. It is also claimed that the requisite show cause notice along with court of inquiry proceedings was sent to him by registered letter dated 5.3.1999 proposing termination of his services without any financial benefits but even this was received back as unserved. Thereafter Commandant, after considering his entire case, ordered his dismissal on 7.4.1999 under Section 11(2) of the Act read with Rule 177 without any pensioner/financial benefits and treated his period of unauthorised absence of 316 days as dies-non. He was later struck off the strength on 7.4.1999. It is also submitted that the show cause notice issued to petitioner on 5.3.1999 recorded the opinion of the Commandant that his retention in service was undesirable and that his trial by security force court was inexpedient and impracticable.
5. All that remains to be seen is whether petitioner could be dismissed from service in exercise of power under Section 11(2) of the Act read with Rule 177 or whether respondents were obliged to take recourse to trial by security force court and also whether non-receipt of the show cause notice and the court of inquiry proceedings would vitiated the action taken against him in the facts and circumstances of the case.
6. Section 11(2) of the Act read with Rule 177 empowers the Commandant to dismiss or remove from empowers the Commandant to dismiss or remove from services any person under his command other than an officer or a subordinate officer. It has obviously nothing to do with the power of security force court for trying such person and dealing with the offences with which he is charged and to award him the requisite punishment. This power enjoyed by the Commandant is an independent power and it has been held to be so by several judgments of the Supreme Court. It was first laid down in Gouranda Chakraboprty v. State of Tripura and then followed in Union v. Ram Pal 1996 (2) SLR 297 holding that the power exercised by a Commandant under Section 11(2) read with Rule 177 was an independent power which had nothing to do with the power exercisable by a security force court and once show cause notice was issued in terms thereof, no further inquiry was required to be held if the delinquent person failed to reply to the notice and to deny the allegations in the process.
7. In this view of the matter, we find nothing wrong in the course adopted by R-4 in ordering petitioner's dismissal in exercise of power under Section 11(2) of the Act read with Rule 177 subject, of course, to the fulfillment of other requirements.
8. It goes without saying that petitioner was entitled to show cause notice proposing his termination from service recording the Commandant's satisfaction on the report of the court of inquiry and that it was inexpedient to go ahead with the security force court in terms of Rule 22. But this requirement was also satisfied in the present case because show cause notice dated 5.3.1999 along with the court of inquiry proceedings was sent to petitioner through registered letter No. Estt/25 Bn/D530/RK/99/5769 which was received back undelivered with the report that addressed was not found residing at the given address.
9. Given regard to this and that all notices and apprehension rolls sent to petitioner had gone abegging in the past also, though petitioner had at a later stage chosen to represent against his dismissal, it can't be said or held that R-4 had failed to give show cause notice to petitioner and to satisfy the prescribed requirements under Rule 22. If a person can't be reached to receive the notice proposing punishment to him or if it is found that he had deliberately avoided to receive the notice, the authority issuing the notice can't be blamed for this or charged of failure to satisfy the requirement. In such a case, presumption of service of notice goes against the person to whom the notice was addressed. It accordingly becomes difficult for us to uphold petitioner's contention and to hold that R-4 (Commandant) had failed to issue him show cause notice impinging upon the action taken against him.
10. That leaves us with the only surviving issue whether petitioner could be dismissed from service without pensionary and financial benefits. We are informed that CCS (Pension) Rules were applicable to BSF. Rule 24 of the Rules provides that a dismissal or removal of a Government servant from service will entail forfeiture of his past service. That being so, petitioner's dismissal without pensionary/fianancial benefits could not be faulted as such. But considering the overall circumstances of his case, he could be at least considered for payment of compassionate allowance under Rule 41 of the CCS (Pention) rules which provides for grant of allowance in deserving cases and in cases of special consideration. He may make a representation for this which shall be considered by the concerned authority and appropriate orders passed thereon within four months from receipt of representation.