Madras High Court
R.Rajkumar vs Union Of India on 14 March, 2019
Author: Abdul Quddhose
Bench: Abdul Quddhose
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.03.2019
CORAM
THE HONOURABLE MR.JUSTICE. ABDUL QUDDHOSE
W.P(MD).No.3041 of 2010
R.Rajkumar : Petitioner
Vs.
1.Union of India,
Represented by the Secretary,
Ministry of Home Affairs,
North Block,
New Delhi – 110 114.
2.The Director General,
Border Security Force,
Block No.10, C.G.O.Complex,
Lodhi Road,
New Delhi – 110 011.
3.The Inspector General,
Border Security Force,
Head Quarters AM Frontier,
Shillong, Meghalaya.
4.The Commandant,
21 Bn, Border Security Force,
(Presently at Karumpathamaptti -Post,
Kittampalayam – via,
Coimbatore District)
Praharinagar (upper Damalgiri),
Tura, Meghalaya. : Respondents
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Prayer : Writ Petition filed under Article 226 of the Constitution of
India to issue a writ of certiorarifid mandamus, to call for the records
relating to the order passed by the 3rd respondent in his order F/No.
26/8/2009-Estt/Shg/15039-44 dated 02.07.2009 confirming the order
passed by the 4th respondent dated 29.01.2009 in his order No.E-
II/Disc/RK/21/08/1361-1410 and quash the same and to direct the
respondents to take the petitioner into strength of Border Security
Force as Constable with all monitory benefits.
For petitioner : Mr.A.S.Mujibur Rahman
For Respondent : Mr.K.Ashok Kumar,
Central Government Standing Counsel
ORDER
The instant Writ Petition has been filed challenging the order dated 02.07.2009 passed by the 3rd respondent, confirming the order dated 29.01.2009 passed by the 4th respondent in dismissing the petitioner from service as Constable in Border Security Force, Government of India.
I. Factual Matrix.
2. It is the case of the petitioner that he was appointed as a Constable with the Border Security Force on 22.11.1988 and was in employment till 09.10.2004. According to him, he was sanctioned 60 days Earned Leave from 09.10.2004 to 06.12.2004 by the 4th http://www.judis.nic.in 3 respondent and he ought to have re-joined duty on 07.12.2004 as per the sanctioned leave. But due to a family dispute, a complaint was lodged by one of the members of his family and a criminal case was registered under Sections 294(b), 323, 506(i), 306 and 109 IPC r/w Tamil Nadu Public Property (Prevention of damages and Loss ) Act 1942. It is his case that he was arrested for the alleged offence on 10.11.2004 and the same was also informed to the 4th respondent by the police. Thereafter, he was released on bail on 18.11.2004. On 29.11.2004, the 4th respondent suspended the petitioner from service. The petitioner further states that the trial in the criminal case commenced on 10.06.2005 before the learned Judicial Magistrate No.I, Nagercoil in C.C.No.132 of 2005. Further, the petitioner states that the suspension order passed by the 4th respondent was reviewed on 23.08.2005 and subsistence allowance was granted to the petitioner with effect from 29.11.2004. Thereafter, the 4th respondent sent a letter to the learned Judicial Magistrate No.I, Nagercoil on 01.02.2006 requesting the Court to complete the case expeditiously. Thereafter, by judgment dated 07.02.2008 passed in C.C.No.132 of 2005, the learned Judicial Magistrate No.I, Nagercoil acquitted the petitioner from all the criminal charges. According to the petitioner, he made a representation dated 12.02.2008 to the 4th respondent requesting to revoke the suspension order. Thereafter, according to the petitioner on http://www.judis.nic.in 4 26.12.2008, the 4th respondent issued a show cause notice under Section 11(2) r/w. Rule 22 and 177 of the Border Security Force Act calling upon the petitioner to show cause as to why he should not be dismissed from service for abstaining from duty without leave of absence from 07.12.2004 onwards. According to the petitioner, he received the show cause notice only on 07.01.2009 and immediately he sent a detailed reply dated 19.01.2009 to the 4 th respondent, which was also acknowledged by the 4th respondent on 05.02.2009. It is the case of the petitioner that without holding any proper enquiry and without furnishing a copy of the enquiry report and without affording sufficient opportunity to the petitioner to cross examine the witness, the 4th respondent by its order dated 29.01.2009 dismissed the petitioner from service with effect from 29.01.2009, stating that he has failed to file a reply to the show cause notice dated 26.12.2008. Aggrieved by the order of the 4th respondent dated 29.01.2009, the petitioner preferred an appeal before the 3rd respondent on 21.04.2009, which also came to be dismissed on 02.07.2009 without considering the objections raised by the petitioner. Aggrieved by the dismissal order of the 3rd respondent dated 02.07.2009 confirming the order of the 4th respondent dated 29.01.2009, the instant Writ Petition has been filed.
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3. A counter affidavit has been filed by the respondents before this Court wherein they have stated that sufficient opportunity was granted to the petitioner before dismissing him from service. According to the respondents, several show cause notices were sent to the petitioner, which were not responded to by the petitioner. Even in the final show cause notice dated 26.12.2008, opportunity was given to the petitioner to submit his reply on or before 25.01.2009. The petitioner having received the show cause notice on 07.01.2009 itself did not send any reply within a period of 30 days from 26.12.2008. It is also their case that only 60 days earned leave was granted to the petitioner from 09.10.2004 to 06.12.2004, but without availing any extension of leave in accordance with the statutory rules, the petitioner had continued to absent himself from duty for a very long period of time. Since the petitioner failed to respond to various communications sent by the respondents and did not report for duty for a very long time, he was dismissed from service by the 4th respondent, which was also confirmed by the order of the 3rd respondent.
II. Submissions of the learned counsels.
4.Heard Mr.A.S.Mujibur Rahman, learned counsel for the petitioner and Mr.K.Ashok Kumar, learned Central Government Standing Counsel for the respondents.
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5.The learned counsel for the petitioner drew the attention of this Court to Rule 173(8) of the Border Security Force Rules 1969, and submitted that the Courts of inquiry under the Border Security Act will have to afford an opportunity to the Border Security Force personal, who have been charged for misconduct to know about the said charges levelled against him and he should also be allowed to cross examine any witnesses, who have given evidence against him and also allowed to make statements and call witnesses in his defence. In the instant case, according to the learned counsel for the petitioner, admittedly, the court of inquiry has not afforded an opportunity to the petitioner to know about the charges levelled against him and he was also not allowed to cross examine any witnesses, who have given evidence against him and was also not allowed to make statements and call witnesses in his defence.
6.The learned counsel for the petitioner then referred to Rule 48 of the Border Security Force Rules 1969 and submitted that while recording evidence, under Rule 48(2), the witnesses shall give their evidence in the presence of the accused and the accused shall have right to cross examine all witnesses, who have given evidence against him. In the instant case, the 4th respondent has not followed the procedure as contemplated under Rule 48(2) of the Border Security http://www.judis.nic.in 7 Force Rules 1969, by examining the witnesses in the presence of the petitioner and the petitioner was also not afforded the opportunity to cross examine the witnesses.
7.The learned counsel for the petitioner also submitted that the final show cause notice was issued on 26.12.2008 and the same was received by the petitioner only on 07.01.2009. A detailed reply was also submitted by the petitioner to the final show cause notice dated 26.12.2008 by the petitioner on 19.01.2009. According to the learned counsel for the petitioner even without considering the said reply, the 4th respondent has passed the impugned order dated 29.01.2009 dismissing the petitioner from service. It was also submitted that the petitioner is a resident at Nagercoil in Tamil Nadu, whereas the 4 th respondent's Office is at Meghalaya and any communication from Meghalaya will take a very long time to reach Nagercoil, as the petitioner was residing at Nagercoil, at the time, when he received the show cause notice from the 4th respondent. Similarly, for sending communication from Tamil Nadu to Meghalaya, it will take a long time. But without waiting for the reply, which was sent within the 30 days period i.e., on 19.01.2009, the 4th respondent has passed the impugned order dated 29.01.2009. Therefore, according to the learned counsel for the petitioner, the 4th respondent has violated the http://www.judis.nic.in 8 principles of natural justice by not affording sufficient opportunity for the petitioner to raise objections to the show cause notice. Further the 3rd respondent while passing the impugned order dated 02.07.2009 has also not considered all the aforesaid objections in the said order, but simply confirmed the order of the 4th respondent.
8.The learned counsel for the petitioner also drew the attention of this Court in the order dated 18.01.2019 passed by the learned Single Judge of this Court in W.P.(MD)No.7815 of 2009. According to the learned counsel for the petitioner in identical set of facts involving the Border Security Force personnel, where also no sufficient opportunity was given, the learned Single Judge set aside the dismissal order and re-instated the petitioner into service. He referred to 'paragraph 18' of the said order and submitted that in the instant case also the statutory mandate has been clearly contravened by the 4th respondent as well as the 3rd respondent.
9.Per contra, the learned Central Government Standing Counsel for the respondents would submit that the show cause notice was sent by the 4th respondent on 26.12.2008, which was received by the petitioner on 07.01.2009 within 30 days period, but the alleged reply dated 19.01.2009 was not received by the 4th respondent within the 30 http://www.judis.nic.in 9 days period granted to him under the show cause notice, but the same was received only after the impugned order of dismissal dated 29.01.2009 was passed.
10.Further, the learned Central Government Standing Counsel, submitted that several show cause notices were, even earlier, sent by the 4th respondent, seeking for an explanation from the petitioner, as to why he has not reported to duty for a very long time. According to him, all these notices were not properly responded to by the petitioner. According to the learned Central Government Standing Counsel, since the petitioner has not made use of all the opportunities granted to him for giving explanation for his long absence from duty, the petitioner is not entitled to be given a copy of the inquiry report.
III. Discussion.
11.Rule 173(8) of the Border Security Force Rules Act 1969, reads as follows:
173.Procedure of Courts of inquiry:
.....
.....
(8)Before giving an opinion against any person subject to the Act, the Court will afford that person the opportunity to know all that has been stated against him, cross-examine any witnesses who have given evidence http://www.judis.nic.in 10 against him, and make a statement and call witnesses in his defence.
[Provided that this provisions shall not apply when such inquiry is ordered to enquire into a case of absence from duty without authority] Rule 48(2) of Border Security Force Rules Act 1969, regarding the evidence, reads as follows:
“......
(2) The witnesses shall give their evidence in the presence of the accused and the accused shall have right to cross-examine all witnesses who give evidence against him.”
12.As seen from Rule 173(8) of the Border Security Force Rules, it is clear that the Courts of inquiry under the Border Security Force Rules constituted under the Border Security Force Act will have to afford the accused an opportunity to know all that has been stated against him and the accused should also be allowed to cross examine any witnesses, who have given evidence against him and make a statement and call witnesses in his defence. Even though proviso to Rules 173(8) says that Rule 173(8) shall not apply when such inquiry is ordered to enquire into a case of absence from duty without due authority, in the instant case, the petitioner has been granted time to report for duty upto 25.04.2008 by letter dated 03.04.2008. http://www.judis.nic.in 11
13.Thereafter, the petitioner has sought request for extension of leave by his letter dated 10.11.2008, which has not been admittedly, responded by the respondents. Immediately, after the letter dated 10.11.2008, the 4th respondent issued show cause notice dated 26.12.2008. Therefore, it cannot be construed that there was unauthorized absence from duty from 07.12.2004 by the petitioner.
14.That being the case, the proviso to Rule 173(8) shall not apply to the facts in the instant case. Admittedly, the instant case, no inquiry report was furnished to the petitioner nor any date was fixed for inquiry by the 4th respondent. The petitioner was also not allowed to cross examine any witness who have given evidence against him and the petitioner was not allowed to make a statement and call witnesses in his defence.
15.Further as per Rule 48 of the Border Security Force Rules 1969, the witnesses shall give their evidence in the presence of the accused and the accused shall have right to cross examine all the witnesses, who have given evidence against him. The proviso to Rule 48 (2) also makes it clear that whether the statement of any witness at a court of enquiry is available, examination of such a witness may be dispensed with and the original copy of the said statement may be http://www.judis.nic.in 12 taken on record. But a copy thereof shall be given to the accused and he shall have right to cross examine, if he was not afforded an opportunity to cross examine the witness at the court of enquiry.
16.In the instant case, it is not known whether any witness on behalf of the respondents were examined before the court of inquiry. If a witness was examined, a copy of the statement made by the said witness ought to have been furnished to the petitioner. In the instant case, it has not been done. Further the final show cause notice dated 26.12.2008 was sent by the 4th respondent, which was received by the petitioner on 07.01.2009, who is a permanent resident of Nagercoil in Tamil Nadu. The show cause notice was sent from Meghalaya and as rightly submitted by the learned counsel for the petitioner, it will take a long time to be delivered to the petitioner at Nagercoil. Admittedly, the notice was received only on 07.01.2009 that is after 11 days from the date of show cause notice. A detailed reply was sent by the petitioner on 19.01.2009 to the 4th respondent for the said show cause notice dated 26.12.2008. At least, it will take the some number of days i.e., 11 days for the reply dated 19.01.2009 to be delivered on the 4th respondent. If the same number of days is calculated at the earliest, the 4th respondent would have received the reply dated 19.01.2009 only on or about 30.01.2009. But in the instant case, the http://www.judis.nic.in 13 impugned order was passed by the 4th respondent on 29.01.2009 itself, even before waiting for the receipt of the reply from the petitioner. Without considering the reply, the impugned order has been passed by the 4th respondent, which is also confirmed by the 3rd respondent in the impugned order dated 29.01.2009.
17.The learned Single Judge of this Court in identical set of facts involving a Border Security Force personnel by an order dated 18.01.2019 in W.P.(MD)No.7815 of 2009 in the case of R.Vijayan Vs. Union of India and others held that Rule 48 of the Border Security Force Rules 1969, clearly mandates that the witnesses shall give their evidence in the presence of the accused and the accused shall have right to cross examine all the witnesses, who have given evidence against him. In the instant case also the statutory mandate has been contravened by the 4th respondent as well as the 3rd respondent. The learned Single Judge while passing the aforesaid order has also considered the judgment of the Hon'ble Supreme Court in the case of Nawalkishore Sharma Vs. Union of India reported in (2014) 9 SCC 329, regarding territorial jurisdiction of the court. In that judgment, the Hon'ble Supreme Court has held that even if a fraction of a course of action has arisen within the jurisdiction of this Court, writ petition is maintainable. The relevant portion of the said judgment http://www.judis.nic.in 14 of the Hon'ble Supreme Court is extracted here under:
“20. We have perused the facts pleaded in the writ petition and the documents relied upon by the appellant. Indisputably, the appellant reported sickness on account of various ailments including difficulty in breathing. He was referred to hospital. Consequently, he was signed off for further medical treatment. Finally, the respondent permanently declared the appellant unfit for sea service due to dilated cardiomyopathy (heart muscles disease). As a result, the Shipping Department of the Government of India issued an order on 12.4.2011 cancelling the registration of the appellant as a seaman. A copy of the letter was sent to the appellant at his native place in Bihar where he was staying after he was found medically unfit. It further appears that the appellant sent a representation from his home in the State of Bihar to the respondent claiming disability compensation. The said representation was replied by the respondent, which was addressed to him on his home address in Gaya, Bihar rejecting his claim for disability compensation. It is further evident that when the appellant was signed off and declared medically unfit, he returned back to his home in the District of Gaya, Bihar and, thereafter, he made all claims and filed representation from his home address at Gaya and those letters and representations were entertained by the respondents and replied and a decision on those representations were communicated to him on his home address in Bihar. Admittedly, appellant was suffering from serious heart muscles disease (Dilated Cardiomyopathy) and breathing problem which forced him to stay in native place, http://www.judis.nic.in 15 wherefrom he had been making all correspondence with regard to his disability compensation. Prima facie, therefore, considering all the facts together, a part or fraction of cause of action arose within the jurisdiction of the Patna High Court where he received a letter of refusal disentitling him from disability compensation.””
18.Even though the dismissal order was passed by the 4th respondent in Meghalaya and confirmed by the 3rd respondent having Office in Meghalaya, this Court has got jurisdiction to entertain this Writ Petition, since the petitioner is a permanent resident of Nagercoil, Tamil Nadu and the show cause notice as well as the impugned orders were served on him only at his residential address in Nagercoil, Tamil Nadu.
19.For the forgoing reasons, this Court is of the considered view that the 4th respondent as well as the 3rd respondent have violated the statutory procedure as laid down in Rule 173(8) as well as Rule 48 of the Border Security Force Rules, 1969, before dismissing the petitioner from his service. They have also violated the principles of natural justice by not affording the petitioner with sufficient opportunity to defend his case.
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20.In the result, the impugned order dated 29.01.2009 passed by the 4th respondent confirmed by the 3rd respondent by its order dated 02.07.2009 is hereby quashed and the Writ Petition is allowed.
21.As the petitioner has filed an affidavit before this Court on 14.03.2019, stating that he is agreeable to be re-instated without back wages but with continuity of service, consequential and all attendant benefits, the same is recorded and taken on file and accepted by this Court.
22.The respondents shall re-instate the petitioner in service within a period of 6 weeks from the date of receipt of a copy of this order. The petitioner is not entitled to any back wages. But, he will be entitled to continuity of service with all consequential and attendant benefits. No costs. Consequently, connected miscellaneous petition is closed.
14.03.2019 Index: Yes/No Internet : Yes/No das http://www.judis.nic.in 17 To
1.The Secretary, Ministry of Home Affairs, North Block, New Delhi – 110 114.
2.The Director General, Border Security Force, Block No.10, C.G.O.Complex, Lodhi Road, New Delhi – 110 011.
3.The Inspector General, Border Security Force, Head Quarters AM Frontier, Shillong, Meghalaya.
4.The Commandant, 21 Bn, Border Security Force, (Presently at Karumpathamaptti -Post, Kittampalayam – via, Coimbatore District) Praharinagar (upper Damalgiri), Tura, Meghalaya.
http://www.judis.nic.in 18 ABDUL QUDDHOSE,J.
das W.P(MD).No.3041 of 2010 14.03.2019 http://www.judis.nic.in