Jammu & Kashmir High Court
Suresh Kumar vs Union Of India & Ors on 6 June, 2024
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
SWP No. 228/2005
Reserved on: 15.05.2024
Pronounced on: 06.06.2024
Suresh Kumar
...Petitioner(s)
Through: Ms. Surinder Kour, Sr.Advocate with
Ms. Manpreet Kour, Advocate.
Vs.
Union of India & Ors.
...Respondent(s)
Through: Mr. Vishal Sharma, ASGI with
Mr. Sumant Sudan, Advocate.
.
CORAM: HON'BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
JUDGMENT
1. The petitioner being aggrieved of the Order No.
2034/Estt/Disc/SSFC/04/8660-8777 dated 15.06.2004 issued by
respondent No.5 -Additional DIG Commandant STC BSF Udhampur, in terms whereof the petitioner was dismissed from service and his period of absence w.e.f., 18.02.2004 to 26.04.2004 was treated as 'dies non', approached this Court with this petition under Article 226 of the Constitution of India, for quashing the same.
2. From what has been averred in the petition as well as from the record available on file, it is seen that the petitioner was appointed on 21.01.1999 initially as Cook in the Border Security Force (BSF) and subsequently on 17.04.2003 he was re-designated as Constable and was deputed for undergoing training in October 2003 at STC BSF Page |2 Udhampur; that during training in February 2004, the petitioner claimed to have fallen ill and requested for grant of leave, which was not granted, the petitioner was, however, orally permitted to avail the leave; that the petitioner left on 18-02-2004 and after availing two months leave resumed his duties on 26-04-2004; that the respondents without conducting any enquiry framed charge-sheet on 10-06-2004 under Section 19 (a) of BSF Act. The allegations leveled against the petitioner was that he on 18-02-2004 at about 1500 hours absented himself from STC BSF Udhampur without leave, till 2045 hours on 26-04-2004 and the period of absence was 68 days.
2.1. It is further averred that the respondents have not conducted any enquiry as required under the provisions of BSF Act and Rules and without following the provisions, issued the impugned Order No. 2034/Estt/DISC/SSFC/04/8660-8777 dated 15-06- 2004, vide which the respondents have imposed the punishment on the petitioner "to be dismissed from service" and treated the period from 18-02-2004 to 26- 04-2004 as 'dies non'. The petitioner, in due course, preferred an appeal before the competent authority-DGP BSF against the said dismissal order dated 15.06.2004, however, the same was rejected vide order dated 02.04.2005 allegedly, without assigning any cogent reasons. 2.2. It is contended that the respondents, in the present case, have to conduct enquiry for the allegations/charges framed against the petitioner under Section 19(a) of BSF Act as per the procedure prescribed in BSF Act and Rules, when the petitioner was present in the Unit for facing enquiry. Respondents had to prepare an offence report under the provisions of Rule 43 of BSF Rules. Then, under Rule 45 of BSF Rules, the statement of witnesses were to be recorded and an opportunity was Page |3 to be given to a person to make a statement in his defense and after hearing the charge, the Commandant has to pass any order under Rule 45(2) of BSF Rules. After hearing, the Commandant has to order recording of evidence under Rules 48 of BSF Rules and the Commandant after going through the record of evidence, has power to dismiss the charge, rehear the charge and/or award one of the summary punishments, or try the accused by a Summary Security Force Court, where he is empowered to do so, or apply to a competent officer/authority, to convene a court for the trial of the accused. 2.3. The grievance projected by the petitioner is that the impugned order has been passed in clear and brazen violation of the provisions of BSF Act 1968 and BSF Rules 1969 framed thereunder. It is alleged that the proceedings initiated by the respondent-authorities against the petitioner are violative of his fundamental rights, particularly Article 21 of the Constitution, as his right to life in the form of right to livelihood, was denied to him, inasmuch as, the proceedings before the court of enquiry was conducted without due notice to the petitioner and without affording any opportunity to him and also that the proceedings against him was carried out without following due procedure in accordance with the provisions of the BSF Act 1968 as well as the relevant BSF Rules of 1969.
3. Respondents have filed their reply/counter affidavit, stating therein that the present writ petition is not maintainable, inasmuch as, the petitioner has been removed from the service vide impugned order dated 15.06.2004, based on court of inquiry, conducted by the respondents; that after completion of court of enquiry, a show cause notice was served to the petitioner along-with copy of court of enquiry proceedings Page |4 vide office letter No.2036/Estt/STC/04/5329 dated 15.04.2004; that the show cause notice served to the petitioner was received undelivered through the Post Office; that the petitioner reported to STC Udhampur on 26.04.2004 after absenting himself without leave for a period of 68 days w.e.f 18.02.2004 to 26.04.2004; that the petitioner was served with offence report. The ADIG/COMDT after hearing him under Rule 45 of BSF Act 1968, ordered to prepare Record of Evidence vide Order No.2031/Estt/STC/Disc/ROE/04/6245-48 dated 30.04.2004; that on completion of Record of Evidence, it was decided by the competent authority to dispose of the case by holding Summary Security Force Court trial; that the petitioner was provided a copy of Record of Evidence, charge sheet and other relevant documents for preparation of his defence.
3.1. It was further asserted by the respondents that accordingly, the SSFC trial was held on 15.06.2004 on a charge under Section19(a) of BSF Act for "absenting himself without leave", as such, the petitioner was dismissed from service after being found guilty to the charge vide STC Udhampur Order No.2034/Estt/Disc/SSFC/04/8660-8777 dated 15.06.2004; that the sentence was promulgated to the accused on the same day; that the period of absence w.e.f. 18.02.2004 to 26.04.2004 (68 days) was treated as 'dies non' for all purposes; that the petitioner was struck off from the strength of STC Udhampur w.e.f 15.06.2004(AN); that the petitioner had submitted statutory petition dated 09.08.2004 to the Director General BSF, which after due consideration was rejected, being devoid of merits and the decision was conveyed by FHQ (D&L, Branch) vide No. Page |5 L/No.6/86/2004/CLO(D&L)/BSF/3134-37 dated 02.04.2005 to the petitioner under intimation to STC BSF Udhampur.
4. Ms. Surinder Kour, learned senior counsel appearing for the petitioner, while making submissions, states that the respondents have not followed the provisions of Rule 142(2) of BSF Rules, though the respondents were under an obligation to follow the procedure prescribed for recording the plea of guilty or not guilty. Rule 142(2) of BSF Rules 1969, prescribes as under:-
"If an accused person pleads 'Guilty' that plea shall be recorded as the finding of the Court but before it is recorded, the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty, and of the difference in procedure which will be made by the plea of guilty and shall advise him to withdraw that plea if it appears from the record or abstract of evidence (if any) or otherwise that the accused ought to plead not guilty."
5. In the present case, according to the learned senior counsel for the petitioner, there are no signatures of the petitioner on any minutes of the proceedings of Summary Security Force Court, only the signatures of Commandant are there. Learned counsel further submits that removal from services is a major punishment and can be imposed only after conducting of regular departmental enquiry.
6. Learned counsel for the respondents, ex-adverso, vehemently argued that the present writ petition is not maintainable, inasmuch as, the petitioner has been removed from the service vide impugned order dated 15.06.2004. He submits that the petitioner absented himself without leave from the Subsidiary Training Centre Udhampur on Page |6 18.2.2004. The petitioner was served with three notices at his home address with the direction to report at STC Udhampur, vide registered letters No.2460-64 dated 21.02.2004, No. 3445-49 dated 12.03.2004 and No. 3677-81 dated 16.03.2004, but the petitioner neither reported nor responded to these letters. After completion of 30 days of his absence, a Court of Inquiry as per Section -62 of BSF Act 1968 was ordered vide Order No. 2636/Estt/STC/Disc/04/3807-11 dated 18.03.2004, which was completed by the Presiding Officer on 10.04.2004. On completion of Court of Inquiry, the petitioner was served with Show Cause Notice through registered post vide letter No. 2036/Estt/STC/04/5329 dated 15.04.2004. Copy of Court of Inquiry was also sent along with the Show Cause Notice to the petitioner. The petitioner reported back to STC BSF Udhampur on 26.04.2004 (AN) after absenting himself without leave for 68 days (w.e.f. 18.02.2004 to 26.04.2004). The petitioner was heard by ADIG/COMDT on 29.04.2004 under Rule 45 of BSF Rules and remanded for preparation of Record of Evidence.
7. Accordingly, the Record of Evidence, ordered on 30.04.2004 vide Order No. 2031/Estt/STC/Disc/ROE/04/6245-48, was prepared. While conducting the Record of Evidence, the provisions of relevant BSF Rules were complied with in all respects and the petitioner was present throughout the Recording of Evidence and was also given opportunity to cross examine the prosecution witnesses, as well as, to produce any witnesses/documents in his defense, in accordance with Rule 48 of BSF Rules and the same was availed by the petitioner also. On perusal of the evidence recorded in the Record of Evidence, the Competent Authority decided to try the petitioner by a Summary Security Force Court on Page |7 15.06.2004. Accordingly, the Summary Security Force Court trial was held on 15.06.2004. It is further contended that before the trial, the petitioner was given copies of Record of Evidence and copy of charge sheet, thereby complying with all the relevant provisions of BSF Act and Rules framed thereunder, in letter and spirit.
8. Learned counsel for the respondents further submits that during the Summary Security Force Court proceedings, the petitioner pleaded "Guilty" to the charge framed against him and the provisions of Rule 142(2) of BSF Rules 1969 were complied with. After complying with the provisions of Rule 151 of BSF Rule, the SSFC awarded sentence of dismissal from service which commensurated with the offence committed by the petitioner as he indulged in indiscipline while undergoing basic training of Constable and was not likely to become a good border man. The sentence was promulgated on the same day vide No. 2034/Estt/Disc: SD/STC/8657 dated 15.06.2004. The petitioner had submitted a statutory petition dated 09.08.2004 to the Director General BSF, which after due consideration was rejected being devoid of merit and was conveyed to the petitioner vide Force HQ (D&L Branch) L/No.6/86/2004/CLO(D&L)/BSF/3134-37 dated 02.04.2005 under intimation to STC BSF Udhampur.
9. Heard learned counsel for both the sides, perused and considered.
10. Learned senior counsel appearing for the petitioner, during the course of arguments, was put a query as to whether the order, by which the statutory appeal/petition against the termination order of the petitioner has been rejected, has been challenged? Learned senior counsel, in reply, submits that there is no need to challenge the order because the Appellate Authority has upheld the order of dismissal on the same basis Page |8 as that of order dated 15-06-2004, by which the petitioner has been dismissed from service and which has been challenged by the petitioner through this petition, on a number of grounds. The appeal/statutory petition has been rejected without assigning any reasons. Moreover, even if the petitioner has not filed the appeal even then the writ petition is maintainable because the alternative remedy is not an absolute bar to admissibility of writ petition. The Apex Court has held that the High Courts should exercise their discretionary jurisdiction inspite of availability of alternate remedy where the authority has acted in violation of principle of natural justice or for enforcement of fundamental rights. To substantiate this argument, learned senior counsel for the petitioner has relied upon some judgments.
11. In Zaffar Ullah Rather Vs. State of J&K & Ors., reported 2011 Legal Eagle (J&K) 332, this Court, on the maintainability of the writ petition, when the contesting respondent in the said case had raised the issue that the petitioner had approached this Court straightway without availing the statutory remedy of appeal against the authorized officer's order, which was available to him, observed that the argument of the counsel for the respondent, 'has no merit, inasmuch as, the authorized officer, being himself the prescribed Appellate Authority, the petitioner had no forum available to him where he could exercise his Right of Appeal under Section 303 of the Municipal Act and in that view of the matter, the petitioner's Writ Petition cannot be held non-maintainable. Even otherwise, the availability of alternative remedy may not always operate as bar to the exercise of extra-ordinary writ jurisdiction, if the Court was, otherwise satisfied that the facts and circumstances of the case warranted exercise of such jurisdiction, to advance the cause of justice.' Page |9 In "L. Hirday Narain Vs. Income Tax Officer" reported as AIR 1971 SC 33, the Supreme Court of India has held that once the writ petition is entertained and is heard on merits, the writ petition cannot be rejected on the ground of availability of alternative remedy.
12. Petitioner, in the present case has also claimed to have filed rejoinder, wherein it has been specifically mentioned that the respondents have not followed any provisions as required under the provisions of BSF Act and Rules, as no offence report was prepared, neither the petitioner was heard by the Commandant, nor any record of evidence was recorded in presence of the petitioner, nor any proceedings under Summary Security Force Court has been conducted. The petitioner never pleaded guilty to any charge, neither the respondents have followed the provisions of Section 62 of BSF Act, nor any court of enquiry was conducted, prior upto the date when the petitioner has joined. Once the petitioner joined on 26-04-2006, the respondents were to conduct and start the proceedings of enquiry as prescribed under the provisions of Chapter- VII Investigation and Summary Disposal of BSF Act, before conducting proceedings by Summary Security Force Court.
13. The petitioner has specifically mentioned that he has never pleaded guilty to the charge. The petitioner has also mentioned that the respondents have already imposed the punishment of 28 days rigorous imprisonment and thereafter the respondents have dismissed the petitioner, while under the provisions of Rule 51 of BSF Rules, if the Commandant after going through the record may find that the accused has been tried by the Summary Security Force Court then he has to apply to a competent authority to convene a Court for the trial of the accused and in the present case, the respondents have already imposed P a g e | 10 the punishment of 28 days and the respondents cannot punish the petitioner twice for the same charge. Moreover, the petitioner has also taken a ground that the petitioner is employee of 60 Bn and was under
the control and jurisdiction of Commandant of 60 Bn but the punishment has been imposed by the DIG Commandant STC Udhampur, who is not competent authority, while it is only the Commandant of the petitioner who is competent authority to try the petitioner.
14. Ms. Surinder Kour, learned senior counsel appearing for the petitioner, further argued that the petitioner had been imposed inappropriate punishment, as his removal from service is disproportionate to the alleged charge of being unauthorized absent for the period of just 68 days. She has referred to and relied upon the judgments passed by the Apex Court in cases titled 'Bhagwan Lal Arya Vs. Commissioner of Police, Delhi and Ors.' reported as 2004 SCSR 632 and 'Union of India and Ors. Vs. Giriraj Sharma' reported as AIR 1994 SC 215.
15. The petitioner had been removed from the service vide impugned order No. 2034/Estt/Disc/SSFC/04/8660-8777 dated 15.06.2004 issued by respondent No.5 -Additional DIG Commandant STC BSF Udhampur, for being unauthorizedly absent for the period w.e.f. 18.02.2004 to 26.04.2004, which was treated as 'dies non', and the petitioner had filed this Writ Petition being aggrieved of that order, whereby he was removed from the rolls of his service. The petitioner, in the meanwhile, had also filed an Appeal before the Director General of BSF against the impugned order and that statutory petition, filed on 09.08.2004, had been rejected by the Director General of BSF and the same was conveyed to the petitioner on 02.04.2005.
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16. Since, the impugned order, whereby the petitioner had been removed from service, had been challenged invoking the writ jurisdiction of this Court and also through statutory petition, filed before Director General of BSF, the contention of learned senior counsel and the law laid down by the Courts, which was relied upon by the learned senior counsel for the petitioner, shall be of no help to the petitioner, as the statutory efficacious remedy of Appeal was already availed by the petitioner, and had that not been availed and only the writ petition would have been filed, perhaps the contention of learned senior counsel could be of some help for adjudication of the matter through the medium of this Writ Petition. Despite having been informed by the respondents, the petitioner has chosen not to assail/challenge the order passed by the Director General of BSF in the statutory petition, and the contention of learned senior counsel that there was no requirement of challenging that order, is not tenable.
17. The impugned order having been merged with the order passed in the statutory petition filed before the Director General of BSF, that order should have been challenged either separately or by amendment of this Writ Petition, which has not been done by the petitioner. Therefore, without going into the merits of the present Writ Petition, the same is found not to be maintainable, for the reason that the petitioner had already availed the statutory efficacious remedy under the relevant provisions of BSF Act.
18. Viewed thus, the Writ Petition on hand is held to be non-maintainable and, is, accordingly dismissed. The petitioner, however, shall be at liberty to work out legal remedy available to him.
19. There shall be no order as to costs.
( M. A. CHOWDHARY ) JUDGE Srinagar 06.06.2024 Muzammil. Q Whether the Judgment / Order is Reportable: Yes / No