Jammu & Kashmir High Court
Ram Chander Yadav vs ) Union Of India Through Home Secretary on 14 March, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Serial No. 49
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:- SWP No. 1015/2005
Ram Chander Yadav, aged 40 years, .....Appellant(s)/Petitioner(s)
S/o Sh. Ori Yadav
R/o Village Vistuali Bujurg,
P.O. Belipur, District Gorakhopor (U.P.)
Through: Mrs. Surinder Kour, Sr. Advocate with
Ms. Manpreet Kour, Advocate.
Vs
1) Union of India through Home Secretary,
Ministry of Home Affairs, Govt. of India, New Delhi.
2) Director General of BSF,
CGO Complex, Lodhi Road, New Delhi.
3) Inspector General of BSF,
Frontier Headquarter, Paloura Camp, Jammu.
4) Dy. Inspector General of BSF,
Sector Headquarter, Rajouri.
5) Commandant, 59Bn, BSF C/o 56 A.P.O.
..... Respondent(s)
Through: Mr. Rohan Nanda, CSGC.
Coram: HON‟BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
(14.03.2024) (ORAL)
01. The present instant petition has been filed by the petitioner for seeking the following reliefs:-
i) to quash Order No. Estt-1/COI/59Bn/2001/12866-13066 dated 20.10.2001, issued by the Officiating Commandant 59Bn. BSF, by which the Official Commandant has imposed the punishment of dismissal from service on the petitioner and treated the period of absence w.e.f.
10.07.2001 to 20.10.2001 as „Dies Non‟ and to quash 2 SWP No. 1015/2005 departmental proceedings (if any done) and to quash the Charges (if any framed) against the petitioner and also to quash the Order dated 10.04.2002 by which the Director General of BSF has rejected the representation of the petitioner, by issuance of writ of Certiorari: and
ii) to issue direction to the respondents to consider the case of the petitioner for re-instatement and to allow the petitioner to join and perform his duty on the post of Head Constable on which the petitioner was working prior to his dismissal from service and to release the salary and to give all other consequential benefits to the petitioner for which the petitioner is entitled and also to treat the period from the date of dismissal to the date the petitioner re-joins the duty as „on duty‟ by issuance of writ of mandamus; and
iii) to issue direction to the respondents restraining them to implement the Order No. Estt-1/COI/59Bn/2001/12866- 13066 dated 20.10.2001 and restraining the respondents the respondents to fill up the post of petitioner by making appointment or adjustment and also restraining the respondents to treat the period w.e.f 10.07.2001 to the date the petitioner rejoins the duty as „break in service‟ by issuance of writ of prohibition; and
iv) to issue direction to the respondents to produce all the record of departmental proceedings (if any done) before this Hon‟ble Court, by issuance of writ of mandamus; and
v) to declare the Order No. Estt-1/COI/59Bn/2001/12866- 13066 dated 20.10.2001 and departmental proceedings (if any done) and the Charges (if any framed) against the petitioner and also Order dated 10.4.2002, as unconstitutional, ultra-vires and contrary to the provisions of BSF Act and Rules by issuance of writ of mandamus.
02. The facts under the shade and cover of which the aforesaid reliefs are prayed are that the petitioner came to be appointed as a Constable on 01.07.1983 in the Border Security Force (for short "the BSF") under No. 83002758, and after completing successfully his training course at STC Hazaribag, Bihar, the petitioner during the course of his working came to be promoted as L/Naik in 1990, Naik in 1993 and as a Head Constable in 1998-99. 3 SWP No. 1015/2005
03. It is being next stated that on 26.06.2001, the petitioner applied to the respondents for 60 days leave on account of the ill health of his wife, but, instead was granted 10 days leave whereafter during the course of availing said leave, the petitioner applied for extension of his leave supported by the medical history of his wife and also stated to have submitted a representation before the respondent as well seeking extension of leave in response whereof vide letter dated 06.09.2001, the respondents informed the petitioner that his leave has been rejected and that he should report back to his duty.
04. It is also being stated that in response to the letter dated 06.09.2001, the petitioner, yet again submitted a detailed application to the respondents informing them about the illness of his wife as also his own illness being the disease of Typhoid and, as such, applied for extension of leave.
05. It is being next stated that soon after the letter dated 06.09.2001, the petitioner received a show cause notice No. Estt-I/COI-VPT/59/01/11271 dated 19.09.2001 from the respondents proposing therein the termination of his service and that thereafter the Commandant - respondent 5 herein surprisingly issued Order No. Estt- 1/COI/59Bn/2001/12866-13066 dated 20.10.2001 stating therein that the retention of the petitioner in service is undesirable.
4 SWP No. 1015/2005
06. Aggrieved of the order dated 20.10.2001, the petitioner states to have preferred a writ petition before the Allahabad High Court which, however, came to be dismissed by the said Court on 25.04.2005 on the ground of lack of territorial jurisdiction, wherafter the petitioner filed the instant petition before this Court for the aforesaid reliefs. It is also stated by the petitioner that a representation came to be submitted by him against order dated 20.10.2001 to the Director General BSF which came to be rejected vide order dated 10.04.2002.
07. The petitioner has filed the instant petition, inter alia, on the grounds that the respondents did not follow the mandate of the provisions of the Border Security Force Act, 1968 (for short "the Act of 1968") as also the Border Security Force Rules, 1969 (for short "the Rules of 1969) in the matter and in the process condemned the petitioner un-heard violating the provisions of Article 14 of the Constitution of India inasmuch as the principles of natural justice.
08. Response/counter affidavit to the petition has been filed by the respondents wherein it has been, inter alia, admitted that the petitioner joined the BSF on 01.07.1983 and proceeded on 10 days casual leave w.e.f 28.06.2001 to 09.07.2001 but did not report back to his duty on 5 SWP No. 1015/2005 10.07.2001, whereafter two registered letters dated 19.07.2001 and 10.08.2001 came to be served upon him asking him to report back to his duty to which the petitioner did not respond to, whereafter on account of his absence for more than 30 days, a Court of Inquiry under Section 62 of the Act of 1968 came to be ordered vide order dated 10.08.2001 and upon completion of said Court of Inquiry, the presence of the petitioner was sought to be secured by issuance of an apprehension roll under Section 60/61 of the Act of 1968 in consequence whereof, the petitioner was not apprehended, instead the petitioner submitted an application through Post stating therein that his wife is ill and sought extension of his leave and on receipt of the said letter and after examination of the case in detail, his request for extension of leave came to be rejected as he was found to be a habitual over staying of leave and consequently the petitioner came to be informed about the said rejection vide letter dated 06.09.2001.
09. It is being further in the counter by the respondents stated that the petitioner did not return to his duty in response to letter dated 06.09.2001 inasmuch as in pursuance of show cause notice No. Estt-I/COI-VPT/59/01/11271 dated 19.09.2001, whereunder the petitioner was called upon to submit his reply to the said notice and on account to his failure to respond to the said notice within the stipulated 6 SWP No. 1015/2005 period, the petitioner came to be dismissed from service under Rule 22 read with Section 11(2) of the Rules of 1969 and Act of 1968 respectively read with Rule 177 of the Rules of 1969.
10. It is being further stated that the dismissal of the petitioner came to be ordered, strictly and in conformity with the provisions of the Act of 1968 and Rules of 1969, by a competent person.
Heard learned counsel for the parties and perused the record.
11. Before proceeding to advert to the issues involved in the instant petition, it would be appropriate to refer to the following provisions of the Act of 1968 and the Rules of 1969 being relevant and germane herein:-
Section 11 of the Act of 1968 deals with "Dismissal, removal of reduction by the Director-General and by other officers" and reads as under:
―11. Dismissal, removal of reduction by the Director-General and by other officers.--(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 is 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 7 SWP No. 1015/2005 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.‖ Section 62 of the Act of 1968 deals with the "Inquiry into absence without leave" and reads as under:
―62. Inquiry into absence without leave.--(1) When any person subject to this Act has been absent from duty without due authority for a period of thirty days, a court of inquiry shall, as soon as practicable, be appointed by such authority and in such manner as may be prescribed; and such court shall, on oath or 19 affirmation administered in the prescribed manner, inquire respecting the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or necessaries; and if satisfied of the fact of such absence without due authority or other sufficient cause, the court shall declare such absence and the period thereof and the said deficiency, if any, and the Commandant of the unit to which the person belongs shall make a record thereof in the prescribed manner.
(2) If the person declared absent does not afterwards surrender or is not apprehended, he shall for the purposes of this Act, be deemed to be a deserter.‖ Rule173 of the Rules of 1969 provides a "Procedure of courts of inquiry" and reads as under:-
―173. Procedure of Courts of Inquiry.- (1) The proceedings of a court of inquiry shall not be open to the public. Only such persons may attend the proceedings as are permitted by the court to do so. (2) The evidence of all witnesses shall be taken on oath or affirmation.
(3) Evidence given by witnesses shall be recorded in narrative form unless the court considers that any questions and answers may be recorded as such. (4) The court may take into consideration any documents even though they are not formally proved.8 SWP No. 1015/2005
(5) The court may ask witnesses any questions, in any form, that they consider necessary to elicit the truth and may take into consideration any evidence, whether the same is admissible under the Indian Evidence Act, 1872 (1 of 1872) or not.
(6) No counsel, or legal practitioner shall be permitted to appear before a court of inquiry.
(7) Provisions of section 89 shall apply for procuring the attendance of witnesses before the court 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 against him, and make a statement and call witnesses in his defence.
(9) The answers given by a witness to any question asked before the court shall not be admissible against such a witness on any charge at any subsequent occasion except a charge of giving false evidence before such court.‖ Rule 22 of the Rules of 1969 provides that "Dismissal or removal of persons other than officers on account of mis-conduct" and reads as under:-
"22. Dismissal or removal of persons other than officers on account of mis-conduct -
(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 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 or showing cause.
(2) When after considering the reports on the mis-conduct of the person concerned, the competent authority is 9 SWP No. 1015/2005 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 a Subedar. (4) All cases of dismissal or removal under this rule, shall be reported to the Director General.‖
12. Having regard to the aforesaid provisions of the Act of 1968 and Rules of 1969 and reverting back to the case in hand, the respondents though have admitted to have held a Court of Inquiry against the petitioner, yet have failed to place on record any proof thereof to show that such a Court of Inquiry was held and the petitioner was summoned for participation in the said Court of Inquiry. A closer and deeper examination of the reply/counter affidavit filed by the respondents, however, would suggest that the respondents have not even adhered to the procedure of holding of such inquiry against the petitioner, as is provided under Rule 173 supra of the Rules of 1969.
13. Record, however, tends to show that the respondents before dismissing the petitioner from service have taken 10 SWP No. 1015/2005 recourse to Rule 22 supra of the Rules of 1969 which Rule per se requires the respondents to serve a notice of termination of service upon the delinquent official together with all reports requiring him to submit a reply thereto in writing besides his explanation and defense, if any, and specifically provide therein after recording its satisfaction that his trial is inexpedient or impracticable. The said Rule per se as well seemingly has not been followed by the respondents as the same is evident from the show cause notice proposed punishment issued by the respondents to the petitioner dated 19.09.2001.
The Commandant - respondent 5 herein has issued the impugned order in terms of sub rule (3) of Rule 22 seemingly andmerely on account of the fact that the petitioner has remained absent from duty unauthorizely, as such, his further retention in service undesirable. The dismissal of the petitioner ordered for over staying the leave period of 94 days w.e.f. 10.07.2001 to 20.10.2001 otherwise is found to be shockingly disproportionate to the duration of absence, in that, the petitioner's entire service career for more than 15 years has been overlooked by the respondents so also the promotions he has earned in between.
A reference in this regard to the judgment of the Division Bench of this Court passed in case titled as "Union of 11 SWP No. 1015/2005 India & Ors. Vs Babu Singh" reported in 2013 (2) JKJ 493 would be relevant herein, wherein at para 16 following has been held:-
"Even though the respondent belonged to a disciplined force but that will not dilute the application of principles of natural justice except when it is found that adherence shall be an empty formality which in the present given facts and circumstances of the case, cannot be countenanced."
14. Viewed thus, what has been observed, considered and analyzed hereinabove, the petition succeeds as a consequence whereof the impugned orders dated 20.10.2001 and 10.04.2002 are set-aside with a direction to the respondents to treat the petitioner to be in service and to pay him all consequential benefits to which he would be entitled thereto minus the back wages for the period he remained out of service.
15. Disposed of.
(JAVED IQBAL WANI) JUDGE JAMMU 14.03.2024 Bunty Whether the order is speaking: Yes Whether the order is reportable: Yes