Document Fragment View

Matching Fragments

5. While refuting the aforesaid allegations, counsel appearing for the respondents submitted that the respondents have been empowered under the provisions of the Act to proceed as against a person and also to dismiss him from service who is in unauthorised absence, after complying with the provisions of Section 11(2) of the BSF Act read with Rule 177 of the BSF Rules and, therefore, since the procedure laid down therein was fully complied with, no grievance could be raised by the petitioner as against the action taken by the respondents.It was also submitted that the petitioner did not submitted that the petitioner did not submitted any reply to the show cause notice in spite of receipt of the same and if he was in any way prejudice for alleged non-submission of any document, he could have definitely asked for the same when the same would have been supplied to him to enable him to submit an effective reply to the show cause notice and having not done so, he cannot claim any violation of the principles of natural justice particularly when no prejudice is caused to the petitioner.

6. In the light of the aforesaid submissions of the counsel appearing for the parties, I have examined the records as also the various decisions relied upon by the counsel appearing for the parties.

7. The records placed before me indicate that the petitioner, without any information and permission from the competent authority, left his unit on 10.4.98. Since the petitioner was found absent without leave w.e.f. 10.4.98 from the unit line, information was sent to the concerned police station, on 13.4.98 for registering a first information report. An intimation was also sent to the petitioner on the same date i.e. on 13.4.98 at his home address bringing to his notice that he had absented from duties without leave/authority w.e.f. 10.4.98. By the said communication the petitioner was asked to report immediately for duties, failing which, it was brought to his notice that failing which, it was brought to his notice that strict disciplinary action would be taken against him as per provisions of BSF Act and Rules. The Aforesaid communication was sent to the petitioner by registered letter at his home address and in proof thereof, the respondents have placed before me the register showing such dispatch of the communication through' registered post. Before issuance of the impugned order, the respondents also issued a show cause notice to the petitioner as envisaged under the provisions of Section 11(2) of the BSF Act Read with Rule 22 of the BSF Rules. It was recorded in the said notice that the petitioner was absent from duties without leave, w.e.f. 10.4.98 and upon consideration of the reports relating to his absence, the competent authority was satisfied that his trial by Security Force Court was inexpedient and impracticable and was also of the opinion that his further retention in service was undesirable. By the said notice the petitioner was asked to show cause as to why he should not be dismissed from service. The said letter was also sent to the petitioner under registered post at his home address, in support of which the Registered is placed on record indicating such dispatch by registered post to the petitioner.

10. It was contended by the counsel appearing for the petitioner that when unauthorised absence is considered as a misconduct under the BSF Act and Rules framed there under, the entire procedure laid down for a trial to try an offence for misconduct is always required to be complied with and followed and the summary procedure as prescribed under Rule 22 of the BSF Rules cannot be restored to by the respondents. In my considered opinion, the said contention cannot be upheld. The power given to the competent authority under Section 11(2) of the BSF Act empowers the competent authority, namely, the Commandant to dismiss or remove from service any person under his command other than an officer or subordinate officer. The said power read with Rules 22 and 177 of the said Rules is an independent power which can be validly exercised by the Commandant as 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 aforesaid conclusion is by now a settled law in view of the decision of the Supreme Court in GAURANGA CHAKRABORTY VS. STATE OF TRIPURA AND ANOTHER, , in the said decision, the Supreme Court held that the services of the enrolled persons under the BSF Act are governed by the provisions of the Act as well as the Rules framed there under and 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 and such 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 aforesaid position settled by the Supreme Court was again reiterated in the decision of Union of India & and Others vs. Ram Phal reported in 1996 (2) SLR 297. In the aforesaid discussion, the Supreme Court held that the when a show cause notice is issued in terms of Section 11 of the BSF Act read with Rules 22 and 177 of the BSF Rules, no further enquiry was required to be held and when the personnel did not reply to the notice and there was no denial of the allegations and there was no request to hold an enquiry, then it was not incumbent upon the Director General to appoint an enquiry officer to conduct an enquiry in the manner prescribed by Rule 21. The prescribed procedure was followed before passing the dismissal order and, therefore, the order of dismissal was upheld by the Supreme Court in the aforesaid decision.

12. In Gouranga chakraborty's case (supra) it was held by the Supreme Court that the services of the enrolled persons under the BSF Act are governed by the provisions of the Act as well as the Rules framed there under and 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, is an independent power which can be validly exercised by the Commandant as a prescribed officer after complying with the procedure therefore. Therefore, the power of the Commandant to take resort to the power vested on him under Section 11(2) of the Act read with Rules 22 and 177 of the Rules, cannot be questioned, which is an independent power and could be exercised by the competent officer when such action is called for in a particular case. In the present case, the competent authority has recorded its satisfaction and opinion in the show cause notice itself that the petitioner was unauthorisedly absent from duty w.e.f. 10.4.98 and that the trial by the Security Force Court was inexpedient or impracticable and that his further retention in service was undesirable. The pre-condition as mentioned in Rule 22 of the rules is, therefore, satisfied in the present case. The show cause notice was sent to the petitioner at his home address through registered post which is proved by the records. The petitioner also did not submit any reply to the aforesaid show cause notice nor requested for to hold enquiry/trial. He also did not submit any request for furnishing documents to him. The report, to which mention is made in the show cause notice, was only in respect of the fact that the petitioner was on unauthorised leave. Petitioner himself knew about the said fact that he had not applied for any leave nor the same was granted in his favor. Therefore, even if the report was not submitted to him, no prejudice was caused to him. However, the show cause notice indicates that a copy of the report was enclosed along with the show cause notice which was sent to him. Therefore, all the contentions of the counsel appearing for the petitioner are found to be without any merit. The precondition for making out a case under Section 11 of the BSF Act read with Rules 22 and 177 of the BSF Rules have been satisfied and were complied with and the entire procedure as laid down therein was followed by the respondents and, no prejudice was caused to the petitioner in any manner, and none was pointed out by him before the competent authority, at any state, and, therefore, no interference is called for to the action of the respondents.