IMPORTANT POINT
After introduction of Rule 20 in BSF Rules it cannot be validly contended that no enquiry need be held while exercising the power under Section 11(2) of BSF Act for dismissal of the constable. In the present case the prescribed procedure was followed before passing the dismissal order and the same was wrongly held to be illegal by Courts below.

JUDGMENT

Nanavati, J.-The respondent, a constable in the BSF, filed a suit for declaration that the order of his dismissal from service was illegal and void and for a mandatory injunction directing the appellants to take him back in service. The suit was partly decreed. The declaration as prayed for was granted but mandatory injunction was refused. Both the parties filed appeals against the said judgment. The appeal filed by the respondent was allowed and that of the appellant was dismissed. The appellant then filed a second appeal in the Delhi High Court but that was also dismissed. The appellant has therefore filed this appeal after obtaining special leave.

2. The relevant facts are that the respondent was enlisted as a constable in the BSF. On 21.12.83 he was found absent in the Coy Roll Call. He was also not found in the lines. He remained absent thereafter also. So on 21.1.1984, a notice was given to him to report for duty forthwith but he did not turn up. One more notice was given to him but there was no response from him. Thereafter, an enquiry was ordered under Section 62 of the BSF Act. Ultimately he was deemed to be a deserter. On 20.4.1984 because of his continuous absence, a show cause notice was given calling upon him to show cause why he should not be dismissed as his further retention in service was considered undersirable. The respondent did not reply to the said notice. Therefore, on 5.5.1984 Commandant Vikram Singh passed an order dismissing him from service. An appeal was filed against that order but that was rejected.

3. On 6.11.1986 he filed a suit challenging the said order of dismissal. His case was that on 18.12.1983, sometime before mid-night, while he was proceeding to perform Sentry duty he was given pan by his colleague. After eating it, he felt giddy and became semi-conscious. He was taken to the Sub-Inspector who thought that he had consumed liquor. He was man handled by that S.I. and thrown out of the barrack. Some unknown persons took him to his native place. He thereafter suffered from mental illness and could not resume his duty nor could he reply to the notice dated 20.4.1984. He recovered after a year and then he came to know that an order dismissing him was already passed. The order of dismissal was challenged on the ground that it was not within the competence of the Commandant to pass such an order and that the penalty of dismissal could not have been imposed without holding an enquiry in the manner prescribed by the Act and the Rules. The appellant defended the action on the ground that after the respondent was deemed to be a deserter his service came to be terminated in exercise of the power available under Section 11 of the Act and that according to Rule 177 of the BSF Rules the Commandant is a competent officer for taking action under Section 11(2).

4. The learned trial Judge held that after a person is deemed to be a deserter he has to be tried by a Security Force Court under Section 19 of the Act after he surrenders and is arrested and only thereafter penalty can be imposed upon him. The learned Judge also held that the impugned action cannot be supported under Section 11(2) of the Act as the power under that section can be exercised by the Director General or the prescribed officer and there was nothing on record to show that Commandant Vikram Singh was competent to pass the impugned order. The learned Judge also held that power under Section 11 could be exercised only after holding an enquiry in accordance with the principles of natural justice. According to the learned Judge, as neither any court was constituted as required for awarding punishment for the offence alleged to have been committed by the respondent nor any chargesheet was issued as required by the prescribed procedure, the order of dismissal has to be regarded as illegal. The learned Judge did not grant the mandatory injunction as he was of the opinion that the respondent had to first surrender and then it was open