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2014 Supreme(Cal) 818
CALCUTTA HIGH COURT
Sambuddha Chakrabarti, J.
Umesh Singh – Petitioner
Versus
Union of India and Others – Respondents
W.P. No. 13333 (W) of 2004
Decided On : 28-10-2014
For the Petitioner: Achin Kumar Majumder.
For the Respondent: Asim Kumar Dutta.
The authority's power to retire a member of the Force under Rule 26 of the Border Security Force Rules, 1969, must be exercised in accordance with the principles of natural justice and the purpose of the rule, which is to remove unsuitable persons from the Force, not to punish them for past misconduct.
Headnote:
BORDER SECURITY FORCE RULES - RULE 26 - RETIREMENT FROM SERVICE - SUITABILITY - ADVERSE ENTRIES IN SERVICE RECORD - PAST PUNISHMENTS - CONSIDERATION - VALIDITY: The Border Security Force Rules, 1969, Rule 26 empowers the authority to compel a member of the Force to retire prematurely on the ground of unsuitability, but appropriate opportunity must be given to the delinquent to explain his conduct in reply to the notice. Adverse entries in the service record or past performance, including punishments awarded by the employer, are valid considerations for imposing further punishment if the employee commits any further mistake. However, when there is no such occasion, merely because the employee was punished in the past for certain offenses or misconducts cannot be a valid ground for not holding him suitable to be retained in the Force. The purpose of Rule 26 is to enable the authority to remove unsuitable persons from the Force, not to punish them for past misconduct.
Fact of the Case:
The petitioner, a constable in the Border Security Force (BSF), was served with a show-cause notice proposing his retirement from service under Rule 26 of the Border Security Force Rules, 1969, due to punishments and adverse entries in his service book. The petitioner submitted a detailed reply disputing the allegations, but it was found unsatisfactory by the Commandant and he was retired from service. The petitioner challenged the order in a writ petition, which was allowed by a learned Single Judge, directing the authority to consider the reply and pass a reasoned order. The authority, after a hearing, confirmed the earlier order of retirement.
Finding of the Court:
The court found that the authority did not give any detailed reason why the petitioner's reply was not satisfactory. The order merely summarized the points raised by the petitioner without considering or rejecting them with reasons. The court also found that the only reason that appeared to have gone against the petitioner was that he had committed certain mistakes in the past for which he was adequately dealt with and punished.
Issues: 1. Whether the authority's order of retirement was valid in light of the petitioner's reply to the show-cause notice? 2. Whether the authority could invoke Rule 26 to retire the petitioner based on his past punishments?
Ratio Decidendi: 1. The authority's order of retirement was not valid as it did not provide any detailed reason why the petitioner's reply was not satisfactory and merely summarized the points raised by him without considering or rejecting them with reasons. 2. The authority could not invoke Rule 26 to retire the petitioner based on his past punishments as there was no occasion for such action and the purpose of Rule 26 is to enable the authority to remove unsuitable persons from the Force, not to punish them for past misconduct.
Final Decision: The court allowed the writ petition, set aside the authority's order of retirement, and directed the petitioner to be reinstated in service with full back wages.
Sambuddha Chakrabarti, J.
1. The petitioner worked as a constable of the Border Security Force (BSF, for short). He joined the Force on February 15, 1990. On July 06, 1996, he was served with a notice of show-cause whereby the Commandant of the concerned Battalion, i.e. the respondent no. 4 herein at which he was working at that point of time had informed him that because of the punishments awarded to him and the adverse entries recorded in the petitioner's service book the authority concerned was of the opinion that he was unsuitable for further retention in the Force and proposed to retire him from service in terms of Rule 26 of the Border Security Force Rules, 1969. In terms of Rule 26 he was given 15 days' time to give a reply to the said notice.
2. The petitioner submitted a detailed reply on July 26, 1996 disputing the allegations made in the show-cause notice. The reply, however, was not found to be satisfactory to the respondent no. 4 and by Order dated August 10, 1996 he was retired from service with effect from August 31, 1996.
3. This order was challenged by the petitioner in an earlier writ petition being C.R. No. 13826 (W) of 1996. By an Order dated July 17, 2002 a learned Single Judge of this Court had, inter-alia, set aside the impugned order dated August 10, 1996 and directed the authority to consider the reply to the show-cause notice by affording adequate opportunity of hearing to the petitioner and by passing a reasoned order. While disposing of the earlier writ petition it was observed that even if Rule 26 of the Border Security Force Rules empowers the authority to compel a member of the Force to retire prematurely on the ground of unsuitability, appropriate opportunity was to be given to the delinquent to explain his conduct in reply to the notice.
4. Pursuant to the said order the respondent no. 4 gave a hearing to the petitioner and passed an order on February 11, 2003 confirming the earlier stand taken by the respondent no. 4 in the order dated August 10, 1996.
5. This subsequent order passed by the respondent no. 4 is the subject-matter of challenge in the present writ petition.
6. One observation made in the order impugned in the present writ petition is both confusing and baffling. The respondent no. 4 while passing the subsequent order had observed that the petitioner's reply to the show-cause notice was not received by the respondent no. 4 within the stipulated time and then the Commandant of the concerned Battalion had retired him as per the provisions of the Act. It appears that the Commandant had held (Annexure - P/3 to the writ petition) that "I am not satisfied that the explanation offered by him/it is presumed that you have nothing to urge in your defence in this regard." Again, in the previous paragraph the authorities had recorded "your reply to the said show-cause notice has been perused by me/no reply received from your side."
7. This raises an unfortunate presumption that orders in different forms were kept ready and in regular course they were to be issued after striking out the inapplicable portion. It is time for us to appreciate that when it comes to making a man lose his livelihood and throwing him out of his employment a more meticulous application of mind is the least that can be expected by the authorities. Such pre-arranged format of letters are not to be expected to be used to tell a man that his services are not required.
8. Mr. Dutta, the learned Advocate appearing for the respondents also did not appreciate the practise. He says that even if the authorities have a very good ground to proceed against an employee such pre-arranged format should not have been used because there is always a lurking suspicion of non-application of mind by the authorities concerned.
9. Coming to the merits of the case I do not find that the respondent no. 4 has given any detailed reason why he considered the reply given by the petitioner to be not satisfactory. The order impugned can be divided
