Article 311 of the Constitution does not apply to members of the Force, and extreme indiscipline and lack of respect for service can justify dismissal.

JUDGMENT

The writ petitioner was recruited as a Constable in the Border Security Force (BSF). The writ petitioner prayed for earned leave for 45 days. He was granted Casual Leave of 15 days with effect from June 22, 2020 till July 9, 2020. Without praying for extension of leave, the writ petitioner continued being on leave. By a notice dated July 16, 2020 issued by the Commandant, the writ petitioner was asked to join his service immediately. It was intimated to him that strict disciplinary action will be initiated against him under the BSF Act and Rules unless he immediately joins his service. Again by a notice dated September 23, 2020 issued by the Commandant, the petitioner was directed to immediately report to duty. In default, it was intimated that strict disciplinary action will be initiated against him. By a further notice dated September 30, 2020, the petitioner was again directed to report immediately and was intimated that disciplinary action will be initiated against him, in default. The petitioner chose not to reply to the said notices. He neither joined his service.

Thereafter a show-cause notice was issued on March 4, 2021 whereby it was recorded that the petitioner has been illegally overstaying his leave with effect from September 13, 2020, without any sufficient cause. As per the enquiry proceeding held in accordance with Section 62 of the BSF Act, it was found that there was no sufficient cause for overstaying the leave. The petitioner’s case was considered to be one of continued illegal absence from duty. It was clearly stated that further continuation of petitioner’s service was considered to be undesirable. Under Rule 177 of BSF Rules and in conformity of Rule 22(2) of the Rules, the petitioner was called upon to show-cause why he should not be dismissed from service.

The petitioner was required to show-cause within 30 days from the date of the receipt of the show-cause notice to make a statement in defence against the proposed dismissal from service. In default, it would be assumed that the petitioner has nothing to urge in his defence against the action proposed to be taken by the authorities. The petitioner chose not to show-cause within 30 days. Thereafter, by an order dated April 10, 2021, the petitioner was dismissed from service with effect from April 10, 2021. His name was struck off from the unit with effect from April 10, 2021. The petitioner made a representation on May 9, 2022 and the said representation was disposed of by an order dated October 21, 2022. By the impugned order dated October 21, 2022, the Inspector General was of the opinion that there is no reason to interfere with the order of dismissal dated April 10, 2021.

Mr. Dutta, learned counsel appearing on behalf of the petitioner submits that the petitioner is governed by Article 311 of the Constitution of India. Under Article 311 (2), no person shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

He refers to various judgments. He refers to a decision reported in (2017) 2 SCC 308 (Allahabad Bank vs. Krishna Narayan Tewari). Next, he refers to a decision reported in AIR 1994 SC 1074 (Managing Director, ECIL, Hyderabad & Ors. vs. B. Karunakar & Ors.). He also refers to a decision reported in (1999) 1 CHN 521 (Arun Kumar Hait vs. State of West Bengal & Ors.). Lastly, he relies on a judgment reported in AIR 2013 SC 1513 (Nirmala J. Jhala vs. State of Gujarat & Anr.). He submits that the petitioner is a holder of a civil post and, therefore, cannot be discharged from service without following Article 311.

Mr. Nandy, learned counsel appears on behalf of the respondent authorities and hands over his written instruction in Court today. He submits that the petitioner was granted 81 days of Earned Leave with effect from June 24, 2022 to September 12, 2022 by cancelling 15 days of Casual Leave tha