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High Court Of Delhi
SUDESH KUMAR - Appellant
Versus
UNION OF INDIA - Respondent
Civil 2412 of 1995
Decided On : 05/16/1997
BORDER SECURITY FORCE ACT, 1968 - SECTION 11(2) - SECTION 62 - RULE 173 - RULE 177 - RULE 22 - Dismissal from service - Unauthorized absence - Court of Inquiry - Show cause notice - Independent and separate power - Penalty - Interpretation of provisions - Legal principles governing dismissal of a member of the Border Security Force.
Fact of the Case:
Petitioner, a Constable in the Border Security Force, was dismissed from service for unauthorized absence without leave. He challenged the dismissal order, arguing that a Court of Inquiry should have been held before dismissing him and that the dismissal was a penalty for misconduct, which could not be imposed without following the relevant provisions of the Act.
Finding of the Court:
The Court held that the dismissal order was passed by way of penalty for misconduct of absence from duty without leave, and not in exercise of the independent and separate power conferred under Section 11(2) of the Act. The Court found that the Commandant had recorded his satisfaction that the petitioner was absent without leave without any reasonable cause, which could not have been done without complying with the provisions of law.
Issues: 1. Whether the dismissal order was passed in exercise of the independent and separate power conferred under Section 11(2) of the Act or was an order passed by way of penalty for misconduct of absence from duty without leave? 2. Whether a Court of Inquiry should have been held before dismissing the petitioner?
Ratio Decidendi: The Court relied on the Supreme Court decisions in Chief of the Army Staff and others v. Major Dharam Pal Kukrety, Sri Gouranga Chakraborty v. State of Tripura and another, and Union of India and others v. Ram Pal to hold that an order of dismissal by way of discharge, not by way of penalty for misconduct of absence from duty without leave, can be passed on the ground that the conduct of the individual had rendered his retention in service undesirable. However, if the order of dismissal is passed by way of penalty for misconduct of absence from duty without leave, power under Section 11(2) cannot be exercised since the same has to be done only on complying with the relevant provisions of the Act and on proof of misconduct of absence from duty without leave after holding due inquiry.
Final Decision: The Court allowed the writ petition, set aside the impugned dismissal order, and directed the respondents to allow the petitioner to join his duty forthwith with all consequential benefits.
( 1 ) ORDER, Annexure P-3/a, dated 27. 1. 1993 dismissing the petitioner from service with effect from 16th January, 1993 is under challenge in this petition.
( 2 ) THE petitioner while posted as a Constable in Border Security Force proceeded on 30 days Earned Leave w. e. f. 9th May, 1992. After availing of leave he did not report for duty though he ought to have reported for duty on 9. 6. 1992. Petitioner s case is that he had applied for extension of leave due to his sickness whereas respondents case is that extension of leave was not sought. Respondents version that on 16. 7. 1992 an intimation was sent to the petitioner to rejoin duty immediately, failing he was apprised that disciplinary action would be taken against him. Thereafter a Court of Inquiry under Section 62 of the Border Security Force Act, 1968 was ordered to inquire into the absence of the petitioner, but without awaiting the outcome thereof, it appears that the Deputy Inspector, Border Security Force, Jammu proposed to dismiss the petitioner from service administratively for which show cause notice (annexure P-3) was sent to the petitioner under registered post, which reads:
"you have been absent without leave with effect from 9th June 1992. I am of the opinion that because of this absence without leave for such a long period, your further retention in service is undesirable. I, therefore, propose to dismiss you from service. If you have anything to urge in your defence or against the imposition of this penalty, you may do so before 14 January 1993. In case no reply is received by that date, it would be inferred that you have no defence to put forward. "
( 3 ) PETITIONER state that a reply was sent by him on receipt of the aforementioned show cause notice explaining the cause of his delay that he was still bed-ridden and sought extension of leave but the Commandant on 7. 1. 1993 proceeded to pass in the impugned order annexure P-3/a, which reads:
"whereas, I have personally gone through the case of absence without leave in respect of No. 85005244 Const (Dvr) Sudesh Kumar of this HQ. He was given an opportunity to show cause vide this HQL/no. 0124/estt. I/leave/92/3029 dated 30 Dec. 92 without any reasonable cause and his further retention in the service is undesirable. I, therefore, dismiss him from service w. e. f. 16 Jan. 1993 (AN) under BSF Act, 1968 read with Rule 177 of BSF Rule 1969. The period of unauthorised absence from duty from 9 June 1992 to 16 Jan. 1993 be treated as `dies non . The individual is struck off the strength of this HQ w. e. f. 16 Jan. 1993 (AN ). 2. A sum of Rs. 329. 82 (Rupees three hundred twenty nine and paise eighty two only) as Govt. dues on account of deficient kit/clothing items be recovered from his pay and allowances due/payable to him. "
( 4 ) THE aforementioned order is under challenge on the ground that before reaching the conclusion that the petitioner was unauthorisedly absent, it was mandatory to hold a Court of Inquiry in terms of Section 62 of the BSF Act read with Rule 173 of the Border Security Force Rules. Only on Court of inquiry declaring the absence to be unauthorised that action could be initiated against the petitioner for being committing an offence under Section 19 (a) or (b) of the Act. There has been gross violation of the provisions of the Act by dismissing the petitioner by resorting to administrative action.
( 5 ) RESPONDENTS in their reply filed on the affidavit of K. S. Vohra, Deputy Inspector General, BSF. Jammu stated that when the petitioner failed to resume duty after availing 30 days earned leave, due intimation was sent on 16. 7. 1992 to rejoin duty forthwith. Petitioner did not respond. As such a Court of Inquiry under Section 62 of the Act was ordered to inquire into the absence of the petitioner. he was served with a show cause notice dated 30. 12. 1992 to give reasons in his defence on or before 14. 1. 1993, as it was proposed to terminate his service for his long abs
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