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IN THE HIGH COURT OF DELHI AT NEW DELHI
Suresh Kumar Kait, Neena Bansal Krishna, JJ.
Ex-ct/gd Basavaraj Kotrappanavar – Appellant
Versus
Union of India & Ors. – Respondents
W.P.(C) No. 2692 of 2021
Decided On : 24-02-2023
BSF Act, 1968 - Section 11(2), Section 19(b), Section 48; BSF Rules, 1969 - Rule 22, Rule 177 The petitioner challenged the dismissal order on the grounds of violation of Section 11(2) of the BSF Act and Rule 22 of the BSF Rules. The Court examined the relevant provisions and found that the dismissal order was validly passed by the Commandant, who had the authority to dismiss a person under his command. The Court also found that the procedure prescribed under Rule 22 of the BSF Rules had been followed. The Court concluded that there was no violation of the statutory provisions and dismissed the petition.
Fact of the Case:
The petitioner, a constable in the Border Security Force (BSF), was dismissed from service after overstaying his leave. The petitioner claimed that his absence was due to family circumstances, including the critical condition of his newborn twins and the death of one of the twins. He also claimed that he suffered from poor physical and mental health. The petitioner challenged the dismissal order on the grounds of violation of principles of natural justice and non-compliance with the BSF Act and Rules. The respondents argued that the petitioner had repeatedly overstayed his leave in the past and had refused to respond to notices and show cause notices. The Court found that the petitioner failed to provide sufficient evidence to support his claims and that he had not given any valid reasons for his absence. The Court concluded that there was no procedural deficiency in the dismissal process and dismissed the petition.
Finding of the Court:
The Court examined the petitioner's claims and the evidence presented. It found that the petitioner's own medical certificates contradicted his assertions about his health and the reasons for his absence. The Court also noted that the petitioner had a history of overstaying his leave in the past. The Court concluded that the petitioner had not provided any valid reasons for his absence and that there was no violation of principles of natural justice in the dismissal process.
Ratio Decidendi: The Court held that the petitioner had failed to provide sufficient evidence to support his claims and had not given any valid reasons for his absence. The Court found no procedural deficiency in the dismissal process and dismissed the petition.
Result: The Court dismissed the petition and upheld the dismissal order against the petitioner.
JUDGMENT
Neena Bansal Krishna, J. A writ petition under Article 226 of the Constitution of India has been filed on behalf of the petitioner seeking directions for quashing of the Orders dated 20.03.2019, 14.08.2019/12.09.2019 and 11.02.2020 whereby the petitioner was dismissed from the service and for directions to re-instate the petitioner along with consequential benefits.
2. The factual narration in brief, is that the petitioner was enrolled as a Constable (GD) with the respondents on 15.07.2012 and after the completion of his training, was posted with the 33Bn BSF. On 30.09.2018, the petitioner applied for 30 days of earned leave and 15 days of Paternity leave which was duly sanctioned from 01.10.2018 till 14.11.2018. However, unfortunate turn of family events at home prevented him to join back the battalion, when his sanctioned leave got over on 14. 11.2018. One day before, i.e. on 13.11.2018, his wife who was pregnant and was suffering from anemia and uncontrolled hypertension, went into acute labour pain. She was admitted in the hospital and was blessed with twin children. The medical condition of both the children was not stable and they were shifted to the Intensive Care Unit of the hospital.
3. In the interim, the respondent issued a re-joining Notice dated 28.11.2018 which was received by the petitioner on 07.12.2018. However, because of the circumstances as narrated above, he also started losing his health. He, on receipt of the Joining Notice, telephonically informed the Battalion about his family condition and about his new born children being admitted in the ICU and was allowed some time to join back. However, the medical condition of one child improved while the other child died on 24.12.2018. The petitioner's wife being a psychiatric patient, couldn't bear the loss of the newly born child and completely lost her mental capabilities. Moreover, she remained admitted in the hospital.
4. In the meanwhile, another Joining Notice dated 06.12.2018 was served upon the petitioner on 26.12.2018 but the petitioner had to perform the last rites of his child and also take care of his wife. Since there was no other person in the family to look after them, he was unable to reply to the said Notice.
5. In the meanwhile, the surviving child was detected with Perineal Dermoid Cyst and was advised a surgical operation. The child was discharged on 31.12.2018 and was prescribed medication.
6. The miseries of the petitioner did not end there as on 31.12.2018, the grandfather of the petitioner had a massive cardiac arrest and was admitted in the hospital; he expired on 06.01.2019. Despite the poor health of the petitioner and his family circumstances, he booked his air tickets on 16.01.2019 to resume his duties but because of his poor physical and mental health, he was advised a few days rest by the doctor.
7. The petitioner thereafter got his train tickets booked on 24.03.2019 for 26.03.2019 and reached the Battalion on 28.03.2019 but was not allowed to rejoin his duties by the Authorities. He was informed that he has been dismissed from service vide Order dated 20.03.2019 which was served upon him only on 12.05.2019.
8. The petitioner preferred statutory Appeal challenging the Dismissal Order on the ground that the observations made in the Order were misleading as the petitioner was never served either any Show Cause Notice or the copy of COI proceedings. However, the appeal was rejected vide Order dated 14.08.2019/12.09.2019 stating therein that the Show Cause Notice as well as the copy of Court Of Inquiry (COI) proceedings that were sent to the petitioner, were refused by him.
9. The petitioner then preferred a Representation dated 21.11.2019 before the Director General, BSF which was again rejected by a non-speaking and unreasoned Order dated 11.02.2020.
10. The Orders of dismissal, statutory appeal as well as the Representation have been challenged on the ground that they have been dismissed in violation of principles
Dismissal of a Border Security Force Constable was declared void due to non-compliance with procedural safeguards under the BSF Act, violating constitutional rights to fair hearing and natural justic....
Dismissal without adherence to natural justice principles and statutory procedures is invalid, necessitating reinstatement of the employee.
The main legal point established in the judgment is the importance of discipline in the Border Security Force, the adherence to the BSF Act and Rules in dismissal proceedings, and the limited scope f....
Point of Law : Court regarding the allegation being of overstay in leave, the impugned order of dismissal is held to be unsustainable in law.
Dismissal for desertion disproportionate for long-serving employee overstaying leave due to illness with prior intimation, absent proper inquiry; substitute with deemed discharge upon 20 years pensio....
Dismissal should only be imposed for willful and intentional absence, and the punishment should be proportionate to the gravity of the misconduct.
The main legal point established is that the dismissal of an employee must adhere to the principles of natural justice and be in accordance with the procedural requirements of the relevant laws and r....
The main legal point established in the judgment is that the respondents followed the mandate of the BSF Act, 1968 and the Rules of 1969 in conducting the proceedings against the petitioner, leading ....
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