The main legal point established is that the dismissal of a member from service under Section 11(2) of the BSF Act, 1968 can be justified based on repeated instances of indiscipline and offenses, considering the aim of maintaining discipline in the force.

JUDGMENT

Sameer Jain, J. - Instant writ petition has been filed by the petitioner assailing the action of the respondents of dismissing him from service and praying for direction to the respondents to allow the petitioner to resume duty without any interruption till the date of superannuation alongwith all consequential benefits in the form of promotion, seniority with arrears of pay and interest.

2. as per petitioner, he was enrolled in Border Security Force as Constable (GD) on 11/04/1987 and after completion of basic training at 25th Bn. BSF, he joined in 3rd Bn. BSF on 22/04/1988 and was further posted to 94th Bn. BSF on 20/11/1992.

3. The contention of the petitioner is that in terms of Section 19 of the BSF act, 1968, if for the sake of arguments, it is assumed that the petitioner was absent from duty without leave and without explanation, then also at the maximum three years' punishment can be imposed. Further, in terms of Section 62 of the act of 1968, enquiry has to be conducted for imposing penalty which in the case of the petitioner has not been conducted and the petitioner straightway has been dismissed from service.

4. Per-contra, learned counsel for the respondents submitted that as per preamble of BSF act, 1968, the act has been constituted and regulated for ensuring the security of Borders of India and for matters connected therewith. Despite being member of uniformed and disciplined force, the petitioner was found to be an undisciplined soldier and habitual of misrepresenting as well as committing various offences. It is further contended that the petitioner was awarded as many as seven punishments under Sections 19 and 40 of the BSF act from time to time for the various offences committed by him within a short span i.e. from 1991 to 15/04/1999 the details of which have been pointed out in Para II of the reply to writ petition. The absence of leave by the petitioner from time to time was duly admitted by him and he has undergone punishment in the form of imprisonment. Learned counsel for the petitioner has drawn attention of this Court towards Section 11(2) of the BSF act, 1968 which provides as under:-

"11. Dismissal, removal or reduction by the Director General and by other officers. -

(1) ......

(2) an officer not below the rank of Deputy Inspector General or any prescribed officer may dismiss or remove from the service any person under his command other than an officer or a subordinate officer of such rank or ranks as may be prescribed."

5. It is thus submitted by learned counsel for the respondents that as per the said provision, if the competent authority for the justifiable reasons feels appropriate, the offender can be given appropriate punishment which may lead to his dismissal. In this regard, he relied upon judgment of Supreme Court in Sri Gouranga Chakraborty Vs. State of Tripura: aIR 1989 (SC) 1321, more particularly Para 24 which provides as under:-

"24. We have scrutinized the relevant provisions of the BSF act as well as the BSF Rules framed thereunder and we have no hesitation to hold that the power under Section 11(2) of the act empowering the Prescribed authority, i.e. the Commandant to dismiss or remove from service any person under his command other than an officer or a subordinate officer read with Rule 177 of the said Rules is an independent power which can be validly exercised by the Commandant as a Prescribed Officer and it has nothing to do with the power of the Security Force Court for dealing with the offences such as absence from duty without leave or overstaying leave granted to a member of the Force without sufficient cause and to award punishment for the same. The provision of Sub-section (4) of Section 11 which enjoins that the exercise of the power under the aforesaid Section shall be subject to the provisions of the act and the Rules does not signify that the power to dismiss a person from service by the Commandant for his absence from duty without leave without any reasonable cause o