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2012 Supreme(J&K) 265
JAMMU & KASHMIR HIGH COURT
Hasnain Massodi, J.
Sandeep Singh -Appellant
Versus
Union of India & Ors. -Resopndent
SWP No. 706/2004
Decided On : 08-06-2012
Mrs. Surinder Kour Advocate for the Petitioner.
Mr. Rajnish Raina, CGSC Advocate, for the Respondents.
The court upheld the jurisdiction of the Summary Security Force Court (SSFC) and found the punishment of dismissal from service to be within the powers available under the BSF Act, 1968.
Headnote:
Dismissal - Service Dismissal - BSF Act of 1968, Section 19(a), Section 70, Section 74(3), Section 74(4), Section 48, Section 50 - The court dismissed the petitioner's claim of procedural irregularity and violation of natural justice, upheld the jurisdiction of the Summary Security Force Court (SSFC), and found the punishment of dismissal from service to be within the powers available under the BSF Act, 1968.
Fact of the Case:
The petitioner, a BSF Constable, was dismissed for unauthorised absence from duty. The petitioner argued that he had urgent family matters to attend to due to his brother's death and was orally permitted to leave by the respondents. The respondents contended that the dismissal order did not suffer from procedural irregularity and that the petitioner had not availed the remedy available under Section 117 of the BSF Act, 1968.
Finding of the Court:
The court found that the petitioner was given sufficient opportunity to explain his stand and that the proceedings before the SSFC did not suffer from any infirmity. It upheld the jurisdiction of the SSFC and dismissed the writ petition for lack of merit.
Issues: The issues revolved around the petitioner's unauthorised absence, procedural irregularity, violation of natural justice, jurisdiction of the SSFC, and the availability of an efficacious remedy under Section 117 of the BSF Act, 1968.
Ratio Decidendi: The court held that the petitioner was given sufficient opportunity to be heard, the SSFC had jurisdiction to try the case, and the punishment of dismissal from service was within the powers available under the BSF Act, 1968. It also found that the petitioner had not availed the remedy available under Section 117 of the BSF Act, 1968.
Final Decision: The writ petition was dismissed for lack of merit.
Based on the provided legal document, the key points are as follows:
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The case involves a BSF Constable who was dismissed from service for unauthorized absence, specifically for a period of 39 days, after attending to urgent family matters following his brother's death (!) [19000114980001].
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The petitioner argued that he was permitted orally to leave for his family emergency and returned after the stipulated period, claiming procedural irregularities and violation of natural justice in his dismissal (!) [19000114980002].
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The respondents contended that the petitioner was given sufficient opportunities to explain his absence, and the proceedings before the Summary Security Force Court (SSFC) were conducted properly in accordance with the applicable rules and procedures (!) [19000114980006].
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It was established that the petitioner was attached to a different battalion after his absence, and the trial was conducted at that location, which was within the jurisdiction of the commanding officer authorized to convene the SSFC (!) [19000114980008].
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The court found that the proceedings were carried out in accordance with the law, that the petitioner was given adequate opportunity to defend himself, and that the SSFC had proper jurisdiction to try the case (!) [19000114980006][19000114980008].
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The argument that a Court of Inquiry was mandatory before trial was rejected, as the proceedings commenced after the petitioner reported back and was available for disciplinary action (!) [19000114980009].
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The court emphasized that the punishment of dismissal was within the powers granted under the BSF Act and Rules, and that the procedure followed was appropriate for a trial by SSFC, which does not require prior notice or show cause against the punishment (!) [19000114980010][19000114980011].
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The petitioner did not avail of the statutory remedy provided under Section 117 of the BSF Act, which allows for a petition to be made to higher authorities for confirmation of the findings or sentence, and therefore the writ petition was dismissed on this ground (!) [19000114980003].
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Overall, the court upheld the jurisdiction of the SSFC, confirmed that the disciplinary process was properly conducted, and dismissed the petition for lack of merit, affirming that the punishment was within the legal authority of the SSFC (!) [19000114980012].
These points summarize the legal reasoning and findings related to the disciplinary proceedings, procedural compliance, and the jurisdictional aspects involved in the case.
2. The dismissal order dated 03.01.2004 is questioned in the writ petition on hand, on the grounds that the petitioner because of untimely death of his elder brother on 20th April, 2003 was urgently required at his home in connection with finalization of family matters like obtaining succession certificates in respect of debts and liabilities of the deceased and finalization of Bank/LIC Accounts etc.; that though the respondents did not formally accord sanction to 30 days leave in his favour for which he duly applied, yet the respondents orally permitted the peti#31;tioner to proceed to his home and get the family matters completed. It is pleaded that the petitioner, after he was granted verbal permission by the respondents, left for his home on 2nd October, 2003, and joined back his Unit on 9th November, 2003. The petitioner complains that the Deputy Inspector General, BSF - respondent no. 4 in the petition, without holding any enquiry as contemplated by BSF Act and the Rules made thereunder and without affording the petitioner an opportunity of being heard, dismissed the petitioner from service. The impugned dismissal order is assailed on the ground that it has been made without following the procedure laid down under the BSF Act and Rules.
3. The respondents oppose the writ petition on the grounds that the impugned dismissal order does not suffer from any procedural irregularity as would warrant its judicial review in terms of Article 226 of the Constitution of India. The petition is also opposed on the ground that the petitioner has not availed the efficacious remedy available to him under Section 117 of the BSF Act of 1968. It is pleaded that after the petitioner absented from duly on 2nd October, 2003, a letter bearing no. Estt/CI OPS-I/526/03/8767-68 dated 9th October, 2003, was sent to his home address asking him to immediately report to duty and that in the event, he did not report, disciplinary action would be initiated against him. The aforesaid communi#31;cation is reported to have been followed by Communication No.HQL/No. Estt/526/03/9787 dated 10th November,2003, after the petitioner joined his duty on 9th November, 2003, whereby an explanation was sought from the petitioner as regards his unauthorised absence. It is admitted that the petitioner in reply to the aforesaid show cause notice, stated that he was compelled to absent from duty as he had to meet his relatives after his brother's death and he also had to get the matters related to his brother's death settled in the Court; that the explanation tendered was not found satisfactory by the respondents, and the petitioner was attached with 42 Bn BSF vide No. Estt/SHQ CI OPS-I/03/9798-800 dated 10th November, 2003.The Commandant 42 Bn BSF is said to have heard the petitioner under Rule 45 of BSF Rules 1969 on 15th November, 2003 on the charge of "Absent#31;ing Himself Without Leave" under Section 19(a) of BSF Act of 1968; that after hearing the charge, the Record of Evidence (ROE) was ordered vide No. Estt/42 Bn/BSF/ROE-SS/2003/5903-07and Shri Jai Ram Singh, Deputy Commandant 42 Bn BSF recorded the evidence/prepared the Record of Evidence (ROE); that the Commandant after going through the Record of Evidence (ROE) under rule 51 of the BSF Rules, 1969, decided for trial of the petitioner by the Summary Security Force Court (SSFC) on 3rd January, 2004, and that after due appreciation of the evidence adduced against the petitioner during trial, the Court found him guilty of the charge and sentenced him "To Be Dismissed From Service" and promulgated the sentence on 03.01.2004 itself. The respondents also question jurisdiction of the Court to dea
