The power of the Commandant to dismiss a person under his command is an independent power, not dependent upon the conviction of the concerned person by the Security Force Court.

JUDGMENT :

1. The petitioner has challenged order No. 15389-405 dated 12.10.2000 issued by respondent No.5 whereby the husband of the petitioner, namely Gopal Ram has been terminated from service. A further direction has been sought upon the respondents to fix and release family pension in favour of the petitioner.

2. As per case of the petitioner, her husband Sh. Gopal Ram was appointed as Constable in BSF in the year 1987. He was posted in 102nd Battalion BSF in the year 1998. He was granted two months leave and after availing the leave period, he went back to R.S.Pura, Jammu to resume his duty. However, the petitioner received an information from the Battalion in the year 1998 that her husband is absent from duty. The petitioner is stated to have corresponded with the Commandant of the Battalion seeking information regarding the whereabouts of her husband. A representation was also made by the petitioner on 05.05.1999 to the Commandant wherein it was stated that a constable from the Unit had come to seek information regarding the whereabouts of her husband and it was also informed that the whereabouts of her husband are not known. According to the petitioner, the Unit did not conduct any investigation, nor did it publish any notification in the newspaper. In the meanwhile, the petitioner is stated to have received a phone call on 21.09.2003 from a Hospital at Dholpur. The petitioner went to the Hospital at Dholpur where her husband was lying admitted in a precarious condition. The husband of the petitioner is stated to have died on 22.09.2023. According to the petitioner, she had no knowledge regarding whereabouts of her husband from the year 1998 to 21.09.2003.

3. After death of her husband, the petitioner is stated to have approached the respondents seeking settlement of family pension in her favour, but she was informed that her husband had been terminated from service in terms of the impugned order dated 12.10.2000 and that she is not entitled to any family pension.

4. The petitioner has challenged the impugned action of the respondents on the ground that the procedure prescribed under the Border Security Force Act, 1968 (‘the Act’ for short) and the Rules framed thereunder has not been followed by the respondents before terminating the services of her husband. It has been submitted that no enquiry was conducted by the respondents in terms of Section 62 of Act, nor the procedure prescribed under Rules 21 and 22 of BSF Rules, 1969 (‘the Rules’ for short) has been followed. It has been contended that neither the petitioner, nor her husband was given an opportunity of putting forth defence by the respondents before terminating his services.

5. The respondents have contested the writ petition by filing their objections. In their objections, the respondents have submitted that the husband of the petitioner was sanctioned leave w.e.f 12.03.1998 to 25.05.1998, but he did not report back upon expiry of the leave. Vide communication dated 01.06.1998, the husband of the petitioner was asked to report back to the Unit, but he did not respond, as a consequence whereof, a Court of enquiry in terms of Section 62 of the Act was ordered and finalized on 20.08.1998, on which date, the petitioner’s husband reported back to duty. Thereafter, the husband of the petitioner was charged under Section 19(b) of the Act in terms of office order dated 05.09.1998 copy whereof was handed over to him. However, on 05.09.1998, the husband of the petitioner again absented himself from duty without any permission from the competent authority. According to the respondents, the petitioner’s husband deserted the Unit on his own without any permission in order to avoid disciplinary action and thus, committed 2nd offence punishable under Section 19(a) of the Act.

6. The husband of the petitioner was again issued a notice dated 13.10.1998, but no response was received. Another Court of Inquiry, in terms of Section 62 of the Act, was ordered and the same was finaliz