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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
JAVED IQBAL WANI, J.
Manzoor Ahmad Shah - Petitioner
Versus
Union of India & Ors. – Respondents
SWP No. 316 Of 2013
Decided On : 22-12-2022
Writ Jurisdiction - Service Law - Article 226 of the Constitution of India, Border Security Force Rules, 1969 - The court discussed the application of Article 226, which allows for the issuance of writs to enforce fundamental rights and ensure justice. The Border Security Force Rules, particularly Rule 22(2), were referenced regarding the dismissal of the petitioner. The court interpreted these provisions to conclude that the respondents had condoned the petitioner's misconduct by not taking action during the stipulated period, thus influencing the decision to quash the impugned order and direct payment of 50% salary for the intervening period.
Fact of the Case:
The petitioner, a follower in the Border Security Force, was dismissed for unauthorized absence. The dismissal was quashed by the court in a previous petition, allowing the respondents to take appropriate action if necessary. The respondents later reinstated the petitioner but granted leave for the intervening period instead of full salary.
Finding of the Court:
The court found that the respondents had not taken any action against the petitioner for his absence during the dismissal period, which amounted to condonation of misconduct. The impugned order was deemed unjustifiable and violative of natural justice principles.
Issues: Whether the respondents could issue an order granting leave instead of full salary after the dismissal was quashed, and whether the petitioner was entitled to full pay for the period of absence.
Ratio Decidendi: The court held that once the respondents chose not to proceed against the petitioner for his misconduct, it was presumed that the misconduct was condoned. The failure to provide an opportunity to the petitioner to defend against the denial of full pay was a breach of natural justice.
Final Decision: The petition was allowed, the impugned order was quashed, and the respondents were directed to pay the petitioner 50% salary for the period from 23.02.2006 to 06.03.2012 along with consequential benefits.
JUDGMENT :
(Javed Iqbal Wani, J.) :
1. The petitioner has filed the instant petition under Article 226 of the Constitution of India, seeking the following reliefs:
89 days HPL-From 10.09.2006 to 07.12.2006
1915 days EOL-From 08.12.2006 to 06.03.2012
Total 2004 days
(ii) By issuing a Writ of Mandamus direct the Respondents to treat the Petitioner on duty for the period he was out of service due to the illegal dismissal of the Petitioner by the Respondents which Order stands quashed by this Hon'ble Court vide Judgment dated 26.11.2008 in SWP No. 411 of 2007 and pay the Petitioner full salary of the post to which he would have been entitled has he not been dismissed from the service".
2. The facts leading to the filing of the instant petition are that the petitioner is working as a follower with the respondent-Border Security Force (for short, the BSF) and owing to his unauthorized absence from 23.02.2006 onwards, came to be dismissed from service by the respondent No. 3 vide order dated 09.09.2006 in exercise of the powers under Rule 22(2) of the Border Security Force Rules, 1969 (for short, Rules of 1969) while describing retention of the petitioner in the force as undesirable.
3. The order of dismissal dated 09.09.2006 (supra) came to be challenged by the petitioner before this Court in SWP No. 411/2007, which came to be allowed vide judgment dated 26.11.2008, quashing the order of dismissal (supra). While quashing the order of dismissal (supra), it was provided by the Court that the quashment of the said order would not put a bar on the powers of the competent authority for taking appropriate action against the petitioner in terms of law, if same is required to be taken.
4. The judgment dated 26.11.2008 (supra) came to be challenged by the respondents in an appeal being LPA No. 159/2009 which, however, came to be dismissed on 24.08.2011.
5. In furtherance of the liberty granted to the respondents in the judgment passed by the writ court as well as the appellate court for taking an action against the petitioner in terms of law, if the same is required to be taken, the respondent No. 3 herein issued order dated 07.07.2012, which is impugned in the instant petition, by virtue of which the petitioner came to be re-instated with effect from 07.03.2012 (FN) i.e. from the date of his joining in the Unit, while further providing that the intervening period between the date of dismissal and reinstatement is regularized by granting following kind of leave due to him under FR 54(S):-
(ii) 1915 EOL-From 08.12.2006 to 06.03.2012
6. Consequent to the reinstatement of the petitioner, the pay of the petitioner was fixed at Rs. 6460+G. Pay 2000/- in the pay band-I Rs. 5200-20200/- w.e.f. 07.03.2012, subject to the condition that the petitioner will undergo refresher training of eight weeks for drawing pay in the Grade pay Rs. 2000/- with DNI on 01.07.2013.
7. The petitioner has impugned order dated 07.07.2012 inter alia on the grounds that upon quashing of the order of dismissal in the earlier petition by the Court, the petitioner is deemed to be in service throughout and entitled to salary, as such, and that the impugned order has been issued without application of mind besides being illegal and unconstitutional.
8. Per contra, the respondents have filed objections, wherein it is being admitted that the petitioner while being in service of the respondents came to be dismissed from service w.e.f. 09.02.2006 owing to his over stay of leave for 199 days. It is also being admitted that the said order of dismissal came to be quashed in the earlier petition, however, a liberty thereof was granted to the respondents to take an appropriate action against the petitioner in terms of law, if the same is required to be taken and thereafter,
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