Compulsory retirement under Rule 26 of the BSF Rules is valid if based on unsuitability, with due process followed, and does not constitute double jeopardy.

JUDGMENT

1. The petitioner, who was workin g as Constable with the respondents, was retired from service with effect from 31.07.2006 (AN) under Rule 26 of the BSF Rules 1969 by the respondent No. 5 vide order No. Estt/Ret- Uns/46 Bn/2006/13296-102 dated 31.07.2006 (for short, "the order impugned‟).

2. The petitioner has impugned the order impugned on the following grounds:-

a) That the respondents have not given any cogent reason in the order impugned while retiring the petitioner and have not granted any personal hearing to the petitioner before imposing major punishment of compulsory retirement;

b) That it is settled proposition of law that even a person who has more than 4/5 red entries cannot be retired from service solely on the basis of those entries and the nature of the offences, length of service, hard stations and difficulties in living etc. are required to be considered by the concerned authority before taking any such action. The respondents have not taken into consideration the previous record of the petitioner and have passed the order in a mechanical manner. The petitioner has not done any act, for which he has been imposed the punishment.

c) That the respondents have imposed the punishment of compulsory retirement on the petitioner which amounts to double jeopardy because for the same allegations, the respondents have punished the petitioner twice.

3. The respondents have objected to the writ petition by submitting that the petitioner has not availed the statutory remedy by filing petition under Rule 28-A of the BSF Rules 1969, which provides that an individual has a right to file petition against the order passed under Rule 26 of the BSF Rules to the superior officer, if he feels aggrieved of the said order and, as such, the petitioner, without availing the said remedy, has filed the present petition, which is not maintainable. The respondents have further stated that the petitioner during his service tenure of 15 years 10 months and 4 days of service was awarded 15 cash rewards for his performance as a Welder in Unit repair organization and 6 punishments were imposed upon the petitioner for committing offences while on duty. The petitioner on 12.02.2000 created nuisance after consuming liquor while on duty and a written warning was issued to him to abstain himself from indulging in such activities and to be careful in future vide communication dated 15.02.2000, but he continued to consume liquor, therefore, three punishments were awarded to him under Section 26 of BSF Act, 1968. It is further stated that the Board assembled in the year 2003 for screening the performance of unit personnel and found the performance of the petitioner not upto the required standard and accordingly, as per recommendation of the Board, a written warning was issued to him vide communication dated 24.01.2004 to improve his conduct, failing which, necessary action would be taken against him for retirement on the ground of unsuitability under Rule 26 of BSF Rules. The petitioner instead of improving his performance continued with the acts of indiscipline. He was sanctioned 30 days‟ of Earned Leave with 09 days journey period with effect from 24.10.2005 to 01.12.2005 but he failed to join his duty in time and reported on 05.01.2006 (FN) after overstaying 34 days without leave. His leave was regularized by the competent authority, and he was given one more opportunity to improve his conduct/behaviour, however, despite the abovementioned warnings issued to the petitioner, he did not improve himself at all and could not prove himself to be a disciplined member of service and continued with his misconducts. The petitioner, on 12.08.2005 again used in-subordinate language to his superior officer, for which, he was tried by SSFC on 20.01.2006 for committing an offence under Section 20(c) of the BSF Act and awarded 30 days rigorous imprisonment in force custody. The Board of Officers was detailed for screening the performance of those unit personnel