JUDGMENT
S.B. Sinha, C.J.
1. An order of dismissal dated 19.08.1996 is the subject matter of the writ petition, which reads thus:-
“OFFICE ORDER
I have personally gone through the case of absence without leave against No. 89254118 Const. Manbir Singh, 72 Bn BSF. He was given an opportunity to show cause vide register L/No. Estt/AWL/SID/72 BN/11712 of 12.07.96 which he has not availed of. I am satisfied that he is absent without leave without any reasonable cause and that his further retention in service is not desirable. I therefore, dismiss him from the service w.e.f. 19.08.96.
02. The period of un-authorized absence from duty w.e.f. 02.04.96 to 19.08.96 be treated as “DIES NON’.
03. An amount of Rs. 1169.72 (Rupees one thousand one hundred sixty nine and paise seventy two only) on account of depreciated value of kit/clothing/Eqpt. items issued to him be realized from his pay and allowances and deposited into Govt. treasury.
04. The individual is struck off strength of this unit with immediate effect.”
2. The basic fact of the matter is not in dispute.
The petitioner herein was serving in the Border Security Force (in short, ‘BSF’). He while on duty in Jammu & Kashmir area fell down from the slope of a hill and sustained injury in his spinal cord. He reported to the Force Hospital, but as his pain continued, he was advised by the Doctors to go on leave and take complete rest as disc of his spinal cord has dislocated. He was granted Earned Leave for two months from 01.02.1996 to 01.04.1996. During the leave period, he got himself admitted in L.N.J.P. Hospital, New Delhi wherefor he submitted medical certificate issued by the said Hospital from 03.04.1996 to 10.07.1997. However, as allegedly his frequent journeys from Bulandshahar to New Delhi were creating hurdle in improvement of his condition, he got himself treated in Misra Clinic, which was near his home, from 10.07 1996 to 30.09.1996. His disease was diagnosed by the Doctors as ‘Protapsed Intervaletral Disc.’ and he was asked to take complete bed rest because even a slight movement of the body could have caused more problem.
He, however, received the impugned letter on 19.08.1996 in terms whereof he was intimated that he had been dismissed from services from the said date. The petitioner preferred an appeal thereagainst, but he received not reply.
3. It is not in dispute that prior to issuance of the said order, neither any enquiry was held nor the petitioner got an opportunity of hearing.
4. The stand taken by the respondents in the counter affidavit is that as the petitioner over-stayed his leave for 102 days without sufficient cause, he was declared as unauthorized absentee by a Court of Inquiry and as despite the same he did not join his Unit, he became a deemed deserter within the meaning of Section 62 of the Border Security Force Act, 1968 (in short, ‘the said Act’), which is a punishable offence under Section 18 thereof. On the aforementioned ground a notice was issued to him on 12.07.1996 asking him to show cause within 30 days of the receipt of the said letter as to why he should not be dismissed from service.
5. Mr. S.P. Sharma, the learned counsel appearing on behalf of the petitioner, would submit that the petitioner was entitled to 60 days’s Earned Leave and 20 days’ Casual Leave, apart from sick leave.
According to the learned counsel, as the petitioner was suffering, he had to undergo treatment and to obtain leave. It was contended that neither the petitioner was informed about the Court of Inquiry nor any notice was served to him. It had been submitted that when a legal notice was served by the petitioner through his counsel even in reply thereto it was not indicated that a Court of Inquiry had been held.
According to the learned counsel, the petitioner in the rejoinder to the counter affidavit specifically denied and disputed service to the said show-cause notice and, thus, the entire proceedings must be held to be vitiated in law.
6. Ms. Barkha Babbar, the learned counsel appearing on behalf of the respondents, on the other had, would contend that as the said notice had been issued through registered post with acknowledgement due, it would be deemed to have been served in terms of Section 27 of the General Clauses Act. The learned counsel would submit that in the aforementioned situation it was fro the writ petitioner to prove that there had been no service of notice.
7. By an order dated 02.04.2002, a learned Single Judge of this Court noticed the rival contentions of the parties and directed production of records. From the records produced before this Court by the respondents on 01.08.2002, no material could be placed to establish service of the said notice and, thus, an opportunity, as was prayed for by the learned counsel for the respondents, was granted to obtain a certificate of service of notice from the postal authorities concerned. However, at the time of hearing, the learned counsel stated that postal authorities have not granted such certificate.
8. Before proceeding to deal with the question involved in this writ petition, we may notice some relevant provisions of the said Act and the Border Security Force Rules, 1969 (in short, ‘the said Rules’).
Section 11, 61 and 62 of the said Act are in the following terms:-
“11. Dismissal, removal or reduction by the Director-General and by other officers.– (1) The Director-General or any Inspector- General may dismiss or remove from the service or reduce to a lower grade or rank or the ranks any person subject to this Act other than an officer.
(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.
(3) Any such officer as is munitioned in Sub-section (2) may reduce to a lower grade or rank or the ranks any person under his command except an officer or a subordinate officer.
(4) The exercise of any power under this section shall be subject to the provision of this Act and the rules.
61. Capture of deserters.–(1) Whenever any person subject to this Act deserts, the Commandant of the unit to which he belongs, shall give information of the desertion to such civil authorities as, in his opinion, may be able to afford assistance towards the capture of the deserter; and such authorities shall thereupon take steps for the apprehension of the said deserter in like manner as if he were a person for whose apprehension a warrant had been issued by a magistrate, and shall deliver the deserter, when apprehended, into Force custody.
(2) Any police officer may arrest without warrant any person reasonably believed to be subject to this Act, and to be a deserter or to be traveling without authority, and shall bring him without delay before the nearest magistrate, to be dealt with the according to law.
62. Inquiry into absence without leave.– (1) When any person subject to this Act was been absent from duty without due authority for a period of thirty days, a court of inquiry shall, as soon as practicable, be appointed by such authority and in such manner as may be prescribed; and such court shall, on oath or affirmation administered in the prescribed manner, inquiry respecting the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or necessaries and if satisfied of the fact of such absence without due authority or other sufficient cause, the court shall declare such absence and the period thereof and the said deficiency, if any, and the Commandant of the unit to which the person belongs shall make a record thereof in the prescribed manner.
(2) If the person declared absent does not afterwards surrender or is not apprehended he shall for the purposes of this Act, be deemed to be a deserter.”
Rules 20, 22 and 177 of the said Rules read thus:-
“20. Termination of service of officers by the Central Government on account of misconduct.–(1) When it is proposed to terminate the service of an officer under Section 10 on account of misconduct, he shall be given an opportunity to show cause in the manner specified in Sub-rule (2) against such action:
Provided that this sub-rule shall not apply–
(a) where the service is terminated on the ground of conduct which has led to his conviction by a criminal court or a Security Force Court; or
(b) where the Central Government is satisfied that for reasons, to be recorded in writing, it is not expedient or reasonably practicable to give to the officer an opportunity of showing cause.
(2) When after considering the reports on an Officer’s misconduct, the Central Government or the Director-General, as the case may be, is satisfied that the trial of the Officer by a Security Force Court is inexpedient or impracticable, but is of the opinion, that the further retention of the said officer in the service is undesirable, the Director General shall so inform the officer together with particulars of allegation and report of investigation (including the statements of witnesses, if any, recorded and copies of documents if any, intended to be used against him) in case where allegations have been investigated and he shall be called upon to submit, in writing, his explanation and defense:
Provided that the Director-General may withhold disclosure of such report or portion thereof if, in his opinion, its disclosure is not in the interest of the Security of the State.
(3) In the event of the explanation of the Officer begin considered unsatisfactory by the Director-General, or when so directed by the Central Government, in case shall be submitted to the recommendation of the Director-General as to the termination of the Officer’s service in the manner specified in Sub-rule (4).
(4) When submitting a case to Central Government under the provisions of Sub-rule (2) or Sub-rule (3), the Director-General shall make his recommendation whether the Officer’s service should be terminated, and if so, whether the officer should be–
(a) dismissed from the service; or
(b) removed from the service; or
(c) retired from the service; or (d) called upon to resigns;
(5) The Central Government, after considering the reports and the officer’s defense, if any, or the judgment of the criminal court, as the case may be, and the recommendation of the Director-General, may remove or dismiss the officer with or without pension or retire or get his resignation from service, and on his refusing to do so, the officer may be compulsorily retired or removed from the service with pension or gratuity, if any, admissible to him.”
22. Dismissal or removal of persons other than officer on account of misconduct.–(1) When it is proposed to terminate the service of a person subject to the Act other than an officer, he shall be given an opportunity by the authority competent to dismiss or remove him, to show cause in the manner specified in Sub-rule (2) against such action:
Provided that this sub-rule shall not apply-
(a) where the service is terminated on the ground of conduct which had led to his conviction by a criminal court or a Security Force Court; or
(b) where the competent authority is satisfied that, for reasons to be recorded in writing, it is not expedient or reasonably practicable to give the person concerned an opportunity of showing cause.
(2) When after considering the reports on the misconduct of the person concerned, the competent authority is satisfied that the trial of such a person is inexpedient or impracticable, but, is of the opinion that his further retention in the service is undesirable, it shall so inform him together with all reports adverse to him and he shall be called upon to submit, in writing his explanation and defense:
Provided that the competent authority may withhold from disclosure any such report or portion thereof, if, in his opinion, its disclosure, is not in the public interest.
(3) The competent authoirty after considering his explanation and defense if any may dismiss or remove him from service with or without pension:
Provided that a Deputy Inspect-General shall not dismiss or remove from service, a Subordinate Officer of and above the rank of a Subedar.
(4) All cases of dismissal or removal under this rule, shall be reported to be Director- General.]”
Provided that the Deputy Inspector General shall not dismiss or remove a subordinate officer of the rank of Subedar (Inspector).
177. Prescribed officer under Section 11(2).–The Commandant may, under Sub-section (2) or Section 11, dismiss or remove from the service any person under his command other than a officer or a subordinate officer.”
9. In the instant case, however, this Court is not concerned with the validity or legality of the said provisions.
10. The short question, which arises for consideration, is as to whether in this case the respondents have complied with the mandatory requirements of law or not.
11. Section 11(2) empowers the prescribed authority, i.e., the Commandant to pass an order of dismissal of any person under his command in terms of Rule 177 of the said Rules. When such a course of action is resorted to, it may not be necessary to convene a Security Force Court for dealing with the offences. However, as would appear from the aforementioned provisions, the principles of natural justice are required to be complied with. (See Union of India and Ors. v. Ram Phal 1996 (2) SLR 297).
12. In the instant case, the respondents have not been able to produce the registration receipt. No affidavit has also been affirmed by any competent person to establish that the registered cover was handed over by the postal authorities. Only when a notice is proved to have been issued under a registered cover, a presumption under Section 114 of he Evidence Act can be drawn.
However, even if a presumption is raised, the same is rebuttable in nature. The petitioner has placed before this Court strong circumstances to show that notice had not been issued. In any event, a mere denial by him on oath that the said notice has not been received by him would be sufficient to discharge him form the onus of proof.
13. It is not a case where the acknowledgement due has come back with the endorsement ‘refused’. In Meghji Kanji Patel v. Kundanmal Chamanlal, the Bombay High Court held that when the registered post had been returned with the endorsement ‘refused’, the presumption of service had been repelled by the defendant’s statement on oath that he had not refused to receive the same, as it was never brought to him. In the aforementioned situation, unless postman was produced, the statement of the defendant on oath must prevail.
However, a contrary view had been taken in Nirmalabala Devi v. Provat Kumar Basu 1948 (52) CWN 659 wherein it was held that mere fact that the letter had come back with the endorsement ‘refused’ could not raise a presumption of failure to serve and, on the other hand, a presumption under Section 114 of the Evidence Act would be that in the ordinary course of business it was received by the addressee and actually refused by him.
14. The Apex Court in Puwada Venkateswara Rao v. Chidamana Venkata Ramana held that both the aforementioned statements of law are correct as they were rendered in different fact situation. It was held:-
“10. The two decisions are reconcilable.The Calcutta High Court applied a rebuttable presumption, which had not been repelled by any evidence. In the Bombay case, the presumption had been held to have been rebutted by the evidence of the defendant on oath so that it meant what the plaintiff could not succeed without further evidence. The Andhra Pradesh High Court had applied the ratio decidendi to the Bombay case because the defendant-appellant before us had deposed that he had not received the notice. It may be that, on a closer examination of evidence on record, the Court could have reached the conclusion that the defendant had full knowledge of the notice and had actually refused it knowingly. It is not always necessary, in such cases, to produce the postman who tried to effect service. The denial of service by a party may be found to be incorrect form its own admissions or conduct. We do not think it necessary to got into this question any further as we agree with the High Court on the first point argued before us.”
15. In view of the aforementioned decisions we are unable to agree with the views of the learned Single Judge.
16. In A. Tosh & Sons Pvt. Ltd. v. Assistant Collector, Central Excise 1992 (60) E.L.T. 220 (Cal) the decision of Sukumar Guha v. Naresh Chandra Ghosh was followed. Unfortunately before the learned Judge, contrary decisions of the other High Courts as also the aforementioned decision of the Apex Court was not brought to its notice. The learned Judge decided the matter on the ground that no evidence had been adduced to show that the said letter had not reached the concerned authority. In that case,the learned Judge was dealing with a notice demanding refund of the excise duty. It was observed that in the office of the Government there is a receiving section and no person had come forward with an evidence to show that such a letter was not received. It was in this situation held:-
“33. Settled law on the question of service of a letter by post has already discussed is that if it is shown that the letter has been duly posted by certificate of posting or by ordinary post there would be a presumption of regularity that the said letter has reached the addressee unless the said presumption had been duly rebutted by due evidence to the contrary. No such evidence has been adduced to show that the said letter has not reached the concerned authority except that it does not appear from records, which is not a sufficient denial of such fact…..”
The said decision also, therefore, does not run counter to our opinion.
17. Yet against the decision of the Apex Court in State of Maharashtra and Ors. v. Nazmunnisa and Ors., relied upon by Ms.Babbar, does not advance the case of the respondents inasmuch as therein again the addressee had not stated that he did not receive the notice to rebut the presumption.
In the instant case, as noticed hereinbefore, no presumption in terms of Section 114 of the Evidence Act can be raised and even if a presumption is raised, the onus of the petitioner stands discharged.
18. Furthermore, in the instant case, the impugned notice does not disclose any reason as to why the trial by the Security Force Court is impractical. Once an officer is held to be ‘deserter’ within the meaning of Section 62 of the said Act, action in terms of Section 61 thereof was required to be taken.
19. From the records, it does not appear that either any notice was sent to the petitioner asking him to join his duties forthwith as he was declared as deserter or any warrant of arrest had been issued. Only when such notice is issued and if despite issuance of such notice/warrant of arrest, he could be held t o be a “deemed deserter” . Before raising a legal fiction, therefore, condition precedent therefore are required to be complied with. As for the purpose of holding that the petitioner was a “deemed deserter” , provisions laid down therefore had not been complied with, the entire action must be held to be vitiated in law.
20. For the reasons aforementioned, the impugned order cannot be sustained, which is set aside accordingly. The respondents herein are directed to re-instate the petitioner with all consequential benefits. This order, however, shall not preclude the respondents form taking appropriate action in accordance with law.
This writ petition is allowed with costs quantified at Rs. 5,000/-.