JUDGMENT
Khan, J.
1. Petitioner was dismissed from service on
7.4.1999. He has filed this petition for setting aside
of the dismissal order and for his reinstatement in
service with back wages.
2. Petitioner was enrolled in BSF on 23.5.1988.
At one stage, he was sent to undergo D & M Course and
was granted casual leave and reward leave. After expiry
of his leave, he was to report for duty in his unit on
26.5.1998 but he failed. Notices were sent to him by
registered post asking him to resume his duty to which
he failed to respond. Later apprehension rolls were
also issued against him which also went abegging. He
was then proceeded under Section 62 of BSF Act leading
to the holding of court of inquiry against him to
investigate into his unauthorised absence of 316 days.
The court of inquiry report along with show cause notice
dated 5.3.1999 was also sent to him which was, however,
received back unserved. He was then finally dismissed
by under dated 7.4.1999 passed by the Commandant under
Section 11(2) of the Act read with Rule 177 of BSF Rules
without any pensionary and financial benefits. He
represented against this but his representation was
rejected. He thereafter filed a statutory appeal also
which met with the same fate.
3. Petitioner complains of violation of principles
of natural justice. He alleges that he neither received
any show cause notice from R-4 nor any copy of the
report of court of inquiry and other documents. He also
claims that he had addresses a letter to 25 BSF dated
28.8.1999 requesting for some documents related to
termination of his services but even this was not
acknowledged. He lastly submits that his dismissal
order was illegal because it was ordered in exercise of
administrative power without following the other
alternatives provided in Sections 19, 62 and Rules 20,
21 and 22 as Commandant had not recorded any certificate
that the trial of petitioner was inexpedient or was not
reasonably practicable.
4. Respondents have filed their counter through
S.K. Dewan, DIG (HQ) taking the stand that petitioner was
repeatedly asked to resume his duties through registered
letters. Even apprehension rolls were issued against
him. But he failed to respond to all this and could not
be located till he surfaced to make a representation
against his dismissal and filed the statutory
representation. It is also claimed that the requisite
show cause notice along with court of inquiry
proceedings was sent to him by registered letter dated
5.3.1999 proposing termination of his services without
any financial benefits but even this was received back
as unserved. Thereafter Commandant, after considering
his entire case, ordered his dismissal on 7.4.1999 under
Section 11(2) of the Act read with Rule 177 without any
pensioner/financial benefits and treated his period of
unauthorised absence of 316 days as dies-non. He was
later struck off the strength on 7.4.1999. It is also
submitted that the show cause notice issued to
petitioner on 5.3.1999 recorded the opinion of the
Commandant that his retention in service was undesirable
and that his trial by security force court was
inexpedient and impracticable.
5. All that remains to be seen is whether
petitioner could be dismissed from service in exercise
of power under Section 11(2) of the Act read with Rule
177 or whether respondents were obliged to take recourse
to trial by security force court and also whether
non-receipt of the show cause notice and the court of
inquiry proceedings would vitiated the action taken
against him in the facts and circumstances of the case.
6. Section 11(2) of the Act read with Rule 177
empowers the Commandant to dismiss or remove from
empowers the Commandant to dismiss or remove from
services any person under his command other than an
officer or a subordinate officer. It has obviously
nothing to do with the power of security force court for
trying such person and dealing with the offences with
which he is charged and to award him the requisite
punishment. This power enjoyed by the Commandant is an
independent power and it has been held to be so by
several judgments of the Supreme Court. It was first
laid down in Gouranda Chakraboprty v. State of Tripura
and then followed in Union v. Ram Pal
1996 (2) SLR 297 holding that the power exercised by a
Commandant under Section 11(2) read with Rule 177 was an
independent power which had nothing to do with the power
exercisable by a security force court and once show
cause notice was issued in terms thereof, no further
inquiry was required to be held if the delinquent person
failed to reply to the notice and to deny the
allegations in the process.
7. In this view of the matter, we find nothing
wrong in the course adopted by R-4 in ordering
petitioner’s dismissal in exercise of power under
Section 11(2) of the Act read with Rule 177 subject, of
course, to the fulfillment of other requirements.
8. It goes without saying that petitioner was
entitled to show cause notice proposing his termination
from service recording the Commandant’s satisfaction on
the report of the court of inquiry and that it was
inexpedient to go ahead with the security force court in
terms of Rule 22. But this requirement was also
satisfied in the present case because show cause notice
dated 5.3.1999 along with the court of inquiry
proceedings was sent to petitioner through registered
letter No. Estt/25 Bn/D530/RK/99/5769 which was received
back undelivered with the report that addressed was not
found residing at the given address.
9. Given regard to this and that all notices and
apprehension rolls sent to petitioner had gone abegging
in the past also, though petitioner had at a later stage
chosen to represent against his dismissal, it can’t be
said or held that R-4 had failed to give show cause
notice to petitioner and to satisfy the prescribed
requirements under Rule 22. If a person can’t be
reached to receive the notice proposing punishment to
him or if it is found that he had deliberately avoided
to receive the notice, the authority issuing the notice
can’t be blamed for this or charged of failure to
satisfy the requirement. In such a case, presumption of
service of notice goes against the person to whom the
notice was addressed. It accordingly becomes difficult
for us to uphold petitioner’s contention and to hold
that R-4 (Commandant) had failed to issue him show cause
notice impinging upon the action taken against him.
10. That leaves us with the only surviving issue
whether petitioner could be dismissed from service
without pensionary and financial benefits. We are
informed that CCS (Pension) Rules were applicable to
BSF. Rule 24 of the Rules provides that a dismissal or
removal of a Government servant from service will entail
forfeiture of his past service. That being so,
petitioner’s dismissal without pensionary/fianancial
benefits could not be faulted as such. But considering
the overall circumstances of his case, he could be at
least considered for payment of compassionate allowance
under Rule 41 of the CCS (Pention) rules which provides
for grant of allowance in deserving cases and in cases
of special consideration. He may make a representation
for this which shall be considered by the concerned
authority and appropriate orders passed thereon within
four months from receipt of representation.