JUDGMENT
M.K. Sharma, J.
1. This petition is filed by the petitioner
praying for quashing and setting aside of the order
dated 3.2.1995 whereby the petitioner was dismissed
from service effective from the same date with a
further prayer to reinstate the petitioner in
service with full back wages and allowances.
2. The petitioner was appointed in BSF on
14.12.1987 against a post of Sub-Inspector. The
petitioner after successful training joined his
duty as Sub-Inspector. He was posted at BSF Sector
Headquarters (DIG Headquarters) Patgaon, Guwahati
Assam. After one year of service the petitioner
was transferred to 153 Bn. BSF, Panwari, Dist-Dhubri
Assam where he served for four years. Thereafter
he was transferred to 79 Bn. BSF at Tura Meghalaya
on 28.8.1992 from 153 Btn. BSF. The petitioner,
however, reported for duty in 79 Bn. BSF only on
3.10.1992 after absenting for duties for 19 days.
Thereafter, he proceeded on 14 days casual leave
w.e.f. 9.12.1992 till 25.12.1992 for the treatment
of his wife. He was to resume his duty on
30.12.1989 but he reported for duty only on
11.1.1993 after over staying for 12 days.
3. The records also discloses that on
arrival from leave the petitioner also brought his
family to Bn. Headquarter without seeking any
permission. He also broke open the door of a
Government Quarter and started staying with his
family without permission of the Competent
Authority. The petitioner was asked to proceed to
his Company for Boarder Duty as Platoon Commander.
The petitioner, however, refused to obey the orders
twice. The petitioner again left the Unit on
10.2.1993 of his own and remained absent from duty
without informing anyone. A letter was issued to
the petitioner on 27.1.1993 by the respondents to
explain as to why a disciplinary action should not
be taken against petitioner for the wrongful
occupation of the quarter. A reply was received
from the petitioner against the letter of the
respondents dated 27.1.1993 which was considered
any rejected by the competent authority.
Thereafter, the respondents decided to proceed
against him and accordingly charge-sheets were
issued to the petitioner under Section 19(b) of the
BSF Act and Section 21(1) of the BSF Act. In one
of the charge sheets the allegation was that the
petitioner had overstayed the period of leave
without sufficient cause and the other of alleged
disobeying orders of his superiors in such manner
as to show a willful defiance of authorities and
lawful command given by his superior officers. The
respondents issued two separate orders to Sh.
Sarwan Singh, 2 I/C of the Unit to prepare the
records of the Abstract of Evidence in respect of
the petitioner. The petitioner was supplied copies
of the Abstract of the evidence in regard to charge
under Section 19(b) of the BSF Act, 1968. The
petitioner submitted a letter of resignation from
service which, however, was considered and was not
accepted in view of pendency of departmental
proceedings against the petitioner. The petitioner
also submitted a letter requesting for dropping the
disciplinary proceedings. Subsequently, however,
show cause notice was issued against the petitioner
on 28.11.1994 stating that the trial by a Security
Force Court is impracticable and further retention
in service is undesirable and against the aforesaid
show cause notice the petitioner filed a reply
which was considered by the respondents and a order
was passed on 3.2.1995 dismissing the petitioner
from service. Being aggrieved by the said order
the petitioner preferred a statutory appeal to the
Director General, Board Security Force. The
aforesaid appeal of the petitioner was rejected by
the Competent Authority on 28.7.1995 and hence the
present petition.
4. Counsel appearing for the petitioner
submitted that the requirement and the essential of
the BSF Rules have not been complied with while
issuing the show cause notice as also while issuing
the final order passed by the respondents and,
therefore, the impugned show cause notice as also
the Final order are liable to be set aside. In
support of the aforesaid contention, counsel relied
upon the decision of the Division Bench of this
Court in Sees Ram v. Union of India and Ors.,
. It was
also submitted that although a Court of Inquiry was
held against the petitioner, no notice of the same
was given to the petitioner as required under Rule
173(8) of the BSF Rules and, therefore, the
respondents could not have relied upon the findings
of the said Court of Inquiry while issuing the
impugned order which also stands vitiated. It was
also submitted that Rule 22 of the BSF Rules in
terms of which action is being taken by the
respondents mandates furnishing of the report on
the basis of which the impugned show cause notice
was issued and since such report was not supplied
by the respondents Along with the said notice,
consequent action thereupon is illegal and void.
5. Counsel appearing for the respondents, I
however, refuted the aforesaid allegations and
submitted that, the petitioner remained absent from
duties without leave and that communications were
sent to the petition to re-join duties, to which
the petitioner did not pay any heed to and,
therefore, as he was absent from duties no trial
could be held against the petitioner as he was
absent unauthorisedly and, therefore, the
provisions of Rule 22 of the BSF Rules became
attracted in the present case. It was submitted
that the trial having become impractical in view of
the absence of the petitioner, no error was
committed by the respondents in proceeding against
the petitioner under the aforesaid provisions. It
was also submitted that all the pre-requisite and
the essential conditions required to be complied
with under the said provision were duly complied
with and, therefore, the allegation is misconceived
and is liable to be rejected. It was also
submitted that for holding the Court of Inquiry no
notice is required to be given and in this
connection reliance was placed on the provisions
of Section 62 of the BSF Act. It was also
submitted that the reports were received about the
unauthorised absence of the petitioner from duty
and the said Fact was intimated by the respondents
to the petitioner in the impugned notice and,
therefore, there was no necessity of sending any
further report as the show cause notice contained
the substance of the reports received against the
petitioner on the basis of which the impugned show
cause notice was issued to the petitioner.
6. In the light of the aforesaid submissions
of the counsel appearing for the parties, I
examined the records of the case and on the basis
thereof proceed to deliver my decision in the case
recording reasons thereof. The petitioner was
unauthorisedly absent and did not report for duty.
Accordingly, the Court of Enquiry was ordered
against the petitioner. On the basis of the result
of the said Court of Inquiry proceedings, show
cause notice was issued to the petitioner stating
therein that reports relating to his absence from
duties have been received and that the competent
authority was satisfied that his trial by Security
Court Force was impracticable and that he was of
the further opinion that further retention of
service of the petitioner was undesirable and
accordingly the aforesaid show cause notice was
issued intimating to the petitioner tentative
proposal of dismissal of the petitioner from
service with a direction to him to place his
defense against the aforesaid imposition of
proposed penalty. The petitioner submitted his
reply to the aforesaid show cause notice which was
considered by the respondents and thereafter the
impugned order was passed as the said reply of the
petitioner was found to be not satisfactory. As
the competent authority was satisfied that the
petitioner was absent without any reasonable cause
and that his further retention in service was
undesirable, the impugned order was passed on
3.2.1995 dismissing the petitioner from service
with effect from the same date.
7. Counsel appearing for the parties agreed
that the relevant provisions which would govern the
instant case is the amended provision of Rule 22 of
the BSF Rules, which were amended by the Amendment
Rules of 1990 and published in the Gazette of India
on 1.6.1990. The aforesaid amended provisions of
Rule 22 read as follows:-
“22. Dismissal of removal of persons
other than officers 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 move 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 has 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 mis-conduct 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
with-hold from disclosure any such report
or portion thereof, if, in his opinion
its disclosure is not in the public
interest.
(3) The competent authority after
considering his explanation and defense,
if any, may dismiss or remove him from
service with or without pension:-
Provided that a Deputy Inspector 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 the
Director General.”
8. A reading of the aforesaid provisions
would indicate that when the competent authority
proposes to terminate the services of a person
subject to the Act other than an officer, he would
be given an opportunity by the competent authority
empowered to dismiss or remove him, to show cause
in the manner specified in Sub-rule (2) against
such action.
9. Sub-rule 2 of Rule 22 provides that when
after considering the reports on the mis-conduct 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.
10. Sub-rule 3 of Rule 22 provides that the
competent authority after considering his
explanation and defense, if any, may dismiss or
remove him from service with or without pension.
Therefore, a power is vested on the competent
authority to dismiss or remove a person other than
an officer after complying with the procedure and
the provisions of Rule 22 of the BSF Rules. The
said Rule requires that in an appropriate cause, the
competent authority may dispense with the trial if
according to the said competent authority, the
trial of such a person is inexpedient or
impracticable and when he is also of the opinion
that his further retention in service is
undesirable. When such satisfaction and opinion is
arrived at by the competent authority, a show cause
notice is to be issued to the concerned person
where after the order could be passed as against the
said person dismissing or removing him from
service.
11. It was contended by the counsel appearing
for the petitioner that when unauthorised absence
is considered as a misconduct under the BSF Act and
Rules framed there under, the entire procedure laid
down for a trial to try an offence for misconduct
is always required to be complied with and followed
and the summary procedure as prescribed under Rule
22 of the BSF Rules cannot be resorted to by the
respondents. In my considered opinion, the said
contention cannot be upheld. The power given to
the competent authority under Section 11(2) of the
BSF Act empowers the competent authority, namely,
the Commandant to dismiss or remove from service
any person under his command other than an officer
or subordinate officer. The said power read with
Rules 22 and 177 of the said Rules is an
independent power which can be validly exercised by
the Commandant as prescribed officer and it has
nothing to do with the power of the Security Force
Court for dealing with the offences such as absence
from duty without leave or overstaying leave
granted to a member of the Force without sufficient
cause and to award punishment for the same. The
aforesaid conclusion is by now a settled law in
view of the decision of the Supreme Court in
GAURANGA CHAKRABORTY v. STATE OF TRIPURA AND
ANR., . In the said
decision, the Supreme Court held that the services
of the enrolled persons under the BSF Act are
governed by the provisions of the Act as well as
the Rules framed there under and that the power
under Section 11(2) of the Act empowering the
prescribed authority i.e. the Commandant to
dismiss or remove from service any person under his
command than an officer on a subordinate
officer read with Rule 177 of the said Rules, is an
independent power which can be validly exercised by
the Commandant as a prescribed officer and it has
nothing to do with the power of the Security Force
Court for dealing with the offences and such
absence from duty without leave on overstaying
leave granted to a member of the Force without
sufficient cause and to award punishment for the
same. The aforesaid position settled by the
Supreme Court was again reiterated in the decision
of Union of India and Ors. v. Ram Phal reported
in 1996 (2) SLR 297. In the aforesaid decision,
the Supreme Court held that when a show cause
notice is issued in terms of Section 11 of the BSF
Act read with Rules 22 and 177 of the BSF Rules, no
further enquiry was required to be held and when
the personnel did not reply to the notice and there
was no denial of the allegations and there was no
request to hold an enquiry, then it was not
incumbent upon the Director General to appoint an
enquiry officer to conduct an enquiry in the manner
prescribed by Rule.
12. The prescribed procedure was followed
before passing the dismissal order and, therefore,
the order of dismissal was upheld by the Supreme
Court in the aforesaid decision.
13. Counsel appearing for the petitioner
relied upon the decision of this court in Ajaib
Singh v. Union of India, reported in 1997 (4) DRJ
710 as also the decision of Division Bench of this
court in Somvir and Ors. v. Union of India and
Ors. reported in Vol. 68 1997 DLT 806 and also the
decision in Sees Ram v. Union of India reported
in 1996 (7) SLR 617. In Ajaib Singh’s case
(supra), it was found by a Single Judge of this
court that no satisfaction was recorded by the
competent authority in the said show cause notice
issued that the trial of the petitioner of the said
case was inexpedient or impracticable and in
absence of such satisfaction recorded in the show
cause notice, the service of the petitioner could
not have bene dispensed with in exercise of the
power vested under the provisions of Section 11(2)
of the Act. In the instant case, such satisfaction
that the trial of the petitioner was inexpedient or
impracticable, is duly recorded in the show cause
notice issued to the petitioner and, therefore, the
facts of the said case are distinguishable with the
facts of the present case. Therefore, the ratio of
the aforesaid decision is not applicable in the
present case. In Somvir’s case (supra), the
Division Bench of this court held that even an
opinion was not formed by the competent authority
that it was not feasible to try the petitioner by
Security Force Court and in that context it was
held by the Division Bench that the service of the
petitioner could not have been dispensed with in
exercise of the powers under Section 11(2) of the
Act. The decision of the Division Bench in the
case of Sees Ram (supra) is also to the same
effect. Thus, it is clearly established that the
facts of the aforesaid cases are different from the
facts of the case in hand.
14. In Gouranga Chakraborty’s case (supra) it
was held by the Supreme Court that the services of
the enrolled persons under the BSF Act are governed
by the provisions of the Act as well as the Rules
framed there under and that the power under Section
11(2) of the Act empowering the prescribed
authority i.e. the Commandant to dismiss or remove
from service any person under his command other
than an officer or a subordinate officer, is an
independent power which can be validly exercised by
the Commandant as a prescribed officer after
complying with the procedure thereof. Therefore,
the power of the Commandant to take resort to the
power vested on him under Section 11(2) of the Act
read with Rules 22 and 177 of the Rules, cannot be
questioned, which is an independent power and could
be exercised by the competent officer when such
action is called for in a particular case. In the
present case, the competent authority has recorded
its satisfaction and opinion in the show cause
notice itself that the petitioner was
unauthorisedly absent from duty and that the trial
by the Security Force Court was inexpedient or
impracticable and that his further retention in
service was undesirable. The pre-condition as
mentioned in Rule 22 of the Rules is, therefore,
satisfied in the present case.
15. In the reply submitted to the show cause
notice the petitioner did not state that he is in
any manner prejudiced in submitting his reply for
want of any report. He also did not submit any
request for furnishing any documents to him. The
report to which mention is made in the show cause
notice was only in respect of the fact that the
petitioner was unauthorisedly absent from duties.
The petitioner himself knew about the said fact
and, therefore, it was not necessary to submit any
report or document to the petitioner in that
regard. Even, otherwise, since the allegations in
the report received against the petitioner were
substantially communicated to the petitioner, no
prejudice was caused to the petitioner in any
manner.
16. Therefore, all the contentions of the
counsel appearing for the petitioner are found to
be without any merit. The preconditions for making
out a case under Section 11 of the BSF Act read
with Rules 22 and 177 of the BSF Rules have been
satisfied and were complied with and the entire
procedure as laid down therein was followed by the
respondents and, no prejudice was caused to the
petitioner in any manner. In that view of the
matter no interference is called for to the action
of the respondents.
17. In the light of the aforesaid
conclusions, I hold that there is no merit in this
writ petition and the writ petition stands
dismissed.