ORDER
V.K. Jhanji, J.
1. In this petition filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, challenge is to order No. Estt/56 BN/DISC/94/7472-84 dated 9.6.1984, passed by respondent No. 3 whereby the petitioner has been dismissed from service and period of absence with effect from 1.3.1994 to 9.6.1994 has been ordered to be treated as dies non.
2. The grievance of the petitioner is that order dismissing him from service has been passed without any enquiry. In precise, his case is that dismissal order is violative to the Service Rules, C.C.S. Pension Rules, Laws and Bye-Laws governing his service besides being illegal, arbitrary, against all canons of fair play and natural justice and that by virtue of the said order unblemished service record of the petitioner has been set at naught.
3. On the other hand, the case of the respondents is that the petitioner was given several opportunities to join his duty by sending him numerous registered letters but he never joined and, as such, he was dismissed from service after conducting a Court of enquiry and issuing a show cause notice.
4. In order to appreciate the respective contentions the parties, the facts in brief may be noticed.
5. Petitioner was enrolled as Constable in the Border Security Force on 1.7.1971 and in February 1988, he was selected for posting on deputation in the Ministry of External Affairs in which capacity he served in the Indian Embassy at Abu Dhabi as Security Guard till 11th July, 1993. Thereafter, petitioner was repatriated to the Head Quarters, I.G., B.S.F., Jammu. He was also sanctioned thirty days leave by the Ministry of External Affairs. The case of the petitioner is that after availing thirty days leave, which expired on 10.8.1993, he could not join his duty at Jammu due to serious sickness as he was suffering from Infective Hepatitis. According to the petitioner, he remained under treatment with effect from 18.9.1993 to 17.12.1993 at home and after recovery from the illness, he reported to the Headquarters, I.G., B.S.F., Jammu, on 21.12.1993, and submitted an application along with medical certificate for joining duty and requested to regularize the overstay period by granting half pay leave which he was entitled to under rules. Petitioner also made another application on the same date seeking voluntary retirement on compassionate grounds. But no action as required under Rule 48 of C.C.S. Pension Rules was taken on the said application. Further, according to the petitioner, instead of accepting his application for voluntary retirement, he received letter dated 2.2.1994 in which he was asked to report for duty by or before 10th February, 1994 and only on his joining, request for leave would be considered. In response to the said letter petitioner reported for duty on 11.2.1994 and submitted an application again requesting for voluntary retirement and for depositing there months salary in lieu of notice for retirement. Instead of accepting his prayer, the petitioner was transferred to 56 Bn., B.S.F. Further, according to the petitioner, being sick he was not in a condition to serve any more and so he did not join at the new place of posting as referred to above. Petitioner, thereafter, made repeated requests for voluntary retirement but, instead of accepting his prayer, he has been dismissed from service. It is stated that he had put in more than twenty two years unblemished service to the entire satisfaction of his superiors and had become entitled to all the retiral benefits inclusive of pay with effect from 11.7.1993 and all other benefits accruing from the service, but because of the dismissal order, he has been deprived of all the retiral benefits.
6. Upon notice of the writ petition, respondents have filed counter affidavit, stating therein that on his repatriation from deputation, the petitioner was posted to 56 BN BSF, vide Ftr. HQ B SF, Jammu, Order No. D-14/Estt-II/93/91-96 dated 4.1.1994, when the unit was deployed at Akhnoor. He was relieved by Ftr HQ BSF, Jammu, vide their movement Order No. Estt/D. 1/Move/91/669-72 dated 18.2.1994 for reporting to his new place of posting, i.e. 56 BN BSF, and was also informed vide registered letter No. Estt/56/Absent/ 94/3981-82 dated 29.3.1994 at his home address to join his duty forthwith with information to Ftr HQ BSF, Jammu. Further according to the respondents, as per Section 62 of BSF Act and BSF Rules 170 to 176, One Man Court of Enquiry was ordered and show cause notice was also sent to the petitioner but he did not submit any defence nor reported back or sent any reply for the proposed action. According to the respondents, the name of the petitioner was struck off from the strength of the unit with effect from 9.6.1994, because he had failed to join duty despite numerous registered letters sent to him. It is stated that dismissal was ordered after conducting Court of enquiry and issuance of show cause notice.
7. I have heard learned Counsel for the parties and have carefully gone through the record of this case.
8. Section 11(2) of the Border Security Force Act, 1968 (hereinafter referred to as the 'B.S.F. Act') provides for dismissal, removal or reduction from service by an officer not below the rank of Deputy Inspector General or any prescribed officer under his command other than an officer or a subordinate officer of such rank or ranks as may be prescribed. Subsection (4) provides that exercise of any power under this section shall be subject to the provisions of the Act and Rules. Rule 21 (hereinafter referred to as the 'B.S.F. Rules') of B.S.F. Rules provides for appointment of an Enquiry Officer and the procedure to be followed by him. Rule 22 provides for imposition of penalty. It reads as under :
'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 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 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 defence :
Provided that the Competent Authority may withhold from disclosure any such report of portion thereof, if, in his opinion, its disclosure is not in the public interest. (3) The Competent Authority after considering his explanation and defence 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 be Director General.'
9. Admittedly, in the instant case, procedure provided under Rule 22 was not followed and the order of dismissal has been passed without conducting any enquiry as provided therein.
10. The submission of the learned Counsel for the respondents is that no enquiry was required to be conducted as provided under Rule 22, because the proper Court of enquiry was conducted and thereafter show cause notice was given to the petitioner. In support of his submission, learned Counsel for the respondents cited judgment of the Supreme Court in Union of India v. Ram Phal, : [1996]2SCR1144 , on the other hand, the submission of the learned Counsel for the petitioner is that the judgment cited by the learned Counsel for the respondents is not applicable to the case of the petitioner.
11. On carefully going through the judgment cited, I find that the case of the petitioner is squarely covered by the aforementioned judgment of the Supreme Court.
12. Vide notice dated 2.2.1994, petitioner was informed that he had absented himself without leave with effect from 8.1.1994. He was advised to report to duty by or before 10.2.1994, failing which, he was informed that disciplinary action will be taken against him as per BSF Act and the Rules. Similar notices were issued to him on 29.3.1994, 6.4.1994 and 16.4.1994. Finally on 6.5.1994 a show cause notice was issued to him in which Commandant informed the petitioner that his further retention in service is undesirable because of long absence without leave and it was tentatively proposed to terminate his services by way of dismissal. Petitioner was called upon to show cause in his defence against proposed action on or before 26.5.1994. It was made clear that in case he has no defence to put forth against the proposed action then ex parte decision would be taken in this regard. Petitioner did not respond to the said notice nor submitted any defence to explain his long absence. In Ram Phal, (supra), the Supreme Court did hold that Section 11(2) of the Act does not postulate exercise thereunder without holding an enquiry as provided under the rules. However, on facts the Supreme Court found that since the delinquent was called upon to show cause to submit his defence for his long absence and also in regard to the proposal for dismissing him from service, nothing further was required to be done as the delinquent neither replied to the notice nor denied the allegations and no request to hold an enquiry was made. Their Lordships of the Supreme Court were of the view that prescribed procedure was followed before passing of the dismissal order. The facts of the present case are similar to the one decided by the Supreme Court and, therefore, it is erroneous to say that prescribed procedure as provided under Rule 22 was not followed before passing of the dismissal order.
13. Learned Counsel for the petitioner then contended that before dismissal order came to be passed, the petitioner had already applied for voluntary retirement and since no order was passed on the said request, the same would be deemed to have been accepted. I am not inclined to accept this submission of the learned Counsel for the petitioner.
14. It is true that voluntary retirement gives an option in absolute terms to a public servant to voluntarily retire after giving the requisite notice and after he has reached the qualifying age or rendered the qualifying service, as the case may be. It is a condition of service created by statutory provisions. Broadly speaking, there are three categories of rules relating to seeking of voluntary retirement after notice. In the first category, voluntary retirement automatically comes into force on expiry of notice period. In the second category also, retirement comes into force unless an order is passed during notice period withholding permission to retire and in the third category voluntary retirement does not come into force unless permission to this effect is granted by the Competent Authority. In such a case, refusal of permission can be communicated even after the expiry of the notice prior. It all depends upon the relevant rules. Reference in this regard may be made to State of Haryana v. S.K. Singhal, : [1999]2SCR714 and Tek Chand v. Dile Ram, : [2001]1SCR527 . It is not in dispute that the petitioner had rendered more than twenty two and half year qualifying service before making request for voluntary retirement. Rule 48-A, C.C.S. Pension Rules gives an option to a Government servant to seek voluntary retirement on completion of twenty years of qualifying service by giving a notice of not less than three months in writing to the Appointing Authority. Sub-rule (2) provides that notice of voluntary retirement given under Sub-rule (1) shall require acceptance by the Appointing Authority. Proviso to Sub-rule (2) provides that where the Appointing Authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. However, proviso to Sub-rule (1) bars a Government servant to seek retirement on completion of twenty years of qualifying service who was posted abroad in foreign based offices of the Ministries/Departments and unless after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year.
15. Petitioner though had given requisite notice seeking voluntary retirement and had also offered to deposit three months salary in lieu of notice for retirement but since he had not completed one year of service after resuming the charge in India on having been transferred from foreign assignment, his request could not have been accepted before completion of the said period. Vide notice dated 2.2.1994, petitioner was informed that his request for granting of leave, regularization of overstayed leave period and request for voluntary retirement would be considered by the Competent Authority on reporting for duty, but the petitioner did not report for duty. In such circumstances, it is erroneous to contend that the request of the petitioner for voluntary retirement on expiry of three months would be deemed to have been accepted.
16. Lastly, learned Counsel for the petitioner contended that punishing authority did not take into consideration the unblemished service record of the petitioner of more than twenty two years and the fact that the misconduct found proved against him did not involve moral turpitude. He submitted that in the facts and circumstances of this case, the punishment of compulsory retirement would have met the ends of justice and, therefore, punishment of removal from service may be substituted with that of compulsory retirement.
17. On the other hand, the learned Counsel for the respondents submitted that the discretion exercised by the punishing authority to impose penalty of removal from service does not suffer from any legal infirmity requiring interference under Article 226 of the Constitution of India.
18. The Supreme Court in various judicial precedents has expressed the view that the High Court and the Tribunal should be loathe to interfere with the discretion exercised by the Disciplinary Authority. The law has been settled that Disciplinary Authority and, on appeal, the Appellate Authority, being fact finding authorities, have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute their own conclusion on penalty and impose some other penalty. If the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the Disciplinary/Appellate Authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. Reference in this regard may be made to B.C. Chaturvedi v. Union of India, : (1996)ILLJ1231SC .
19. In Director General, PRF v. Ch. Sai Babu, : [2003]1SCR729 , the Supreme Court held as under:
'Normally, the punishment imposed by a Disciplinary Authority should not be disturbed by the High Court or a Tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant facts including the nature of the charges proved, the past conduct, penalty imposed earlier, the nature of duties assigned having due in regard to their sensitiveness, exactness expected and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works.'
20. In the present case petitioner had served for twenty two and half years and during the long period there was no complaint from any quarter regarding his behaviour, conduct, performance or integrity. In the counter the respondents have not even suggested that before absenting from duty with effect from 1.3.1994, the petitioner had committed any misconduct or any adverse remark was recorded in his Annual Confidential Reports. In my view the omission to consider the unblemished service record of the petitioner of twenty two and half years is sufficient to record the conclusion that the punishment is vitiated due to non-application of mind. I am, thus, inclined to agree with the learned Counsel for the petitioner that the punishment of dismissal from service imposed upon the petitioner has the effect of depriving the petitioner of pension and other retiral benefits which is wholly arbitrary and as such shocks the conscience of the Court.
21. In view of the above conclusion, I would have remanded the case to the Disciplinary Authority to reconsider the question of punishment of dismissal imposed upon the delinquent but, keeping in view the fact that the petitioner had already put in the qualifying service of twenty two and half years and had sought voluntary retirement, I am satisfied that no useful purpose would be served by remanding the case. I feel that ends of justice would be met by setting aside the punishment of dismissal from service and substituting the same with compulsory retirement with effect from 9.6.1994 i.e. the date from which the petitioner was dismissed from service.
22. In the result, the writ petition is partly allowed. Order dated 9.6.1994 enclosed with the writ petition as Annexure 'A' is upheld insofar as finding of guilty is concerned. However, the punishment of removal from service is quashed and the same is ordered to be substituted with that of compulsory retirement with effect from 9.6.1994. The period of absence with effect from 1.3.1994 to 9.6.1994 shall be treated as dies non. The respondents are directed to calculate the retiral benefits payable to the petitioner by treating him to have been compulsory retired. The exercise in this regard, shall be completed within a period of six months from the date certified copy of this order is supplied to the respondents, failing which respondents shall be liable to pay interest at the rate of 9% p.a. on expiry of six months, from the date of service of this order as aforesaid till actual payment is made to the petitioner.
23. Accordingly, in, view of the above, the writ petition is disposed of.