Dwarika Nath Mishra Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
- orderwhereas, i have gone through the case of absence without leave against no. 89005099 const dwarika nath mishra, d coy of this unit. he was given opportunity to explain the cause for his prolonged absence vide this office letter no. d.ix/estt-i/19/92/12804 dated 10 dec 1992, 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 the service is undesirable. i, therefore, dismiss him from service with effect from 28 dec 1992 (fn) under rule 177 of bsf rules 1969. his absence period from 29 sep 1992 to 27 dec 92 is hereby treated as 'dies non'.2. govt dues rs. 1399/- (rupees one thousand three hundred ninety nine) and rs. 351/- (rupees three hundred fifty one) total rs. 1750/on account of cost of deficient.....

Judgment:
ORDER

Whereas, I have gone through the case of absence without leave against No. 89005099 Const DWARIKA NATH MISHRA, D Coy of this unit. He was given opportunity to explain the cause for his prolonged absence vide this office letter No. D.IX/Estt-I/19/92/12804 dated 10 Dec 1992, 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 the service is undesirable. I, therefore, DISMISS him from service with effect from 28 Dec 1992 (FN) under Rule 177 of BSF Rules 1969. His absence period from 29 Sep 1992 to 27 Dec 92 is hereby treated as 'DIES NON'.

2. Govt dues Rs. 1399/- (Rupees one thousand three hundred ninety nine) and Rs. 351/- (Rupees three hundred fifty one) Total Rs. 1750/on account of cost of deficient Govt. clothing and equipment and over payment made to the individual on account of pay Oct 92, may be recovered from his pay and allowances, Bonus, TA, RM due to him and deposited in Govt. Treasury.

Sd/-

(G.S. Bal)

Commandant

19 BN BSF'

2. The grievance of the petitioner is that the order, dismissing him from service, has been passed without holding an inquiry. In precise, his case is that dismissal order is violative of Service Rules, CCA Pension Rules, Laws and By-laws governing his service besides being illegal and arbitrary against all cannons of fair play and natural justice, and that by virtue of said order, respondents have deprived the petitioner from his valuable right of service and, thus, is violative of Articles 14 & 16 of the Constitution of India.

3. The case of the respondents on the other hand, projected in their reply to the writ petition, is that several opportunities were given to the petitioner to join his duties by sending him numerous communications but he never joined and as such he was dismissed after conducting Court of Inquiry and issuing a show-cause notice, to which he did not respond and file reply.

4. In order to appreciate the respective contentions of the parties, the facts in brief, may be noticed.

5. Petitioner was enrolled as a Constable in BSF on 24/12/1988. On the completion of his basic training at STC BSF Kharka Camp, Hoshiarpur, Punjab, he was posted in 19th Bn. on 25/12/1989 vide Ftr HQ BSF Jodhpur Signal No. A/4412 dated 21 Sept 1989. The petitioner regularly overstayed the leave during his past service for which he was punished twice; (i) Under Section 19(b) awarded 14 days Rigorous Imprisonment in Force Custody; and (ii) U/S 19(a) awarded 28 days Rigorous Imprisonment in Force Custody by the Commandant 19 Bn BSF. The petitioner, however, proceeded on 15 days casual leave w.e.f. 08/09/1992 to 28/09/1992 by making an application on the ground that his mother has expired. The petitioner, however, did not join back after the expiry of the leave. It is stated in the petition that on reaching home, the petitioner learnt that his mother was alive but in serious condition and admitted in hospital at Deoria. He further stated to have applied for the extension of his leave in narrating about the precarious condition of his mother vide application dated 14 September, 1992, accompanying a medical certificate through registered post. Instead of accepting the request of the petitioner for extension of leave, a warning letter dated 16/10/1992 was received, in asking the petitioner to resume the duty. Another letter is stated to have been dispatched by the petitioner in explaining the condition of his ailing mother and requested for extension of leave on 21/10/1992. The petitioner, however, again received a warning letter dated 10/12/1992 informing him about his absence and overstayal. The petitioner further stated that since the condition of his mother had not improved, he again requested for the extension of his leave and sent an application dated 21/12/1992, in explaining the details of sickness of his mother but the respondents, without considering the explanation of the petitioner, passed the impugned order dated 28/12/1992 by which he was dismissed from service and period of his absence from 29/09/1992 to 27/12/1992 treated as 'Dies-non'. Representation made to the Director General of BSF against the order of dismissal, however, stood rejected without giving him an opportunity of being heard. Again he made another representation to the Ministry of Home Affairs, Directorate General Border Security Force, Personnel Directorate Establishment Section, New Delhi, requesting for his re-instatement in explaining his miserable condition and deplorable circumstances of his family. When his representation was not decided by the Ministry of Home Affairs, a writ petition came to be filed in the Allahabad High Court, which too stood disposed of with a direction to the Secretary, Ministry of Home Affairs, Govt. of India, to dispose of the petitioner's representation and communicate the decision to the petitioner within a period of three months from the date of receipt of a certified copy of the order. Vide Order No. 13/68/94- RECTT/BSF/2125-29 dated 23/03/1995, Additional Deputy Director (Estt.) informed the petitioner about his representation having been rejected by the Competent Authority of the Ministry of Home Affairs, being devoid of merit.

6. Respondents were put on notice and have filed counter affidavit stating therein that no procedural irregularity in passing the impugned order has been committed by the respondents nor any right, statutory or constitutional, has been violated which necessitating judicial review by the Court. It was also stated that Constable- Dwarika Nath Mishra during the period of his past service in the Unit regularly overstayed the leave granted to him and the details given read as under:-

'(a) The Constable overstayed by two days when he was granted earned leave for 30 days from 14 Dec 89 to 12 Jan 90. The period of overstayal was regularized by granting leave.

(b) He again overstayed by 17 days when he was granted 10 days casual leave w.e.f. 11 June 90 to 23 June 90. The period of overstayal was regularized by granting leave.

(c) The Constable overstayed by 48 days from 6 Feb 91 to 25 Mar 91 when he was granted 27 days Earned Leave from 11 Jan 91 to 5 Feb 91. He was charged Under Section 19(b) and awarded 14 days RI in Force Custody by the Commandant 19 Bn BSF.

(d) The Constable absented himself without leave on 4 Sep 91 and reported back on 26 Nov 91 after unauthorized absence of 84 days. He was charged Under Section 19(a) and awarded 28 days RI in Force Custody by the Commandant 19 Bn BSF.'

7. The respondents further pointed out that after the expiry of 15 days' leave sanctioned on account of ailment of his mother, he did not resume duties. Consequently, a communication was addressed to him to report back to duties but without any compliance. On completion of 30 days absence, a CGI was ordered under Section 62 of the BSF Act. In view of the opinion of the Court of Inquiry and remarks of the Commandant, a show-cause notice was issued to him with regard to the proposed termination of service by way of dismissal. The petitioner was, however, given an opportunity of being heard in his defence or against the proposed dismissal on or before 27/12/1992. Respondents further stated that the petitioner, however, did not respond to the show-cause notice and avail the opportunity towards anything in his defense. Pen-ultimately, order of dismissal from service, however, was passed by the respondents on 28/12/1992 and treated the period effective from 29/09/1992 to 27/12/1992 as 'Diesnon'. Respondents, further stated that in order to ascertain about the truth of the fact in regard to the death of the petitioner's mother, it was got verified from civil police which confirmed that the mother of the petitioner was alive and under treatment. Despite various reminders given to the petitioner to resume his duties, he did not do so. Respondents also denied to have received any application for extension of leave and in particular the application dated 21/10/1992, copy of which has been annexed with the writ petition meaning thereby that these applications have subsequently been fabricated. Respondents further stated to have issued a show-cause notice of proposed dismissal from service to the petitioner and sent through registered but he did not avail the opportunity against the proposed action to urge his defence.

8. The representation of the petitioner to the Ministry of Home Affairs was considered after going through all facts and circumstances of the case and stood rejected by the Competent Authority being found without any merit and accordingly, the decision was communicated to the petitioner. A Court of Inquiry was held under the BSF Act and Rules. It was on the recommendation of the Court of Inquiry, a show-cause notice was issued to the petitioner providing him an opportunity to advance his reply to the proposed termination from service. When the opportunity was not availed to defend the case by the petitioner, dismissal order by the Competent Authority under Section 11(2) of the B.S.F. Act read with Rule 177 of the BSF Rules, was passed on 28/12/1992. It was further reiterated by the respondents that the continued overstayal without justification and ignoring the proposed action resulted in order of dismissal in accordance with the BSF Act and the rules framed thereunder.

9. I have heard learned counsel appearing for the respective parties in extenso and also gone through the record meticulously.

10. Mrs. Kour, learned counsel appearing for the petitioner, at the threshold has submitted that the procedure provided under Sections 20 & 21 of the BSF Act 1968 and Rule 177 of the BSF Rules, 1969 (hereinafter for short referred to as 'the Act' and 'the Rules' respectively) was not followed and as such impugned order of dismissal is bad in law. Whereas the submission of learned counsel appearing for respondents is that the petitioner was informed by several notices and reminders about his absence without leave and asked to resume duty. The petitioner, however, did not respond to the reminders including the warning letters and ultimately the Court of Inquiry was ordered under Section 62 of the BSF Act on the completion of 30 days' absence. Further submission of the respondents is that a show-cause notice, for proposed termination of his service based on the opinion of the Court and remarks of the Commandant, was issued to the petitioner on 10/12/1992 but there was no response to the show-cause notice. It was thereafter impugned order of dismissal of petitioner was passed and period of overstayal was regularized as 'Dies-non'.

11. Mrs. Surinder Kour, further, submitted that no show-cause notice of the proposed dismissal from service and providing him an opportunity of being heard or urge in his defence was ever issued to him before the impugned order of dismissal from service passed by the respondents and placed reliance upon the judgment of the Apex Court in 'Union of India and Ors v. Ram Phal' (1996) 7 Supreme Court Cases 546. The Supreme Court in this case did hold that Section 11(2) of the Act does not postulate exercise thereunder without holding an inquiry as provided under the Rules. Reference in this regard was made to Rules 20 & 21 of the Rules providing termination of service of an officer on account of misconduct and also appointment of an Inquiry Officer and the procedure to be followed by him. However, on facts, in the said case the Supreme Court found that since the delinquent was called upon 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 relied 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.

12. However, in the present case, I find that there is a reference of the show-cause notice dated 10/12/1992 stated to have been issued to the petitioner in respect of the proposed dismissal from service and providing him an opportunity of being heard and urge his defence, and in case the petitioner has to say anything against the proposed action he may do so before 27/12/1992. A copy of the show-cause notice has been annexed with the counter affidavit filed by the respondents. This notice is stated to have been issued to the petitioner through registered A/D but neither the receipt of the registered letter has been annexed with the counter nor found on record of dismissal of the petitioner produced by the respondents. This clearly shows that the contention of the respondents with regard to the service of show-cause notice of proposed dismissal from service on the petitioner to which he did not reply remains unsubstantiated through record.

13. Under no circumstances, it can be said that the show-cause notice calling upon the petitioner to show-cause in respect of proposed dismissal from service for having remained absent for a long period and providing him an opportunity to urge his defence was ever received by him. In such a situation, the proceudure under Rules 20 & 21 of the BSF Rules were required to be followed. Provisions of Rule 20 of the Rules contemplates that if the prescribed authority comes to the conclusion that on account of misconduct further retention of a member of the Force in service is undesirable, the person concerned is to be apprised of the charges upon which it is proposed to take action against him in regard to dismissal or removal from service or reduction in rank. Rule further makes it mandatory for the prescribed authority to furnish particulars of allegations and the report of the investigation in cases where allegations have been investigated alongwith the statements of witnesses, if any, recorded and the copies of the documents, if any, intended to be used against him. In case it is not in public interest to disclose the evidence or documents, the prescribed authority is entitled to withhold the copies of such evidence or documents, but in that case it has to record reasons for with-holding such documents or evidence. It is only thereafter that the person concerned has to submit reply within the time specified. Failure to submit an explanation entitles the Authority to proceed ex-parte against the person concerned. In case the person concerned expressed wish to cross examine any witness or to produce the witnesses in defence, the authority is to appoint an Enquiry Officer who shall be an officer superior to the person against whom it is proposed to take action and the Enquiry Officer, after following the procedure laid down in Rule 21 and on conclusion of the enquiry, is to transmit its finding alongwith the evidence recorded, to the authority under whom the person whose conduct is under enquiry is serving at the time of alleged misconduct. On receipt of the report of the Enquiry Officer, the authority is to go through the allegations against the person intended to be dismissed or removed from service, his evidence and the proceedings of enquiry, if any, and in case, on consideration of the same, it finds that the allegations are proved, it may dismiss or remove such person from service.

14. The challenge to the impugned order is on the ground that the same was passed without following the mandatory Rules in as much as no charge-sheet was served upon the petitioner. Challenge is also on the ground that no material on the basis of which the Commandant formed his opinion that the petitioner's retention in the service is undesirable on account of his long absence without sanction. On the other hand, the impugned order is being defended by the respondents on the ground the show-cause notice dated 10/12/1992 was served on the petitioner but he did not reply. Learned counsel appearing for respondents has not been able to point out any evidence on record that the show-cause notice issued was ever served upon the petitioner. He also could not show any evidence from record that alongwith show cause notice, material to be used against the petitioner, was also sent. Therefore, in the absence of service of show cause notice or failure to supply material to be used against the petitioner, it is difficult to accept that inquiry did not suffer from any procedural infirmity. In Union of India and Ors. v. Dinanath Shantaram Karekar and Ors., AIR 1998 SC 2722, the Apex Court while dealing with such a situation held that:

'Where the disciplinary proceedings are intended to be initiated by issuing a charge-sheet, its actual service is essential as the person to whom the charge-sheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings. So also, when the show-cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him. Since in both the situations, the employee is given an opportunity to submit his reply the theory of 'Communication' cannot be invoked and 'Actual Service' must be proved and established.'

15. In the present case, as noticed earlier, neither the show cause notice was ever served upon the petitioner nor any material on the basis of which the Authority had come to the conclusion that his further retention in service is undesirable, was sent alongwith the show-cause notice and, therefore, the order of dismissal is not sustainable in law being in violation of Rules 20 and 21 of the BSF Rules.

16. Learned counsel appearing for respondents, however, submitted that members of Border Security Force being part of Armed Forces, are not civil servants and, therefore, cannot invoke the principles of natural justice and Article 311 of the Constitution of India is not applicable. It is true that the provisions of Article 311, of the Constitution of India do not apply to the case of the petitioner who is a member of the Armed Forces but the petitioner has not challenged the order of dismissal being in violation of Article 311(2) of the Constitution of India but the challenge is on the ground that the same is in violation of Rules 20 & 21 of the Rules. This plea, therefore, put across by the respondents' counsel has no substance to merit consideration.

17. In this case, the petitioner was a Constable, so under Section 11(2) of the Act read with Rule 177 of the Rules, he could be removed from service by the Commandant only after the procedure under Rules 20 & 21 has been followed. Since the procedure as provided under the rules has not been followed, the impugned order cannot be sustained.

18. Consequently, the impugned order of dismissal of petitioner from service passed by the Commandant, respondent No. 7, is quashed. Respondents are directed to re-instate the petitioner in service who shall be entitled to all the consequential benefits including monetary benefits. However, respondents shall be entitled to hold an enquiry against the petitioner in accordance with the procedure provided under the BSF Act and Rules, if they so choose.

19. Record produced by the respondents shall be returned against proper receipt.

20. Writ petition stands disposed of in the terms indicated above.