Sripurna Chandra Nahak. Vs. Government of India and ors. - Court Judgment

Excerpt:
the petitioner in this writ petition has challenged the inaction on the part of the opp. parties in not considering his case for grant of minimum pension despite the fact that the petitioner has completed 16 years of service in border security force (hereinafter referred to as 'the b.s.f.') and, thereafter, he has been dismissed from service on the ground of unauthorized absence for a period of 5 (five) months 17 days without any departmental proceeding. 2. it is the case of the petitioner that upon a selection being conducted, he was selected and appointed as a sweeper on 14.8.1983 in the b.s.f. and was posted under the control of the commandant, 78 battalion b.s.f. he also underwent training and after completion of training he joined under the commandant, b.s.f. according to the.....

Judgment:
The petitioner in this writ petition has challenged the inaction on the part of the opp. parties in not considering his case for grant of minimum pension despite the fact that the petitioner has completed 16 years of service in Border Security Force (hereinafter referred to as 'the B.S.F.') and, thereafter, he has been dismissed from service on the ground of unauthorized absence for a period of 5 (five) months 17 days without any departmental proceeding.

2. It is the case of the petitioner that upon a selection being conducted, he was selected and appointed as a Sweeper on 14.8.1983 in the B.S.F. and was posted under the control of the Commandant, 78 Battalion B.S.F. He also underwent training and after completion of training he joined under the Commandant, B.S.F. According to the petitioner, he fell sick and remained on leave on medical ground from 13.10.1998 7.11.1998 with due permission of his higher authorities. But as his health condition deteriorated and it was not possible on his part to continue in the said Battalion, he returned to his native village at Gopalpur in the district of Nayagarh and was under treatment. Since his health condition did not improve, he applied for extension of leave praying for grant of leave for further medical treatment. On 28.4.1999, the Second-in- Command passed an order dismissing the petitioner from service with retrospective effect.

3. Mr. Mohapatra, learned counsel for the petitioner submitted that the Second-in-Command, who issued the dismissal order under Annexure-2 to the petitioner was a subordinate officer to the appointing authority and, as such, was not competent under law to issue the order of dismissal. He further submitted that an order of dismissal with retrospective effect is unsustainable in absence of any rule to that effect. He also submitted that the petitioner having made application for extension of leave, dismissing him without holding any enquiry or proceeding is in gross violation of the principles of natural justice. According to Mr. Mohapatra, since the petitioner has completed 16 years of service, he is entitled to get pension.

4. A counter affidavit has been filed by the Deputy Inspector General, B.S.F. on behalf of the opp. party, refuting the allegations made by the petitioner and highlighting the callousness of the petitioner in discharging his duty. It has been also stated that the petitioner was inflicted with punishment due to irregularities on two different occasions, once for 28 days R.I. in Force Custody on 7.6.1988 for an offence under section 19 (b) of the B.S.F. Act and 61 days unauthorized absence period was treated as EOL. Again, for 14 days R.I. in Force Custody on 4.11.1989 for an offence under section 19 (b) of the B.S.F. Act, and 75 days of unauthorized absence period was treated as EOL. The petitioner also did not respond to the letters including a show cause notice issued to him on 24.3.1999. Keeping in view the conduct and character of the petitioner, he was dismissed from service with effect from 24.4.1999. The writ petition having been filed after six years from the date of issuance of the order of dismissal, the same should be dismissed on the ground of latches. The opp. parties have further relied upon Rule 41 of C.C.S.(Pension) Rules, 1972 in support of the contention that a Government servant, who is dismissed or removed from service, shall forfeit pension and gratuity. With regard to holding of departmental proceeding, it has been stated in the counter affidavit that the petitioner was dismissed from 24.4.1999 (F.N.) due to his prolong absence from duty from 8.11.1998 and before dismissing him, all the departmental formalities were completed and show cause notice was also served upon the petitioner vide office letter dated 24.3.1999. Since the petitioner did not respond to the said show cause notice, he was dismissed from service and his unauthorized absence was treated as Dies-Non for all purpose in accordance with Government of India's decision No. (1) below Rule 25 of C.C.S.(Leave) Rules, 1972 . Hence, it was contended that there is no illegality in dismissing the petitioner from the service and the petitioner is not entitled to any pension as claimed. The claim of the petitioner that he has prayed for extension of leave is denied in the counter affidavit.

5. A rejoinder affidavit has been filed by the petitioner stating that when his representations were not heard by the authorities, he was compelled to approach this Court and there are no latches on the part of the petitioner in knocking the doors of justice.

6. In the case of Sri Gouranga Chakraborty v. State of Tripura and another, AIR 1989 SC 1321, the Supreme Court was considering a case of a constable serving in 92 Battalion, B.S.F. in Tripura from 1966. The facts are akin to the present case with a difference that in the said case, the aggrieved constable filed a civil suit challenging his dismissal which came up before the apex Court. The ground of challenge was that the order of dismissal passed by the Second-in- Command, is illegal and unwarranted inasmuch as there was no order made by the Security Force for passing the impugned order of dismissal for an offence made under section 19 of the B.S.F. Act, 1968 following the procedure contained in Chapters- VIII to XI of the Rules framed under section 141 of the said Act. The apex Court observed that the B.S.F. Act has been enacted with a view to provide for the constitution and regulation of an armed force of the Union for ensuring the security of the borders of India and for matters connected therewith by the Parliament and the same has been enforced by notification with effect from 20.2.1969. The Supreme Court quoting section 11 and referring to other provisions of the B.S.F. Act held as follows:-

"We have scrutinized the relevant provisions of the B.S.F. Act as well as the B.S.F. Rules framed thereunder and we have no hesitation to hold that the power under S.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 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 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 provision of sub-sec.(4) of S.11 which enjoins that the exercise of the power under the aforesaid Section shall be subject to the provisions of the Act and the Rules does not signify that the power to dismiss a person from service by the Commandant for his absence from duty without leave without any reasonable cause or for overstaying leave without sufficient cause and holding him as undesirable cannot be exercised unless the Security Force Court has awarded punishment to that person in accordance with the procedure prescribed by law. The Prescribed Authority, i.e., the Commandant is competent to exercise the power under S. 11(2) of the said Act and to dismiss any person under his command as prescribed under Rule 177 of the BSF Rules. It is also to be noticed in this connection that Rule 6 of the said Rules has specifically provided that in regard to matters not specifically provided in the Rules it shall be lawful for the Competent Authority to do such thing or take such action as may be just and proper in the circumstances of the case. In this case though any procedure has not been prescribed by the Rules still the Commandant duly gave an opportunity to the appellant to submit his explanation against the proposed punishment for dismissal from service for his absence from duty without any leave and overstaying leave without sufficient cause. The appellant did not avail of this opportunity and he did not file any show cause to the said notice. Thus the principle of natural justice was not violated as has been rightly held by the High Court. No other point has been urged before us by the learned counsel appearing on behalf of the appellant".

7. Applying the ratio of the aforesaid decision and taking note of the contentions raised by the opp. party in paragraph-11 of the counter affidavit that the order of dismissal dated 24.4.1999 is not an order dismissing the petitioner retrospectively, but from the date, the absence of the petitioner was taken into consideration, i.e., 23.4.1999, and further, the Second-in-Command was the officiating Commandant, who was competent to pass the order of dismissal, this Court does not find any merit in the writ petition.

8. The writ petition is accordingly dismissed, but in the circumstances, without cost.