Date of Order:
03.05.2024
Bench:
Hon’ble Mr. Justice Sanjay Dhar, Judge
Parties:
Sita Devi Wd/o Sh.Gopal Ram resident of village Dudhwa Mitha P.O Rampura Baat District Churi (Rajasthan)
vs.
1. UOI through Home Secretary Ministry of Home Government of India New Delhi
2. Director General of BSF CGO Complex Lodhi Road New Delhi
3. Inspector General of BSF Frontier Headquarters Paloura Camp Jammu
4. Deputy Inspector General BSF Sector Headquarters Paloura Camp Jammu
5. Commandant 102 Bn BSF care of 56 AP.
IMPORTANT PROVISIONS
Border Security Force Act, 1968
Section 62: Inquiry into absence without leave.
Section 19: Absence without leave.
Section 11: Dismissal, removal or reduction by the Director General and by other officers.
OVERVIEW
The petitioner challenged the order whereby her husband had been terminated from service. And a further direction of release of family pension was sought.
ARGUMENTS ADVANCED BY THE APPELLANT
Petitioner’s husband was appointed as constable in BSF in the year 1987. He was granted two months leave and after some time, the petitioner was informed her husband was absent from duty. The petitioner corresponded with the commandant of the Battalion seeking information about her husband.
She held that the Unit did not conduct any proper investigation.
On 2023, she received a phone call informing her about her husband’s flimsy condition, after which he died.
The petitioner upon the death of her husband is said to have sought the respondents for the settlement of the family pension in her favour subsequently the petitioner was informed that her husband was removed from service in accordance to the order dated 12.10.2000 and she has no right to any pension whether it be a family pension. The petitioner has averred that due to non-compliance to the procedure provided under the Border Security Force Act, 1968 and the Rules, the respondents has terminated the service of her husband. She also alleges that the respondents have not conducted any enquiry under Section 62 of Act, similarly to Rule 21 and 22 of the BSF Rules 1969 also has not been complied by the respondents. What has been argued is that the petitioner or her husband was never given an opportunity to present his side of the story by the respondents before deciding to sack him.
ARGUMENTS ADVANCED BY THE RESPONDENT
The respondents submitted that the petitioner initially did not report back to the Unit past the expiry of his term of leave.
An enquiry in terms of Section 62 of the Act was done after which he reported back to duty. Subsequently the petitioner’s husband was charged under section 19(b) of the Act.
Later, he again abstained from reporting to his duty without any permission to the competent authority.
From the respondents’ account, the petitioner’s husband left the Unit on his own and without permission and hence committed the 2nd offence referred to in Section 19(a) of the Act. The husband of the petitioner was again issued a notice but no response was received from him. Similarly, another Court of Inquiry under Section 62 of the Act was called and it was completed in 1998. Post that, an apprehension roll was made through District Magistrate, Churu, Rajasthan but still petitioner’s husband was not apprehended/ arrested nor was he handed over to the BSF Unit. A show cause notice was issued to petitioner’s husband vide communication. Again, an apprehension roll was issued when there was no response from the petitioner’s husband. After that, the petitioner was required to file an FIR with the local police and a representative was dispatched to the native village of the petitioner’s husband to locate him. The show cause notice was filed. Served upon the petitioner’s husband in 2000, no reply was given, so the respondents issued the impugned order of dismissal against the petitioner’s husband.
JUDGEMENT ANALYSIS
On going through the record prepared by the learned DSGI for the respondents, the court held that after the absence of the husband of the petitioner in discharging duties, the respondents initiated a Court of Inquiry and conducted the same as per Section 62 of the Act. The said provision provides for the holding of an inquiry in the case of absence without leave where a person fails to report for duty without proper authorization for a period of 30 days.
The record also discloses that proceedings of the court of inquiry have been made in ex-parte as the notice served on Constable Gopal Ram at his residential address did not receive any response from him. As per the Court of Inquiry, Constable Gopal Ram was mentally absent and physically absent from the Unit without proper NOC and a suggestion was made that he may be dealt as a ‘deserter’ from 5. 09. 1998. Hence, the respondents had complied with the procedure laid down under Section 62 of the Act in the matter of Constable Gopal Ram.
After that, Constable still remained absent and proceedings under section 11 of the Act were rightfully initiated.
It can be ascertained from the provisions laid down in Section 11 of the Act that the dismissal/removal from the service of any person, other than an officer or a subordinate officer who is subject to the authority of the officer making the order, can be done by any officer of or above the rank of a Deputy Inspector General or such other officer as may be prescribed under the provisions of the Act. However, all the said powers are restricted under the provisions of the Act and the Rules. Dismissing or removing from service any person under his command other than an officer or a subordinate officer requires an officer who has been prescribed under sub-section (2) of Section 11 of the BSF Act to do so.
Therefore, an implementation of a Commandant of a Unit is qualified to give an order of dismissal of a constable serving in his Unit. However, in the present scenario it can be seen that the order under attack was passed by a competent authority. The next startling question that comes to mind is if the procedure prescribed under the Act and the Rules has been followed by respondent in the instant case. As is evident from Rule 22 (1) and (2), it is an established procedure that before dismissing or removing an officer, the competent authority has to give an opportunity to the affected person to provide an explanation against the reasons for his removal a mechanism which is also referred as the show cause notice and the notice has to be in the manner as laid down in sub-rule (2) of Rule 22 which had been given to the petitioner’s husband.
While there is no doubt as to the missing whereabouts of the petitioner’s husband, the respondents were not obliged to conduct a search for him throughout the world. The line of their obligation lay till the issuance of the show cause notice.
It is important to understand that power of the Commandant under Section 11(2) of the Act read with Rule 177 of the Rules to dismiss a person other than an officer or subordinate officer is an independent power and it can be exercised without awaiting the conviction of the said concerned person by the Security Force Court. The sole condition is that the stipulations highlighted in the Rule 22 of the Rules have to be complied with.
The Court referred to the Supreme Court judgement in "Gouranga Chakraborty vs. State of Tripura" which established that the Commandant's dismissal power under Section 11(2) is independent of a Security Force Court trial.
The writ petition was said to lack merits and stood dismissed.
