PAWANJIT SINGH Vs. DIRECTOR GENERAL BSF

JUDGEMENT

(1.) THE petitioner was formally enrolled as a temporary Constable in the Border Security Forces (hereinafter referred to as "the B.S.F.") w.e.f. 1.1.1987. According to the petitioner, he excelled in all the fields of training and did well in all the examinations. However, on 9.1.1988, the petitioner was called by his Officer and directed to bring a certificate from Army Authorities where he had been working prior to joining the BSF. The respondents wanted to ascertain the ground on which the petitioner was discharged from the Army. The petitioner produced the necessary discharge certificate issued by the 2 Training Battalion, Bengal Engineer Group and Centre, Roorkee. It is stated that the petitioner has been discharged from service w.e.f. 31.12.1985 on compassionate ground at his own request under Item IV of the table to Rule 13(3)(iii) of the Army Rule, 1954, after having served 09 months and 03 days. His character was not assessed as he was having less than one year service. On 2.2.1988, the respondents dismissed the petitioner from service on the ground that he suppressed the fact that during the enrolment in BSF as Constable (GD), he was an ex -serviceman. The petitioner was dismissed from service, without giving any show cause notice. The petitioner has challenged the aforesaid order on the ground that decision was taken in violation of the provisions of Border Security Force Rules, 1969. Rule 20 provides for the procedure to be followed in cases of termination of services for misconduct. Rule 21 provides for the procedure to be followed by the Enquiry Officer. Rule 22 provides for the penalty. It is pleaded that dismissal of the petitioner from service is without following the procedure as laid down in the Rules and is illegal and void in the eyes of law. The petitioner also claims violation of Article 311(2) of the Constitution of India as no charges were framed against the petitioner, nor any enquiry was held. He was not given reasonable opportunity of being heard. It is further pleaded that the discharge certificate issued by the Army Authority clearly shows that he had been discharged at his own request, therefore, the discharge would not be a bar for recruitment in the BSF. In fact, the petitioner had nothing to suppress being an Ex -serviceman would not have been of any disadvantage to the petitioner at the time of recruitment. Therefore, the petitioner has not taken any undue advantage by not disclosing that he had been earlier discharged from the Army on compassionate ground.

(2.) THE respondents have filed the written statement. It is stated that the writ petition is liable to be dismissed on the short ground that it involves disputed questions of fact. The petitioner has concealed the material fact which he was bound to disclose. The petitioner wilfully concealed the fact of his previous service and discharge from the Indian Army, at the time of his enrolment in the B.S.F. He wilfully absented himself from duty in order to avoid dismissal proceedings against him. He was given full opportunity to defend his case and intentionally neither came forward to defend his case nor joined the duty. It is further stated that the petitioner has tried to mislead this Court by quoting irrelevant provisions of B.S.F. Act, 1968. In fact, the petitioner wilfully contravened the provisions of Sections 19 and 23 of the B.S.F. Act, 1968. It is further stated that the respondents have rightly terminated the services of the petitioner under Rule 177 of the BSF Rules, 1969 read with Section 11 (2) of the B.S.F. Act, 1968. The petitioner served in the B.S.F. only for a short period of one year. He deserted B.S.F. wilfully w.e.f. 9.1.1988. Thereafter, he did not join duty. Letters dated 10.1.1988, 18.1.1988 and 21.1.1988 asking him to join the duty were totally ignored by the petitioner. It is denied by the respondents that there is any infringement of any statutory provisions as pleaded by the petitioner. It is stated that the petitioner has concealed the material facts from the Court, and therefore, does not deserve any relief. The respondents came to know only in the month of May, 1987 that petitioner had earlier served in the Army. A reference was made to Record Office, Bengal Engineering Group, Roorkee, asking for the necessary information, on 9.6.1987. By letter dated 29.10.1987, the Army authorities confirmed that the petitioner was enrolled in the Army on 27.3.1985 and discharged from service on 1.1.1986.

(3.) MS . Chatrath has vehemently argued that the order (Annexure P - 2) is founded on the misconduct of the petitioner, and the same could not have been passed without complying with the rules of natural justice. She has submitted that the respondents were duty bound to issue a charge -sheet to the petitioner and to give him an opportunity to defend the charges. Since no such opportunity had been given, the impugned order is liable to be quashed on this short ground. In support of this submission, learned counsel has relied on a number of judgments.