SANDEEP SINGH Vs. UNION OF INDIA & ORS

JUDGEMENT

(1.) Petitioner enrolled in Border Security Force (for short BSF) as Constable in April, 1986, and promoted as Head Constable vide order No. Estt/SS/DISM/04/186-380 dated 03.01.2003, was dismissed from service on 03.01.2004 on the charge of his unauthorised absence from duty for 39 days with effect from 02.10.2003 to 09.11.2003.

(2.) The dismissal order dated 03.01.2004 is questioned in the writ petition on hand, on the grounds that the petitioner because of untimely death of his elder brother on 20th April, 2003 was urgently required at his home in connection with finalization of family matters like obtaining succession certificates in respect of debts and liabilities of the deceased and finalization of Bank/LIC Accounts etc.; that though the respondents did not formally accord sanction to 30 days leave in his favour for which he duly applied, yet the respondents orally permitted the peti tioner to proceed to his home and get the family matters completed. It is pleaded that the petitioner, after he was granted verbal permission by the respondents, left for his home on 2nd October, 2003, and joined back his Unit on 9th November, 2003. The petitioner complains that the Deputy Inspector General, BSF - respondent no. 4 in the petition, without holding any enquiry as contemplated by BSF Act and the Rules made thereunder and without affording the petitioner an opportunity of being heard, dismissed the petitioner from service. The impugned dismissal order is assailed on the ground that it has been made without following the procedure laid down under the BSF Act and Rules.

(3.) The respondents oppose the writ petition on the grounds that the impugned dismissal order does not suffer from any procedural irregularity as would warrant its judicial review in terms of Article 226 of the Constitution of India. The petition is also opposed on the ground that the petitioner has not availed the efficacious remedy available to him under Section 117 of the BSF Act of 1968. It is pleaded that after the petitioner absented from duly on 2nd October, 2003, a letter bearing no. Estt/CI OPS-I/526/03/8767-68 dated 9th October, 2003, was sent to his home address asking him to immediately report to duty and that in the event, he did not report, disciplinary action would be initiated against him. The aforesaid communi cation is reported to have been followed by Communication No.HQL/No. Estt/526/03/9787 dated 10th November,2003, after the petitioner joined his duty on 9th November, 2003, whereby an explanation was sought from the petitioner as regards his unauthorised absence. It is admitted that the petitioner in reply to the aforesaid show cause notice, stated that he was compelled to absent from duty as he had to meet his relatives after his brother's death and he also had to get the matters related to his brother's death settled in the Court; that the explanation tendered was not found satisfactory by the respondents, and the petitioner was attached with 42 Bn BSF vide No. Estt/SHQ CI OPS-I/03/9798-800 dated 10th November, 2003.The Commandant 42 Bn BSF is said to have heard the petitioner under Rule 45 of BSF Rules 1969 on 15th November, 2003 on the charge of "Absent ing Himself Without Leave" under Section 19(a) of BSF Act of 1968; that after hearing the charge, the Record of Evidence (ROE) was ordered vide No. Estt/42 Bn/BSF/ROE-SS/2003/5903-07and Shri Jai Ram Singh, Deputy Commandant 42 Bn BSF recorded the evidence/prepared the Record of Evidence (ROE); that the Commandant after going through the Record of Evidence (ROE) under rule 51 of the BSF Rules, 1969, decided for trial of the petitioner by the Summary Security Force Court (SSFC) on 3rd January, 2004, and that after due appreciation of the evidence adduced against the petitioner during trial, the Court found him guilty of the charge and sentenced him "To Be Dismissed From Service" and promulgated the sentence on 03.01.2004 itself. The respondents also question jurisdiction of the Court to deal with and proceed with the matter and further insist that the petitioner a habitual offender and was awarded "Severe Reprimand" more than once till he was finally shown the door vide dismissal order impugned in the petition. It is stated that the petitioner earlier in April, 2003 over stayed the leave on the same ground and the respondents took a lenient view, taking note of death of petitioner's brother and the period of absence was regularized by granting leave of whatever kind due to the petitioner. It is next pleaded that the Commandant 42 Bn BSF was in terms of BSF Act and Rules competent to try the petitioner and award sentence. The respondents refute the petitioner's claim that Court of Inquiry (COI) was mandatory before the petitioner was ordered to be tried by Summary Security Force Court (SSFC), inasmuch as, the disciplinary action was initiated after the petitioner reported back to the duty. It is further pleaded that before the petitioner was directed to be tried by Summary Security Force Court (SSFC), copies of Record of Evidence (ROE) and charge-sheet framed were handed over to petitioner vide No.THQ/42 Bn/SSFC-SS/04/01 dated 01.01.2004 and the petitioner informed well in time about the day, date and venue of Summary Security Force Court (SSFC) trial. Insisting that petitioner was given an opportunity of being heard at each and every stage, respondents deny that BSF Rule 49 was attracted in the present case. The respondents insist that the matter did not suffer from procedural irregularity and that BSF Rule 21-22 like Rule 49 had no application in this case were not to be adhered to. The respondents, to show that the petitioner was given a fair deal, point out that an Officer nominated by the petitioner was appointed vide letter No.THQ/42 Bn/SSFC-SS/04/01 dated 01.01.2004 as friend of the accused before SSFC, that plea of not guilty was duly recorded and that petitioner did not have service of lawyer available because as he did not opt for such service and not because the respondents were disinclined to provide the petitioner such facility to defend himself before the SSFC. The respondents also deny that in terms of Rules, a notice was required to be issued to the petitioner before awarding punishment and the petitioner to be afforded an opportunity to show cause against the proposed punishment. It is pointed out that as the petitioner was convicted by Summary Security Force Court (SSFC), and dismissed from service awarded as punishment by the SSFC, notice was not required to be served on a delinquent official to show cause against the proposed punishment, was not required to be served upon petitioner.