Full Text
JUDGMENT
SURESH KUMAR .....Petitioner Represented by: Mr.Jasbir Singh Malik, Advocate
Represented by: Ms.Anjana Gosain, Mr.Pradeep Desodya and Mr.Arvind Sharma for UOI
HON'BLE MR.JUSTICE JAYANT NATH PRADEEP NANDRAJOG, J.
1. The factual backdrop leading to the filing of the above captioned petition is that on August 11, 1988 the petitioner was enrolled as a Constable in Border Security Force.
2. The petitioner availed earned leave due to him in the year 1989 and reported back in time. Thereafter, on several occasions the petitioner overstayed leave or proceeded on unauthorized leave. Put in a tabular form, the data would reveal as follows:-
┌───────────────────────────────────────────────────────────────────────────────────────────────┐ │ Sl. Period of overstay/ Duration of overstay/ │ │ No. unauthorized leave unauthorized leave │ ├───────────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. February 23, 1990 to March 01, Seven days │ │ 1990 │ │ WP(C) No.5440/2002 Page 1 of 21 │ │ 2014:DHC:1992-DB │ │ 2. March 12, 1990 to March 19, Eight days │ │ 1990 │ │ 3. September 21, 1990 to Forty seven days │ │ November 06, 1990 │ │ 4. January 08, 1992 to January 15, Eight days │ │ 1992 │ │ 5. June 05, 1992 to June 16, 1992 Twelve days │ │ 6. November 21, 1992 to Three days │ │ November 24, 1992 │ │ 7. December 08, 1992 to Three days │ │ December 10, 1992 │ │ 8. February 16, 1993 to February Five days │ │ 20, 1993 │ │ 9. April 03, 1993 to April 05, 1993 Two days │ │ 10. September 24, 1993 to October Fourteen days │ │ 07, 1993 │ │ 11. November 19, 1993 to Nineteen days │ │ December 07, 1993 │ │ 12. April 09, 1996 to June 12, 1996 Sixty five days │ │ 13. October 17, 1996 to December Fifty two days │ │ 07, 1996 │ │ 14. February 24, 1997 to April 09, Forty four days │ │ 1997 │ │ 15. December 05, 1998 to January Fifty four days │ │ 27, 1999 │ │ 16. July 20, 1999 to July 31, 1999 Twelve days │ │ 17. September 20, 1999 to Two days │ │ September 24, 1999 │ │ 18. April 19, 2000 to June 23, 2000 Sixty six days │ │ 19. July 24, 2000 to September 13, Fifty days │ │ 2000 │ │ 20. October 13, 2000 to October 22, Ten days │ │ 2000 │ │ 21. November 14, 2000 to January Fifty six days │ │ 08, 2000 │ │ 22. January 15, 2001 to February Thirty one days │ │ 14, 2001 │ │ WP(C) No.5440/2002 Page 2 of 21 │ │ 2014:DHC:1992-DB │ └───────────────────────────────────────────────────────────────────────────────────────────────┘
23. As already noted hereinabove, on August 18, 2001 in exercise of his power under Section 11(2) of the BSF Act, 1968 the Commandant dismissed the petitioner from service.
24. On the date of dismissal of petitioner from service i.e. August 18, 2001, the procedure for exercise of power under Section 11(2) of the BSF Act, 1968 was laid down in Rule 22 of BSF Rules, 1969, which reads as under:- “22. Dismissal or removal of persons other than officers on account of misconduct – (1) When it is proposed to terminate the service of a person subject to the Act other than an officer, he shall be given an opportunity by the authority competent to dismiss or remove him, to show cause in the manner specified in sub-rule (2) against such action: Provided that this sub-rule shall not apply- (a) where the service is terminated on the ground of conduct which has led to his conviction by a criminal court or a Security Force Court; or (b) where the competent authority is satisfied that, for reasons to be recorded in writing, it is not expedient or reasonably practicable to give the persons concerned an opportunity of showing cause. (2) Where after considering the reports on the misconduct of the person concerned, the competent authority is satisfied that the trial of such a person is inexpedient or impracticable, but, is of the opinion that his further retention in service is undesirable, it shall so inform him together with all reports adverse to him and he shall be called upon to submit, in writing, his explanation and defence: Provided that the competent authority may withhold from disclosure any such report or portion thereof, if, in his opinion, its disclosure is not in public interest. (3) The competent authority after considering his explanation and defence if any may dismiss or remove him from service with or without pension: Provided that a Deputy Inspector-General shall not dismiss or remove from service, a Subordinate Officer of and above the rank of Subedar. (4) All cases of dismissal or removal under this rule, shall be reported to the Director-General.”
25. Rule 22 of BSF Rules, 1969 noted above or any other provision under the BSF Act or Rules envisage conduct of enquiry for exercise of power under Section 11(2) of BSF Act, 1968. The ratio laid down by Supreme Court in Ram Phal‟s case (supra) that it is incumbent upon a prescribed officer to conduct an enquiry before dismissing/removing a person in exercise of his power under Section 11(2) of the BSF Act is premised upon the fact that Rule 20 of the BSF Rules, 1969 as noticed by Supreme Court envisaged conduct of an enquiry in case where the person issued with show cause notice denies the allegations leveled against him, which is not the case with Rule 22 applicable in the instant case. In view thereof, the first submission advanced by the petitioner that the Commandant ought to have conducted an enquiry before dismissing the petitioner from service in exercise of his power under Section 11(2) of the BSF Act is clearly fallacious and therefore rejected.
26. At this stage we need to highlight that when the decision was pronounced by the Supreme Court in Ram Phal‟s case (supra) Rule 20 as it existed before it was substituted on May 29, 1990 was noted by the Supreme Court. As of today, the substituted Rule reads as under:- “20. Termination of service of officers by the Central Government on account of misconduct- (1) When it is proposed to terminate the service of an officer under section 10 on account of mis-conduct, he shall be given an opportunity to show cause in the manner specified in subrule (2) against such action:- Provided that this sub-rule shall not apply:- (a) Where the service is terminated on the ground of conduct which has led to his conviction by a criminal court or a Security Force Court; or (b) Where the Central Government is satisfied that for reasons, to be recorded in writing, it is not expedient or reasonably practicable to give to the officer an opportunity of showing cause. (2) When after considering the reports on an officer‟s misconduct, the Central Government or the Director General, as the case may be, is satisfied that the trial of the Officer by a Security Force Court is in-expedient or impracticable, but is of the opinion, that the further retention of the said officer in the service is undesirable, the Director General shall so inform the officer together with particulars of allegation and report of investigation (including the statements of witnesses, if any, recorded and copies of documents if any, intended to be used against him) in cases where allegations have been investigated and he shall be called upon to submit, in writing, his explanation and defence: Provided that the Director General may withhold disclosure of such report or portion thereof if, in his opinion, its disclosure is not in the interest of the security of the State. (3) In the event of explanation of the Officer being considered unsatisfactory by the Director-General, or when so directed by the Central Government, the case shall be submitted to the Central Government with the Officer‟s defence and the recommendations of the Director-General as to the termination of the Officer‟s service in the manner specified in sub-rule (4). (4) When submitting a case to the Central Government under the provision of sub-rule (2) or sub-rule(3), the Director- General shall make his recommendation whether the Officer‟s service should be terminated, and if so, whether the officer should be- (a) dismissed from the service; or (b) removed from the service; or
(c) retired from the service; or
(d) called upon to resign.
(5) The Central Government, after considering the reports and the officer‟s defence, if any, or the judgement of the Criminal Court, as the case may be, and the recommendation of the Director-General, may remove or dismiss the officer with or without pension, or retire or get his resignation from service, and on his refusing to do so, the officer may be compulsorily retired or removed from the service with pension or gratuity, if any, admissible to him.”
27. This takes us to the second submission advanced by the petitioner.
28. Whereas the case of department is that after he was discharged from IHBAS by his brother Azad Singh on February 16, 2001, the petitioner neither reported for duty nor sent any intimating regarding his absence, the case set up by the petitioner is that the whole thing is a sham and was stage managed by/at the instance of the Commandant of petitioner, who was infuriated with the petitioner. The petitioner pleads that on February 16, 2001 he i.e. the petitioner was discharged from IHBAS not by his brother Azad Singh but by two BSF Constables at the instance of the Commandant. Between the period from February 16, 2001 to August 18, 2001 when he was dismissed from service the petitioner was either undergoing treatment at various hospitals or worked as a runner to his Commandant. However, the Commandant wrongly showed the petitioner as „absent from duty‟ for the period from February 16, 2001 to August 18,
2001. The petitioner further pleads that show cause notice dated June 02, 2001 was never received by him. To prove his version, the petitioner places strong reliance upon the certificate dated June 04, 2003 stated to have been issued by Karnal Cooperative Bank Ltd, Karnal, Haryana.
29. If the certificate dated June 04, 2003 is genuine, it would go a long way in ascertaining the veracity of the version of petitioner. The moot question is: Whether the certificate dated June 04, 2003 is genuine?
30. We think not.
31. The petitioner was dismissed from service on August 18, 2001. Petitioner filed an appeal challenging his dismissal on November 17, 2001. No certificate regarding the whereabouts of his brother Azad Singh on February 16, 2001 was annexed by the petitioner along with his appeal. The instant writ petition was filed by the petitioner on August 27, 2002. Yet again, no such certificate was annexed by the petitioner along with the present petition. Thereafter, rejoinder was filed by the petitioner on May 29, 2003, again sans any such certificate. There are no pleadings in the petition or the rejoinder concerning the certificate in question. On July 16, 2005 the certificate dated June 04, 2003 was filed by the petitioner along with an additional affidavit.
32. It takes no rocket science to figure that certificate regarding the whereabouts of the brother of petitioner on February 16, 2001 was the best evidence whereby the petitioner could prove his version. Despite thereto, the petitioner did not produce such a certificate along with his appeal or the instant petition. More than three years after the filing of the present petition lighting dawned upon the petitioner and he filed the certificate regarding the whereabouts of his brother on February 16, 2001. The timing of the filing of the certificate dated June 04, 2003 by the petitioner raises strong doubt about the veracity of the genuineness of said certificate. It could be procured at any stage.
33. Further, a careful look at the version of the petitioner reveals that there are chinks in his version.
34. The petitioner has annexed OPD slips issued by various hospitals relating to the period February 16, 2001 to August 18, 2001 along with the present petition to show that he was undergoing treatment during said period.
35. If we were to accept aforesaid OPD slips at their face value, at best, they would prove that the petitioner was availing treatment as an outpatient. The question which would then arise would be: What prevented the petitioner from reporting to his unit when he was availing treatment as an out-patient? Perhaps, to avoid answering said question, the petitioner has taken a stand that he was very much present in his unit between the period from February 16, 2001 to August 18, 2001 and working as a runner to his Commandant during said period. But, we find such a statement/assertion conspicuously missing in the appeal filed by the petitioner. The omission of the petitioner to state in his appeal that he was very much present in his unit between the period from February 16, 2001 to August 18, 2001 and working as a runner to his Commandant during said period raises strong doubt about the veracity of said claim made by the petitioner. Besides, why should the Commandant resort to a strategy of contrivance? The question looms large without a convincing answer. That the Commandant did so because petitioner‟s wife had complained to senior officers is too tenuous a reply. Besides, from the chart we have prepared in paragraph 2 above we have good evidence of the fact that the petitioner was suffering from some ailment which would keep him away from work at regular intervals. The petitioner himself admits that he was suffering from a mental ailment and in support whereof he has filed photocopies of OPD slips. The one at page 36 of the writ record would reveal that the petitioner was referred to psychiatric OPD; it appears to be a case where the doctors were of the opinion that the so called physical illness evidenced by the petitioner was the result of his psychosomatic condition. This falls in line with the departmental version with proof that the petitioner was got admitted at IBHAS from where his brother got him discharged.
36. Pertaining to the show cause notice dated June 02, 2001, we note that it was sent at the permanent residential address of the petitioner. The petitioner denies having received the said show cause notice.
37. A perusal of the record brings out that the show cause notice dated June 02, 2001 was sent under Registered Post. The same was not received back and thus there is a presumption of service. Further, we find that like the show cause notice dated June 02, 2001, the order dated August 18, 2001, dismissing the petitioner from service was sent at the same permanent residential address of the petitioner. The petitioner admits having received the order dated August 18, 2001. Why the selective receipt by the petitioner of documents sent at his permanent residential address? The plea urged by the petitioner that the show cause notice dated June 02, 2001 was never received by the petitioner is thus negated by us.
38. All the aforesaid chinks appearing in his version compels us to hold against the petitioner.
39. We dismiss the instant petition but refrain from imposing costs.
(PRADEEP NANDRAJOG) JUDGE (JAYANT NATH)
JUDGE APRIL 16, 2014 skb