Md. Danish vs Union of India and Others

A.M. Sapre, C.J.—Heard Mr. Kh. Tarunkumar, learned counsel for the petitioner and Mr. Amarjit Naorem, learned CGSC appearing on behalf of the respondents. This is a writ petition filed by the petitioner under Article 226/227 of the Constitution of India. It seeks to challenge the dismissal order of the petitioner D/- 25.7.1994 (Annexure-A-3).

The petitioner claimed that he was appointed in BSF (12th Battalion) in the year 1989 as constable. He was then given what he called the number - 89006788. His services were however terminated by impugned order (25.7.94) by the Respondent No. 3 Commandant. He then kept quiet for long ten years after his exit from the services and with his conduct, accepted his dismissal. He however woke up out of slumber in the year 2003 and filed the representation to the departmental heads against his ouster from the services. The departmental authorities did not find any merit in his representation and accordingly rejected it. It is then petitioner felt aggrieved and filed this petition challenging his dismissal/termination order D/- 25.7.1994. It was done in 2005.

The challenge to the dismissal order was essentially on one ground. It was contended that the impugned dismissal order was passed without following the procedure prescribed under The Border Security Force Act 1968 (for short called the Act) for dismissing any employee of the BSF and hence, it was liable to be set aside. It was contended that Section 19 provides a procedure as to how and in what manner the employee of BSF can be dismissed and specially on the ground of his long absence from service. Since in this case, the impugned order came to be passed due to absenteeism of the petitioner from the services and hence it was necessary for the Respondent No. 3 to have ensured full compliance of the procedure prescribed in Section 19 of the Act. This in substance of was the argument pressed in service by the petitioner while challenging his dismissal order.

In reply the respondent defended the impugned dismissal on two grounds. In the first place, it was stated that the petitioner approached the court almost after a period of 11 years from the date of his dismissal order. It was pointed out that the cause of action to file the writ petition was accrued to him on 25.7.1994 whereas he filed the writ petition in 2005, hence such belated filing of the writ petition deserves to be dismissed on the ground of delay and laches. In the second place, it was contended that the provisions of the Act are not applicable to the petitioner''s case for the reason that he was not an employee as specified under the Act and hence it was not necessary for the respondent to ensure compliance of any of the provisions of the Act before passing of the impugned order.

Having heard the learned the counsel for the parties and on perusal of the record of the case, we do not find any force in the contentions raised by the petitioner but find force in the contentions raised by the respondent and hence petition is liable to be dismissed.

In order to decide the issue involved, it is necessary to mention Sections 2(v), 2(w), 2(x), Section 3 and Section 6 of the Act:

2.(v) "Subordinate Officer" means a person appointed or in pay as a Subedar-Major, a Subedar or a Sub-Inspector of the Force;

2(w) "Superior Officer", when used in relation to a person subject to this Act, means--

(i) any member of the Force to whose command such person is for the time being subject in accordance with the rules;

(ii) any officer of higher rank or class or of a higher grade in the same class, and includes when such person is not an officer, a subordinate officer or an under-officer of higher rank, class or grade;

2(x) "under officer" means a Head Constable, Naik and Lance Naik of the Force;

Persons subject to this Act-

(1) The following persons shall be subject to this Act, wherever they may be, namely:--

(a) officers and subordinate officers; and

(b) under-officers and other persons enrolled under this Act.

(2) Every person subject to this Act shall remain so subject until retired, discharged, released, removed or dismissed from the Force in accordance with the provisions of this Act and the rules.

Enrolment. -

(1) The persons to be enrolled to the Force, the mode of enrolment, and the procedure for enrolment shall be such as may be prescribed by the Central Government.

(2) Notwithstanding anything contained in this Act and the rules, every person who has, for a continuous period of three months, been in receipt of pay as a person enrolled under this Act, and borne on the rolls of the Force shall be deemed to have been duly enrolled.

Mere perusal of Section 3 would go to show that the provisions of the Act are not applicable to every person working in BSF but are applicable only to those specified in Sections 3 and 6 read with Sections 2(v)(w) or (x) and also those who satisfies the requirement of Section 6 ibid. In other words, the benefit of Act is confined to only those employees who are specified in Section 3 and hence it is necessary for every person to first prove with adequate evidence that he holds/occupy the designated post in BSF services which are specified in Section 3 ibid.

It is not in dispute that petitioner did not file his appointment order in the petition. In this view of the matter, it is not clear as to on what date he was appointed and on what terms and conditions he was appointed in BSE It is also not in dispute that petitioner did not hold the post of "subordinate officer" as defined in Section 2(v) nor he held the post of "superior officer" as defined in Section 2(w) ibid. It was also not alleged in the petition and nor any attempt was made to prove that petitioner''s case fell within the fore corners of Section 6 ibid. In other words, even if the case of the petitioner had satisfied the requirement of Section 6(2) then also he could have been able to take benefit of provisions of the Act. He however failed to prove either.

In our opinion, every person working in the BSF by and under any name is not entitled for the protection of the Act unless he is able to prove that he holds the post which is specified u/s 3 of the Act. Such does not appear to be a case of the petitioner.

In the light of these admitted facts emerging from the record of the case, it is not possible for this court to hold in favour of the petitioner that he was entitled to take the benefit of the provisions of the Act or that impugned action was required to be taken by the respondent under the Act. In other words, we have no hesitation in recording a finding on the facts as they stand that petitioner was not entitled to take the benefit of the Act.

Learned counsel for the petitioner, however, contended that Petitioner has pleaded sufficient facts in his petition to prove as to on what post he was appointed in services of BSF and hence, it should be held that he was entitled to claim the benefit of the Act. We do not agree.

In the first place, the petition does not contain facts which are necessary to show the applicability of the Act. In other words, facts pleaded in the petition do not make out even prima facie that petitioner ever held any of the post specified in Section 3 of the Act so as to enable him to claim the benefit of the Act. Secondly, the respondent in paras 2 and 3 of the return denied the case of the Petitioner in so far as his nature of employment and status was concerned and lastly, in the absence of appointment order not being filed by the petitioner, it is not possible to hold in petitioner''s favour that he was one of those officers to whom the Act in question could be made applicable for deciding the legality of impugned order dated 25.7.94. It seems that, petitioner was under misconception that Act in question applies to him because he was in BSF. It was not justified on his part to assume it at least on the facts pleaded.

This takes us to the next question regarding delay and lashes. It is not in dispute that cause of action to file the writ petition arose in the year 1994 whereas the petitioner raised an objection against his dismissal in the year 2003 when he filed a departmental representation. In our opinion, the delay and lashes on the part of the writ petitioner are apparent. Not raising an objection for long ten years and then submitting a representation after 10 years without explaining any cause for delay in submission and again after waiting for two years to file the writ petition in the year 2005 would render the petition bad for being entertained on the merits and deserves dismissal on the ground of delay and lashes. Though no limitation as such is prescribed for filing a writ petition under Article 226/227 of the Constitution of India, but judicial precedents have consistently laid down that the aggrieved must approach to the High Court within a reasonable time to file the writ petition against the impugned action from the date of accrual of cause of action in favour of an aggrieved. What is reasonable time always varies from case to case. So far as this case is concerned, in our opinion the reasonable time can be taken to be as three years, if not more from the date of dismissal order. Silence of long 10 years on the part of the petitioner cannot be overlooked and nor it is capable of being condoned for want of any explanation given on the part of petitioner. Yet we examined the merits of the petitioner''s case because we noticed that his representation was rejected by the Department in the year 2005. As observed supra, even on merits, we did not find any merit in the petition in the light of our findings recorded above.

In the light of foregoing discussion, the case law cited by the petitioner''s counsel does not help the petitioner. It need not be therefore discussed in detail. In view of what is held above, the petition is found to be devoid of any merit. It fails and is accordingly dismissed. No costs.