Rakesh Kumar vs Union of India and others

Jaswant Singh, J.—Plaintiff/appellant is in second appeal against the judgments and decrees passed by the courts below, whereby his suit for declaration to the effect that his dismissal from service vide order dated 25.3.1997 is illegal, null and void ab initio and not binding upon him; with further prayer for grant of full back wages and promotion etc. from the date of his dismissal from service, was dismissed by the trial court and the appeal filed by him was also dismissed by the learned appellate court. Facts necessary for the decision of the present appeal are that plaintiff filed the said suit with the allegations that he was enrolled in Border Security Force (BSF) on 8.10.1994 as Constable No. 94154856 and after undergoing basic training at RTC Bangalore he was posted at 115 Bn. BSF Pantha Chowk on 22.10.1995. Thereafter he was sanctioned 15 days'' leave w.e.f. 3.11.1996 to 22.11.1996 for the purpose of treatment of his mother and after the expiry of leave he communicated his Commandant-defendant No.2 for extension of his leave. It is further alleged that after the mother of the plaintiff recovered from her illness he went to Jammu (BSF Transit Camp) on 12.1.1997 for joining his duty but was refused to do so by the Camp Commandant. Later on, on his request he was made to sit in Convoy for Srinagar, but due to refusal by Convoy In-charge to carry him, the plaintiff came back to his house where he received dismissal order dated 25.3.1997 whereafter he contacted the defendants and wrote various applications but his dismissal order was not withdrawn.

Upon notice, defendants filed written statement taking various preliminary objections. On merits it was stated that after his training the plaintiff joined the Unit on 24.10.1995 on permanent posting from STC BSF Bangalore. It was further stated that plaintiff was sanctioned 15 days casual leave w.e.f. 1.11.1996 to 22.11.1996 and he was to report at Transit Camp, Jammu on 23.11.1996 (f.n.) but he did not resume duty on the date and overstayed leave w.e.f. 23.11.1996 without any sufficient cause whereupon vide order dated 26.12.1996 a Court inquiry was ordered and as per finding and opinion of the court the plaintiff was found blameworthy for overstaying the leave u/s 19(b) of the Border Security Force Act, 1968 (for short "the Act"). Thereafter he was issued a show cause notice vide letter dated 21.1.1997 which he did not avail and thereafter the plaintiff was dismissed from service w.e.f. 25.3.1997 (f.n.) vide order dated 25.3.1997. It was further alleged that no communication regarding extension of leave was ever received from the plaintiff and as such the story made by him was false and concocted. It was further stated that the rejection of the application moved by the plaintiff for his reinstatement was also conveyed to him. All other averments made in the plaint were denied.

Plaintiff filed replication controverting the averments made in the written statement and reiterated the pleadings made in the plaint. On the pleadings of the parties issues were framed. Both sides led evidence in support of their respective pleas. The learned trial court after hearing both sides and perusing the material available on record, dismissed the suit of the plaintiff vide impugned judgment and decree dated 31.5.2004. Aggrieved against the same, plaintiff/appellant filed an appeal which was also dismissed by the appellate court vide impugned judgment and decree dated 1.10.2009. Hence the present appeal.

Learned counsel for the appellant has argued that while ordering a Court of inquiry conducted by only one officer, the defendant authorities have committed a grave illegality in view of the provisions contained in Sections 68 and 69 of the Act inasmuch as the provisions envisage that the Court of inquiry shall be conducted by not less than 5/3 officers (in case of petty officers). He further contends that no show cause notice before ordering his dismissal was served upon the plaintiff/appellant.

After hearing the counsel for the plaintiff/appellant and giving my anxious thoughts to his contentions I am not persuaded to accept the submissions made on behalf of the appellant.

First of all it is not disputed that the plaintiff/appellant being a member of the disciplined force with two years'' service only had overstayed his leave for a period of almost two months. During the conduct of the trial of the suit he was not able to substantiate the plea of illness of his mother, being the reason for his overstay, by producing any medical record so as to vitiate the disciplinary proceedings/dismissal order. It is thus apparent that there was no sufficient cause for him to overstay his leave. It is further apparent that provisions of Rule 22 of The Border Security Force Rules, 1969 (for short the Rules) which permit the authorities to take departmental action in the alternative on a misconduct, was in addition to any punishment by way of imprisonment to be imposed after conviction in a criminal trial to be conducted as per Sections 68 and 69 of the Act It is further apparent that the plaintiff has failed to show that the procedure provided under Rule 22 of the Rules was not followed while dismissing him from service, whereas no action for imprisonment was initiated so as to make the provisions of Sections 68 and 69 of the Act applicable. In view of the above discussion, no question of law much less substantial question of law arises for consideration in this appeal and the same is hereby dismissed.