SHAM LAL vs UNION OF INDIAAND OTHERS

Petitioner seeks quashment of Order No.2/198/2002 /BSF/ CLO (D&L)/3232-37 dated 23.03.2006 passed by respondent No.2, rejecting his

Statutory Appeal as also Order No. DIG/LAW/1043/95/123/962-1012 dated 03.02.1995 passed by respondent No.3. He seeks direction to

respondents to reinstate him in service with all consequential benefits including full back wages and allowances with retrospective effect and to treat

him in continuous and uninterrupted service without any break.

Petitioner pleads that he was selected as Sub Inspector in Border Security Forces (BSF). While posted at 79 Battalion BSF, located at Tura,

Meghalaya, he claims to have applied for 14 days‟ casual leave with effect from 9th December, 1992 on the ground of illness of his wife, who was

staying along with petitioner‟s old parents at his native place in R.S. Pura, Jammu. The leave, it is averred, was duly sanctioned. After expiry of

sanctioned casual leave, petitioner had to report for duties on 30th December, 1992. Since petitioner‟s wife was not well and had become weak and

for want of proper care and treatment, being in advanced stage of pregnancy and there being no other member in the family except petitioner to take

care of his wife, as such, he was constrained to extend the leave by another 15 days through telegram. However, when petitioner did not receive any

intimation from respondent no. 4, Commandant, to whom the extension of leave was applied for, he went to join his duties before expiry of the

requested-extended period of leave. He, it is next averred, took his ailing wife along with him as there was no other member in the family except his

old parents to look-after and provide her timely medical treatment. It is claimed that after joining duties, petitioner met the Adjutant because

respondent no.4 was out of station and requested him to assign him duties at Bn. Headquarter because of the precarious condition of his wife, who

was at advanced stage of pregnancy.Respondent no.4, Commandant, after coming at Headquarter, and on seeing petitioner at Headquarter, asked him

to explain the reasons for being late and not joining duties upon expiry of sanctioned leave of 14 days. To this, petitioner explicated his difficulty and

circumstances, and narrated the entire episode of illness of his wife, who was in advanced stage of pregnancy and also submitted that since there was

no other member in the family except old and sickparents, he was compelled to extend the leave by way of telegram. The petitioner also requested to

assign him the duties at the Bn. Headquarter till his wife delivers the child and recovers/regains her health. The Commandant, instead of allowing

petitioner to discharge his duties at the Bn. Headquarter, ordered petitioner to perform duties at “B-Coyâ€, which was at a minimum distance of

about 200 Kms. The petitioner again requested the Commandant to consider his difficulty on humanitarian grounds as leaving his wife alone at the

Headquarter would endanger the life of his wife and unborn child as well. The petitioner also requested the Commandant that he was willing to obey

the order and in case Bn. Headquarter duties were not to be assigned to him, he might be permitted to drop his wife back to his home town or at least

to accompany her upto Guwahati, from where direct Train for Jammu was available, but this proposal was also not accepted. It is next claimed that on

next day, petitioner again made an application, elucidating his difficulties and also requested him for personal interview, but the application went

unheeded and petitioner was not granted an opportunity to explain his difficulties to the Commandant.

It is further contended that petitioner could not proceed for the Border on account of precarious condition of his wife, who was in advanced stage

of pregnancy and was attending his duties at the Headquarter regularly with the fervent hope that the Commandant would give him an opportunity to

explain his problem. Instead of granting an opportunity to the explain his difficulties, petitioner was served with two charge-sheets u/s 19(b) of Border

Force Act of 1968, to the effect that he had over-stayed the period of leave granted to him without sufficient cause. The other charge sheet issued u/s

21 (1) of the BSF Act was for alleged disobedience and wilful defiance of authority and lawful command given by his superior. Petitioner avers to

have supplied copy of abstract of evidence in regard to charge sheets for the alleged offence, however, not supplied record of evidence. The petitioner

also received a letter from the Commandant 79 Bn, BSF to the effect that he occupied the Family Quarter, Assam-Type-III, after breaking open the

lock and has brought his family to the location without prior permission, to which petitioner submitted his explanation, clarifying the true and correct

facts and denying the allegation of breaking open the lock of the quarter. The petitioner received another letter from Commandant 79 Bn.BSF,

stopping his pay and allowances and directing him to proceed to “B†Coy. It is further contended that under the circumstances when petitioner

was neither permitted to go and drop his ailing wife to his native place in Jammu or at least upto Guwhati nor was permitted to perform duties at

Headquarter so as to enable him to take care of his sick wife and that his pay and allowances were stopped and the money brought from home was

almost spent, he was compelled to tender his resignation on 28.01.1993. When no action was taken by the authorities even after petitioner submitted

his resignation, he made an application for leave but no action was taken on his leave application. He was compelled to leave for his home town along

with his wife. The petitioner on coming back to Jammu sent a representation to Director General, BSF, Delhi, for his transfer to some other location as

he had been unduly harassed by the Commandant and the resignation tendered by him was out of desperation, but he did not receive any reply nor he

was permitted to meet the Director General.

The next contention of petitioner is that since he was neither on duty nor discharged from BSF, which rendered him ineligible for any other job

elsewhere, he made an application to Commandant requesting him to issue discharge certificate, arrears of pay and allowances, medical

reimbursement and TA. He also sent telegram to Deputy Inspector General, BSF, Shillong, and Commandant 79 Bn. BSF, Tura, requesting them to

accept his resignation. After repeated, reminders, petitioner received a letter from Assistant Director, Shillong, directing him to resume duty at 79 Bn.

BSF. In compliance to letter dated 20.05.1994, he requested Assistant Director, Shillong Sector, that he explained his family position and the

disciplinary proceeding may be dropped. The petitioner did not receive any reply to his letter, he reached to transit Camp BSF, Guwahati and

presented himself at 79 Bn. Headquarter Tura, on 03.10.1994, and submitted his joining report. However, he was not permitted to join the duties and

under utter humiliation and great stress had to again come back to Delhi. Thereafter, he tried to meet Director General, BSF at New Delhi, on more

than four occasions but was not permitted to see Director General. Petitioner was served with show-cause notice dated 28th November, 1994, issued

by DIG Headquarter, Shillong Sector, intimating that his trial by Security Force Court is impracticable and expressing his opinion that petitioner‟s

retention in service was undesirable and proposed to dismiss petitioner from service. Petitioner filed a Reply dated 14.12.1994. Petitioner was served

with an order dated 3rd February, 1995, issued by DIG, BSF, Shillong, dismissing him from service on the ground that petitioner was absent without

leave, without any reasonable cause and his further retention in service was not desirable. Against the order of dismissal bearing

No.DIG/LAW/1043/95/123/962-1012, petitioner preferred a statutory appeal to Director General, BSF, New Delhi, respondent No.2, under Rule28(a)

of the Border Security Force Rules, 1969, but respondent No.2 rejected the statutory appeal vide his order dated 28th July 1995.

Against the order dated 28th July, 1995 passed by respondent no.2, by which statutory appeal was rejected, petitioner preferred writ petition,

bearing No.CW No.3038/96 before the High Court of Delhi, which was dismissed by the learned Single Judge vide Judgment dated 6th December,

2001. Thereafter he preferred an LPA, which was decided by the Division Bench of the High Court of Delhi vide Judgment dated 3rd February, 2006,

holding:

“It is not in dispute that the said order does not specifically deal with the pleas raised by the appellant in his statutory petition dated 14th March,

1995 and accordingly is covered by the position of law laid down by this court in the judgment in WP(C) No. 9247/2005 titled “Const. Hans Raj Vs.

Union of Indiaâ€. Accordingly the order dated 28th July, 1995 is set aside. The respondents are directed to pass a reasoned order in accordance with

the position of law laiddown by the above judgment in Const. Hans Raj’s Case not later than 15th April, 2006. In case the petitioner is aggrieved

by the disposal of his petition pursuant to the directions given in this order, it will be open to him to assail such order in accordance with law. While

disposing of the petitioner’s statutory petition, the respondents will also consider the position of law laid down in Union of India Vs. Ram Phal

reported as AIR 1996 SC 1500 as well as the judgment of the Division Bench of this Court in Sees Ram Vs. Union of India reported as 63 (1996)

DLT 890(DB).

Pursuant to Judgment dated 3rd February, 2006 passed by the Division Bench of Delhi High Court, respondent No.2 has passed impugned Order

bearing no.2/198/2002/BSF/CLO(D&L)/3232-37 dated 23rd March, 2006, rejecting statutory appeal filed under Rule 28(s) of BSF Rules, 1969. Hence

this petition on the ground that petitioner, being a Sub-Inspector in BSF, falls within the definition of Subordinate officer as defined under Section 2(1)

Clause V of the BSF Act, 1968, and since petitioner is a subordinate officer, therefore, respondent no.3, i.e. Deputy Inspector General, was not

competent to dismiss petitioner from service as under Section 11 of the BSF Act, 1968, it is only Director General competent to dismiss or remove a

subordinate officer; that since petitioner has been dismissed for misconduct of absence from duty without leave, therefore, under Section 19 of the Act

and Rule 12 of the BSF Rules, 1969, it was incumbent upon respondents to convene Security Force Court; that the respondents invoked Section 62 of

the BSF Act, 1968, to constitute a court of inquiry into the absence of petitioner and to declare him as deserter, but petitioner was dismissed from

service for misconduct of absence from duty without leave, thus, the powers exercised by respondents under Section 11(2) of BSF Act, 1968, could

not have been exercised independently, but was subject to provisions of Section 48 of the Act and Rule 22 of the BSF Rules; and that petitioner was

appointed in BSF on 14/12/1987 as Sub Inspector (Direct Entry) and posted to 79 Bn BSF on 28/08/1987 from 153 Bn. BSF. However, he reported

for duties in the Unit on 03/10/1992 after overstaying for 19 days.

Objections have been filed by the respondents. They insist that petitioner proceeded on 14 days Casual Leave w.e.f 09/12/1992 to 25/12/1992 with

04 days in journey period up to 29/12/19992 on the ground of treatment of his wife. He was supposed to re-join his duty on 30/12/1992 (FN) but failed

to do so and re-joined his duties voluntarily on 11/01/1993 (FN) after overstaying by 12 days. The petitioner on reporting from leave also brought his

family to Bn. Headquarter without prior permission. Not only this, petitioner broke open the door of Govt. Quarter and started staying there with his

family without prior permission of competent authority. Despite the fact that he had overstayed from the leave granted, he even after reaching Bn.

Hqrs joined his duties after two days. He was asked to proceed to his company for border duties of Platoon Commander on 15/01/1993 and

19/01/1993 as his services were urgently required there but he refused to obey the orders. He again left the Unit Lines on 10/02/1993 without

informing any one or seeking prior permission. Thus, he was dismissed from service w.e.f 03/02/1995 vide Sector HQ BSF Shillong order No.

DIG/LAW/1043/95/123/962-1012 dated 03/02/1995 after observing all legal formalities. He filed CWP No.3038/1996, titled Sham Lal Vs. UOI and

Others before the High Court at Delhi, for reinstatement in service with full back wages and allowances from retrospective effect and to treat him

continuously in service without any break. Writ petition was dismissed by the learned Single Judge on 06/12/2001. Being aggrieved, he filed LPA

No.47/2002 before the Division Bench of the Delhi High Court. The learned Division Bench vide judgment dated 03/02/2006 disposed of LPA with a

direction to respondents to pass a reasoned order in accordance with the position of law laid down in Constable Hans Raj’s case and in the event,

if he is aggrieved by the disposal of his petition pursuant to the directions given in the order, it would be open to him to assail such order in accordance

with law. While disposing of his statutory petition, respondents were directed to also consider the position of law laid down in Union of India v. Ram

Phal reported as AIR 1996 SC 1500 as well as the judgment of the Division Bench of Delhi High Court rendered in Sees Ram v. Union of India

reported as 63 (1996) DLT 890(DB). Petitioner, in view of the Division Bench of the Delhi High Court judgement, preferred statutory petition. The

statutory petition was considered by Director General, BSF, New Delhi, but could not be acceded to and rejected being devoid of merit vide order

impugned bearing no. 2/198/2002/BSF/CLO(D&L)/3232-37 dated 23rd March, 2006.

Heard learned counsel for the parties and perused the record.

The issuewhich is to be determined by this Court in this writ petition is only to theextent as to whetherrespondents have passed a speaking order

pursuant to the directions dated 03.02.2006 issued by the Hon‟ble Division Bench of the Delhi High Court in LPA 47/2002.

Petitioner, in the present case, was working in a disciplined force, Border Security Force, as Sub-Inspector. His services, thus, were regulated and

governed by the Border Security Force Act, 1968 and Rules made thereunder. Section 11 of the BSF Act provides:

“11. Dismissal, removal of reduction by the Director-General and by other officers.â€" (1) The Director-General or any InspectorGeneral may

dismiss or remove from the service or reduce to a lower grade or rank or the ranks any person subject to this Act other than an officer.

(2) An officer not below the rank of Deputy Inspector-General or any prescribed officer may dismiss or remove from the service any person under

his command other than an officer or a subordinate officer of such rank or ranks is may be prescribed.

(3) Any such officer as is mentioned in sub-section (2) may reduce to a lower grade or rank or the ranks any person under his command except an

officer or a subordinate officer.

(4) The exercise of any power under this section shall be subject to the provisions of this Act and the rules.â€​

On the date of dismissal of petitioner from service, 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:

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.

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. In the present case, the reports with respect to the misconduct of petitioner were considered by competent

authorities and after deriving satisfaction therefrom the dismissal order and also impugned order rejecting petitioner‟s statutory petition have been

passed. The respondents, while issuing the impugned order, have taken care of all aspects of the matter. The petitioner was afforded opportunity,

which he availed by submitting the statutory petition. The statutory petition was properly considered and rejected by a speaking order. This Court in

exercise of powers under Article 226 of the Constitution of India, cannot look into the subjective satisfaction arrived at by Director General, BSF, in

terms of provisions of the BSF Act and Rules made thereunder, while passing impugned order and sit as an appellate authority over the order passed

in the statutory petition. A careful look at the version of the petitioner also reveals that there are chinks in his version. The veracity of reports with

respect to misconduct of petitioner cannot be looked into and assessed in writ proceedings. Again, initiation and outcome of inquiry on the basis of the

reports with reference to misconduct cannot be assailed in writ petition or evaluated in extra ordinary writ jurisdiction, particularly when the petitioner

has been afforded and given the opportunity of being heard as was required in terms of the BSF Act and Rules. Be that as it may, writ petition is

devoid of any merit.

Based on the aforesaid discussion and reasons, writ petition is dismissed with connected MP(s). Interim direction, if any, shall stand vacated.

Registry to return the record to learned counsel for the respondents against proper receipt.