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PETITIONER: GOURANGA CHAKRABORTY

       Vs.

RESPONDENT: STATE OF TRIPURA AND ANR.

DATE OF JUDGMENT31/03/1989

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) PANDIAN, S.R. (J)

CITATION:  1989 AIR 1321            1989 SCR  (2) 271  1989 SCC  (3) 314        JT 1989  Supl.     86  1989 SCALE  (1)793

ACT:     Border  Security  Force Act 1968/Border  Security  Force Rules 1969. Section 4(2), 10, 11, 19, 48 and 50/Rules 6  and 177  Constable-Dismissed  from  service  by  commandant  for overstaying  leave--Validity  of  dismissal   order--Whether Security Force Court--Should award punishment.

HEADNOTE:     The appellant was enrolled as a Constable in the BSF and was serving as such since 1966. He was confirmed in the said post.  In 1971, he was granted leave from October :25,  1971 to  October 30, 1971 on account of the death of his  father. As  the  Shrad ceremony could not be  performed  within  the aforesaid time, and he was suffering from serious illness he made  an application requesting for extension of leave  sup- ported  by a medical certificate. On December 12, 1971,  the appellant  received  a  communication  from  the  Commandant stating that as he was absent without leave from October 31, 1971, that because of such absence without leave for a  long period his further retention in service was undesirable, and that  it  was proposed to dismiss him from service.  He  was asked  to submit his explanation against the  imposition  of this penalty. The appellant sent a telegram on December  21, 1971,  but  without any redress. On January 5, 1972  he  re- ceived an order of the Commandant informing him that he  had been dismissed from service. On January 10, 1972, the appel- lant  again  sent an application requesting that he  may  be permitted to join his service, but he was not allowed to  do so.  The  appellant  preferred an appeal  to  the  Inspector General, BSF on February 1, 1972 but no relief was granted.     The appellant after serving a notice under section 80 of the Code of Civil Procedure filed a civil suit for a  decla- ration that the order of dismissal from service was  illegal and  he was still in service. The respondent  contested  the suit  and  pleaded that the appellant was absent  from  duty from  October 31, 1971 without any leave at a critical  time when India was at war with Pakistan, and that the Commandant by  his  notice dated 15 December 1971 intimated:  that  his retention in service was undesirable because of his  absence for a long period, that he was given an opportunity to  urge his defence which he did not avail of by sending

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272 any  reply, and that the Commandant had therefore  dismissed him  from  service by his order dated January 5,  1972.  The Munsiff held that the appellant had been given a  reasonable opportunity  before the Commandant dismissed him from  serv- ice, and dismissed the civil suit.     The  appeal  filed by the appellant was allowed  by  the Additional  District Judge and the suit was decreed. It  was held  that the order of dismissal from service  was  illegal and  bad,  as the same was not made by  the  Security  Force Court  and  no such court had been  constituted.  The  Order passed  by the Commandant under section 11(2) of the  Border Security Force Act and read with rule 177 of the Rules could not therefore be upheld. It was further held that the  order was  bad  as it was contrary to the  constitutional  mandate embodied in Article 311 of the Constitution, as no  opportu- nity  of  hearing was given, and the  procedural  safeguards contained in Chapters VII to XI of the Border Security Rules were not followed.     The  High Court decreed the second appeal  preferred  by the  respondents,  reversed the judgment and decree  of  the lower  appellate court, and dismissed the suit. It was  held that  the order of dismissal of the appellant  from  service had been made in accordance with the powers conferred on the Commandant,  BSF under the provisions of section  11(2)  and (4)  of the Border Security Force Act, 1968 read  with  rule 177  of the Border Security Forces Rules, 1969. It was  fur- ther held that this was an independent power conferred  upon the  Commandant  apart  from the power  conferred  upon  the Security Force Court under section 28 for imposition of  the punishment for dismissal from service in respect of offences specified in section 19 of the Act.     In the appellant’s appeal to this Court, it was contend- ed  that  unless and until the offence  of  absence  without leave or overstaying leave granted to a member of the  serv- ice, without sufficient cause is tried by the Security Force Court  and  punishment is awarded therefor  as  provided  in sections  48 and 50 of the Act, the order of dismissal  from service  by  the  Commandant is illegal and as  such  it  is liable to be quashed and set aside. Dismissing the appeal, it was,     HELD: 1. The Prescribed Authority i.e. the Commandant is competent  to exercise the power under section 11(2) of  the BSF  Act  and  to dismiss any person under  his  command  as prescribed under Rule 177 of the BSF Rules. [281E-F] 273     2. The Border Security Force Act, 1968 has been  enacted with  a view to provide for the constitution and  regulation of an armed force of the Union for ensuring the security  of the  borders of India and for matters  connected  therewith. The  services  of  the enrolled persons under  the  Act  are governed  by the provisions of the Act as well as the  Rules framed thereunder. [276D-E]     3.  All the offences mentioned under sections 14 and  19 of  the  Act are to be tried by the  Security  Force  Court, which  will punish the offenders with sentences as  provided in  the Act. A procedure has been provided by the BSF  Rules for  trial of the offences by the Security Force  Court  and for awarding of punishment. [279E; 280B]     4. The power under Section 11(2) empowering the  Comman- dant  who is the Prescribed Authority to dismiss  or  remove from  service  any person under his command  other  than  an officer  or a subordinate officer read with rule 177 of  the Rules is an independent power which can be validly exercised by the Commandant as a Prescribed Officer, and it has  noth-

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ing  to  do with the power of the Security Force  Court  for dealing with the offences, such as absence from duty without leave or overstaying leave granted to a member of the  Force without  sufficient  cause and to award punishment  for  the same. [281B-D]     5. Rule 6 of the Rules has specifically provided that in regard to matters not specifically provided in the Rules  it shall be lawful for the Competent Authority to do such thing or take such action as may be just and proper in the circum- stances of the case. [281F]     In  the instant case, though any procedure has not  been prescribed  by the Rules, still the Commandant duly gave  an opportunity  to  the  appellant to  submit  his  explanation against  the proposed punishment for dismissal from  service for his absence from duty without any leave and  overstaying leave without sufficient cause. The appellant did not  avail of  this opportunity and he did not file any show  cause  to the  said notice. Thus the principle of natural justice  was not  violated  as has been rightly held by the  High  Court. [281G-H]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2106  of 1989.     From  the  Judgment  and Order dated  15.7.1987  of  the Gauhati High Court in Second Appeal No. 22 of 1981. 274 N.D. Garg and Rajeev Garg for the Appellant.     Anil  Dev Singh, Ms. Indu Goswami, P.  Parmeshwaran  and Ms. Sushma Suri for the Respondents. The Judgment of the Court was delivered by     RAY,  J. Special leave granted. Heard arguments of  both the parties.     This appeal on special leave is against the judgment and decree passed by the Gauhati High Court on July 15, 1987  in Second  Appeal  No. 22 of 1981 reversing  the  judgment  and decree  dated July 24, 1981 made by the Additional  District Judge,  West  Tripura District, Agartala setting  aside  the judgment and decree passed by the Munsiff, Sadar, Tripura in Title Suit No. 33 of 1973 dismissing the Suit without costs.     The plaintiff-appellant was enrolled as a Constable  No. 66922 189 under 92 Bn, BSF in Tripura and he was serving  as such  since 1966. He alleged to have been confirmed  in  the said  post  while so posted to B.O.P.  at  Ajgar  Rahamanpur being a member of the 6th platoon under B. Company Commander Radhanagar.  In 1971, he was granted leave from 25.10.71  to 30.10.1971  on  account of the death of his father.  As  the Sradh  ceremony could not be performed within the  aforesaid time  and he was suffering from serious illness he  made  an application requesting for extension of leave supported by a medical  certificate.  On December 12,  1971  the  appellant received a communication from the Commandant stating that as he  was  absent  without leave from 31.10.1971  so  he  (the Commandant) was of the opinion that because of this  absence without  leave  for a long period his further  retention  in service  was  undesirable. He proposed to dismiss  him  from service.  The appellant was asked to submit his  explanation against  the imposition of this penalty before December  25, 1971. The appellant sent a telegram on December 21, 1971 but without any redress. On January 5, 1972 he received an order from  the Commandant, 92 Bn. BSF informing him that  he  had been dismissed from service. On January 10, 1972 the  appel- lant again prayed for permitting him to join his service but

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he  was  not allowed to do so. The  appellant  preferred  an appeal to the Inspector General, BSF (Police), Government of Tripura  on  February 1, 1972 which was received by  him  on February 3, 1972. No relief was granted to him. 275     The appellant as plaintiff after serving a notice  under Section 80 of the Code of Civil Procedure and as no  redress was  given  to him, filed Title Suit No. 33 of 1973  in  the Court of Munsiff, Sadar, Tripura for a declaration that  the order of dismissal from service was illegal and he was still in service.     The defendants-respondents contested the Suit and plead- ed  that the plaintiff was absent from duty from  31.10.1971 without  any leave at a critical time when India was at  war with  Pakistan. The Commandant, 92 Battalion, BSF by  notice dated December 15, 1971 intimated him that his retention  in service  was undesirable because of his absence for  a  long period  and  as  such it was proposed to  dismiss  him  from service.  He was given opportunity to urge anything  in  his defence but he did not avail of it by sending any reply.  He was  therefore, dismissed from service by the Commandant  by order  dated January 5, 1972 in accordance with  the  provi- sions  of  Border  Security Force Act, 1968  and  the  Rules flamed thereunder.     The Munsiff held that the plaintiff was given reasonable opportunity  before the Commandant dismissed him from  serv- ice. The suit was, therefore, dismissed.     Against the said judgment and decree the plaintiff filed an appeal which was registered as Title Appeal No. 7 of 1979 in  the  Court of Additional District  Judge,  West  Tripura District Agartala. The said appeal was allowed and the  suit was decreed. It was held that the impugned order of dismiss- al from service was illegal and bad as the same was not made by  Security Force Court and no such Court was  constituted. The  order passed by Commandant under Section 11(2)  of  the Act  read with Rule 177 of the Rules of 1969 cannot  be  up- held. It was also held that the impugned order was bad as it was  contrary  to  the constitutional  mandate  embodied  in Article  311 of the Constitution of India as no  opportunity of  hearing  was given and the procedural  safe.  guards  as contained  in Chapters VII to XI of the Rules were not  fol- lowed for arriving at a decision of guilt against the appel- lant by Security Force Court.     Feeling  aggrieved by the said judgment and  decree  the respondents  preferred a second appeal being S.A. No. 22  of 1981  in the Gauhati High Court. On July 15, 1987  the  High Court decreed the said appeal on reversing the judgment  and decree of the lower appellate court and dismissing the  suit holding  inter  alia  that  the  order  of  dismissal   from service-in-question had been made in accordance with the 276 powers conferred on the Commandant, B.S.F. under the  provi- sions of Section 11(2) and (4) of Border Security Force Act, 1968  read  with Rule 177 of Border  Security  Force  Rules, 1969.  It was also held that this was an  independent  power conferred upon the Commandant apart from the power conferred upon  the Security Force Court under Section 48 of the  said Act  for imposition of punishment of dismissal from  service in  respect of the offences specified in Section 19  of  the said Act.     The  plaintiff-appellant  filed the  instant  appeal  on special leave against the said judgment and decree passed by the High Court in the said Second Appeal.     The only challenge to the judgment in appeal is that the order  of  dismissal  dated January 5, 1972  passed  by  the

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Commandant  is illegal and unwarranted in as much  as  there was  no order made by the Security Force Court  for  passing the  impugned order of dismissal for an offence  made  under Section 19 of the Border Security Force Act, 1968  following the  procedure contained in chapters VII to XI of the  Rules framed  under Section 141 of the Border Security Force  Act. The  Border Security Force Act has been enacted with a  view to  provide for the constitution and regulation of an  armed force of the Union for ensuring the security of the  borders of India and for matters connected therewith, by the Parlia- ment and the same has been enforced by Notification No. S.O. 732 dated the 20th February, 1969.     Section 4 of Border Security Force Act to be referred to hereinafter in short as BSF Act provides that:                    "There  shall  be an armed force  of  the               Union called the                    Border  Security Force for  ensuring  the               security of the                    borders of India."               Sub-Section (2) further provides that:               "Subject  to the provisions of this  Act,  the               Force  shall be constituted in such manner  as               may be prescribed and the conditions of  serv-               ice of the members of the Force shall be  such               as may be prescribed."               Section 10 says that:               "Subject to the provisions of this Act and the               rules, the               277               Central Government may dismiss or remove  from               the service any person subject to this Act."                   Section 11 which is very relevant for  the               decision of the instant case is quoted herein-               below:               "(1)  The Director-General or  any  Inspector-               General 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               InspectorGeneral 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  as               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 subordinate officer.               (4)  The  exercise  of any  power  under  this               section shall be subject to the provisions  of               this Act and the rules."                   Chapter  III specifies the offences  under               the  BSF Act. Section 19 of the  said  Chapter               states that:               "Any  person subject to this Act  who  commits               any of the following offences, that is to say:               (a) absents himself without leave; or               (b)  without sufficient cause overstays  leave               granted to him; or               (c)  being  on  leave of  absence  and  having               received  information  from  the   appropriate               authority  that any battalion or part  thereof               or  any other unit of the Force, to  which  he               belongs,  has  been ordered  on  active  duty,

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             fails,  without  sufficient cause,  to  rejoin               without delay; or .................... .............  etc. etc.               278               shall,  on  conviction  by  a  Security  Force               Court, be liable to suffer imprisonment for  a               term  which may extend to three years or  such               less punishment as is in this Act mentioned."                   All  the offences incorporated in  Chapter               III  are  convictable by  the  Security  Force               Court.                   Chapter  IV which starts from  Section  48               provides  for punishment to be awarded by  the               Security  Force Courts in respect of  the  of-               fences specified therein as under:               "(a) death;               (b) imprisonment which may be for the term  of               life  or any other lesser term  but  excluding               imprisonment  for a term not  exceeding  three               months in Force custody;               (c) dismissal from the service; ................ ............  etc. etc."               Section 50 further provides that:               "A  sentence  of a Security  Force  Court  may               award in addition to, or without any one other               punishment, the punishment specified in clause               (c) of sub-section (1) of Section 48, and  any               one  or more of the punishments  specified  in               clauses  (e)  to (1) (both inclusive  of  that               sub-section.)"               Chapter VII deals with the procedure of  Secu-               rity Force Courts.                   Chapter IX prescribes the procedure to  be               followed by Security Force Courts for thai  of               offences.                   The Central Government has framed Rules in               exercise  of powers conferred  by  sub-section               (1)  and  (2) of Section 141 of the  BSF  Act,               1968  (Act 47 of 1968). These Rules are  known               as BSF Rules, 1969. Rule 177 prescribes that:               "The Commandant may, under sub-section (2)  of               Section 11, dismiss or remove from the service               any person under his               279               command other than an officer or a subordinate               officer."                   On  a consideration of the  provisions  of               the  BSF Act, it is evident that the  services               of the enrolled persons under the BSF Act  are               governed by the provisions of the Act as  well               as  the  Rules framed thereunder. It  is  also               evident  that  Chapter III which  starts  with               Section  14  of  the said  act  specifies  the               various offences under the Act. Section 19  of               the  said  Chapter refers amongst  others  the               following offences:               "(a) absents himself without leave; or               (b)  without sufficient cause overstays  leave               granted to him; or               (c)  being  on  leave of  absence  and  having               received  information  from  the   appropriate               authority  that any battalion or part  thereof               or  any other unit of the Force, to  which  he

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             belongs,  has  been ordered  on  active  duty,               fails,  without  sufficient  cause  to  rejoin               without delay; or ..........  etc. etc."                   All these offences are to be tried by  the               Security  Force  Court which will  punish  the               offenders  with sentences as provided  in  the               Act.                   Section 48 specifically provides that  the               Security Force Court may inflict punishment in               respect of the following offences committed by               the  person subject to the said Act  according               to the following scale:               "(a) death;               (b) imprisonment which may be for the term  of               life  or any other lesser term  but  excluding               imprisonment  for a term not  exceeding  three               months in Force custody;               (c) dismissal from service ................. ...............  etc. etc."               Section 50 further provides that:               "A  sentence  of a Security  Force  Court  may               award in addition to, or without any one other               punishment, the punish-               280               ment  specified in clause (c)  of  sub-section               (1) of Section 48........."     A procedure has been provided by BSF Rules for trial  of the offences by the Security Force Court and for awarding of punishment.  The  order of dismissal of the  appellant  from service  was assailed mainly on the ground that it  was  not made  in accordance with the provisions of the Act  and  the Rules framed thereunder in as. much as there was no trial by the  Security  Force Court nor any order of  punishment  was awarded  by the Security Force Court as required  under  the provisions of the Act. Section 11(2) of the Act empowers the Commandant  who  is  the Prescribed Officer  to  dismiss  or remove from service any person under his command other  than an  officer or a subordinate officer of such rank  or  ranks subject to the provisions of the said Act and the Rules.  It has been urged that unless and until the offence of  absence without  leave or overstaying leave granted to a  member  of the Service, without sufficient cause is tried by the  Secu- rity  Force  Court and punishment is  awarded  therefore  as provided  in Section 48 and Section 50 of the said Act,  the impugned  order of dismissal from service by the  Commandant for absence without leave and for overstaying leave  without sufficient cause, is illegal and as such it is liable to  be quashed  and set aside. It has been further  submitted  that the  power of the Commandant as a Prescribed  Officer  under Section  11(2) being subject to sub-section 4 of Section  11 i.e. the exercise of this power is subject to the provisions of  the  Act and the Rules, that is the  Commandant  is  not competent  to dismiss the appellant from service unless  the Security  Force  Court has tried the appellant  and  awarded punishment  in accordance with the procedure  prescribed  by the  Act and the Rules framed thereunder. The power  of  the Commandant  to  order a member of the Force  other  than  an Officer  or  Subordinate Officer from  service  as  provided under the Act read with Rule 177 of the Rules is subject  to the  limitation that unless the Security Force Court  passes an order of conviction and sentence on the delinquent member of  the  Force following the procedure prescribed,  such  an order  cannot be made and enforced. It has, therefore,  been

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submitted  that the impugned judgment rendered by  the  High Court  which  held that the power under Section  11(2)  read with  Rule  177 of the said Rules was an  independent  power conferred  on the Prescribed Authority i.e. the  Commandant, is not in accordance with law and as such the same  requires to be set aside.     It has, however, been urged on behalf of the State  that the power conferred on the Commandant as Prescribed Authori- ty under Section 281     1(2)  to dismiss any person under his command  from  the service read with Rule 177 of the said Rules is an independ- ent power as held by the High Court and as such the impugned order  of dismissal from service of the appellant passed  by the respondent is not at all arbitrary or illegal.     We  have scrutinised the relevant provisions of the  BSF Act  as well as the BSF Rules framed thereunder and we  have no hesitation to hold that the power under Section 11(2)  of the Act empowering the Prescribed Authority i.e. the Comman- dant to dismiss or remove from service any person under  his command other than an officer or a subordinate officer  read with  Rule  177 of the said Rules is  an  independent  power which  can  be  validity exercised by the  Commandant  as  a Prescribed  Officer and it has nothing to do with the  power of  the Security Force Court for dealing with  the  offences such as absence from duty without leave or overstaying leave granted  to a member of the Force without  sufficient  cause and to award punishment for the same. The provision of  sub- section  4 of Section 11 which enjoins that the exercise  of the  power under the aforesaid Section shall be  subject  to the  provisions  of the Act and the Rules does  not  signify that  the  power  to dismiss a person from  service  by  the Commandant  for his absence from duty without leave  without any reasonable cause or for overstaying leave without suffi- cient  cause and holding him as undesirable cannot be  exer- cised unless the Security Force Court has awarded punishment to  that person in accordance with the procedure  prescribed by  law.  The Prescribed Authority i.e.  the  Commandant  is competent  to exercise the power under Section 11(2) of  the said  Act  and to dismiss any person under  his  command  as prescribed under Rule 177 of the BSF Rules. It is also to be noticed in this connection that Rule 6 of the said Rules has specifically provided that in regard to matters not specifi- cally  provided  in  the Rules it shall be  lawful  for  the Competent Authority to do such thing or take such action  as may be just and proper in the circumstances of the case.  In this  case though any procedure has not been  prescribed  by the  Rules still the Commandant duly gave an opportunity  to the appellant to submit his explanation against the proposed punishment  for dismissal from service for his absence  from duty without any leave and overstaying leave without  suffi- cient cause. The appellant did not avail of this opportunity and he did not file any show cause to the said notice.  Thus the  principle  of natural justice was not violated  as  has been rightly held by the High Court. No other point has been urged  before us by the learned counsel appearing on  behalf of the appellant. 282     In  the premises aforesaid, we do not find any merit  in this  appeal which is accordingly dismissed  without  costs. The judgment and decree of the High Court in S.A. No. 22  of 1981 is confirmed. N.V.K.                                          Appeal  dis- missed. 283

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