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PETITIONER: UNION OF INDIA AND OTHERS

       Vs.

RESPONDENT: RAM PHAL

DATE OF JUDGMENT:       28/02/1996

BENCH: NANAVATI G.T. (J) BENCH: NANAVATI G.T. (J) AGRAWAL, S.C. (J)

CITATION:  1996 AIR 1500            1996 SCC  (7) 546  JT 1996 (3)   276        1996 SCALE  (2)503

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI. J.      The respondent,  a constable  in the  BSF, filed a suit for declaration that the order of his dismissal from service was  illegal   and  void  and  for  a  mandatory  injunction directing the  appellants to  take him  back in service. The suit was  partly decreed.  The declaration as prayed for was granted but  mandatory  injunction  was  refused.  Both  the parties filed  appeals against the said judgment. The appeal filed  by  the  respondent  was  allowed  and  that  of  the appellant was  dismissed. The  appellant then filed a second appeal in  the Delhi High Court but that was also dismissed. The  appellant   has  therefore   filed  this  appeal  after obtaining special leave.      The relevant facts are that the respondent was enlisted as a  constable in  the BSF. On 21.12.83 he was found absent in the Coy Roll Call. He was also not found in the lines. He remained absent  thereafter also.  So on 21.1.1984, a notice was given to him to report for duty forthwith but he did not turn up.  One more  notice was given to him but there was no response from  him. Thereafter, an enquiry was ordered under Section 62  of the BSF Act. Ultimately he was deemed to be a deserter. On  20.4.1984 because of his continuous absence, a show cause  notice was  given calling upon him to show cause why he  should not  be dismissed as his further retention in service was  considered undesirable.  The respondent did not reply to  the said notice. Therefore, on 5.5.1984 Commandant Vikram Singh passed an order dismissing him from service. An appeal was filed against that order but that was rejected.      On 6.11.1986 he filed a suit challenging the said order of dismissal.  His case  was that  on  18.12.1983,  sometime before mid-night,  while he was proceeding to perform Sentry duty he  was given  ’pan’ by his colleague. After eating it, he felt giddy and became semi-conscious. He was taken to the Sub-Inspector who  thought that  he had  consumed liquor. He

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was man  handled by that S.I. and thrown out of the barrack. Some unknown  persons took  him  to  his  native  place.  He thereafter suffered from mental illness and could not resume his duty  nor could  he reply to the notice dated 20.4.1984. He recovered  after a  year and then he came to know that an order dismissing  him  was  already  passed.  The  order  of dismissal was  challenged on  the ground  that  it  was  not within the  competence of  the Commandant  to pass  such  an order and  that the penalty of dismissal could not have been imposed without  holding an enquiry in the manner prescribed by the  Act and the Rules. The appellant defended the action on the  ground that  after the respondent was deemed to be a deserter his  service came  to be  terminated in exercise of the power  available under  Section 11  of the  Act and that according to  Rule 177  of the BSF Rules the commandant is a competent officer for taking action under Section 11 (2).      The learned  trial Judge  held that  after a  person is deemed to  be a  deserter he  has to  be tried by a Security Force Court  under Section 19 of the Act after he surrenders and is  arrested and  only thereafter penalty can be imposed upon him.  The learned  Judge also  held that  the  impugned action cannot be supported under Section 11(2) of the Act as the power  under  that  section  can  be  exercised  by  the Director General  or the  prescribed officer  and there  was nothing on  record to  show that Commandant Vikram Singh was competent to pass the impugned order. The learned Judge also held that  power under  Section 11  could be  exercised only after holding  an enquiry  in accordance with the principles of natural  justice. According  to  the  learned  Judge,  as neither any  court was  constituted as required for awarding punishment for the offence alleged to have been committed by the respondent nor any chargesheet was issued as required by the prescribed  procedure, the  order of dismissal has to be regarded as  illegal. The  learned Judge  did not  grant the mandatory injunction  as he  was of  the  opinion  that  the respondent had  to first  surrender and  then it was open to the authorities  to take  action against  him.  The  learned Additional District Judge dismissed the appeal filed by the appellant not  only agreeing  with the  findings recorded by the lower  court but  also on  the ground  that the order of dismissal itself discloses that the period of absence of the respondent was  treated as  extra ordinary  leave  and  that amounted to  regularizing his  absence  and,  therefore,  no order of  dismissal could  have been  lawfully passed on the ground of  continuous  absence.  The  High  Court  summarily dismissed the  second appeal  as it  was of the view that no substantial question  of law  was involved  and on the facts there were concurrent findings of both the courts. As stated earlier the  High Court summarily dismissed the appeal filed by the appellant.      Mr.  Tulsi,   learned  Additional   Solicitor  General, contended that  the courts  below have  failed to appreciate that the order of dismissal was passed not by way of penalty for any  offence committed by the respondent but in exercise of the  power available  to the  authorities  under  Section 11(2) of the Act. Under that provision any officer not below the  rank  of  Deputy  Director-General  or  any  prescribed officer has  the power to dismiss or remove from service any person  under  his  command  other  than  an  officer  or  a subordinate officer  of such  rank or ranks as prescribed by the Rules. He then submitted that this power is separate and independent of  the power  to punish for an offence. He also drew our  attention to Rule 177 of the Rules under which the Commandant is  authorised to take action under Section 11(2) of the  Act against  any person under his command other than

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an officer  or a  subordinate officer and submitted that the respondent was  not an  officer or  subordinate officer and, therefore, Commandant  was competent  to pass  the  impugned order  of   dismissal.  He  further  submitted  that  before exercising that power no enquiry was required to be held and as  the  respondent  was  given  a  show  cause  notice  the principles of  natural justice  were also  satisfied. On the other hand  the learned counsel for the respondent contended that as  no inquiry  was held  before passing  the dismissal order, it was rightly held by the courts below as illegal.      In  Gouranga  Chakraborty  Vs.  State  of  Tripura  and Another [1989  (3) SCC  314], this  Court has  held 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  and that the power under Section 11(2) of the  Act  empowering  the  prescribed  authority,  i.e.  the Commandant 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 validly  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. Though in  the order  of dismissal  it was  not stated under which provision  of law  it was  passed, the  appellant  had disclosed in  the written statement that it was passed under Section 11(2)  of the  Act. Therefore, the view taken by the courts below that the order of dismissal could not have been passed without  first holding  an enquiry  by  the  Security Force Court and that the Commandant had no authority to pass such an  order under  Section 11(2)  of the  Act is  clearly erroneous.      We are,  however, not able to agree with the contention raised by  the learned Additional Solicitor General that for exercising power  under Section  11(2) of the Act no enquiry is required  to be  held and  considering the  nature of the Force and  the utmost  necessity of  maintaining  discipline giving a  show cause notice should be regarded as sufficient compliance with  the principles  of natural justice. Section 11 is  silent in  this behalf  and it  appears that  earlier there was  no Rule  indicating  the  circumstances  and  the manner in  which that  power was to be exercised. But now we find that  the Rules  contain  such  a  provision.  Rule  20 provides for  termination of  service  for  misconduct.  The relevant part of the rule reads as under :      "(1) Where  in the  opinion of  the      Director General  a person  subject      to the Act has conducted himself in      such manner  whether  or  not  such      conduct amounts  to an  offence, as      would  render   his  retention   in      service undesirable  and his  trial      by     Security     Force     Court      inexpedient,  the  Director-General      may  inform  the  person  concerned      accordingly.      (2)  The   Director  General  shall      further inform the person concerned      that it  is proposed  to  terminate      his  services   either  by  way  of      dismissal or removal. (S.11)      (3)  The   Director  General  shall      furnish    the    particulars    of

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    allegations  and   the  report   of      investigation    (including     the      statement  of  witnesses,  if  any,      recorded and  copies of  documents,      if any  intended to be used against      him)  in  cases  where  allegations      have been investigated:           Provided   that    where   the      allegations    have     not    been      investigated, the  Director-General      shall   furnish   to   the   person      concerned the  names  of  witnesses      with  a   brief  summary   of   the      evidence and  copies of  documents,      if   any,   in   support   of   the      allegations.      (4) ...................      (5) ...................      (6)  The   person  concerned  shall      within seven  days from the receipt      of  information  furnished  to  him      under  subrule   (3)   inform,   in      writing, the Director-General :      (a) his acceptance or denial of the      allegations;      (b) any  material  or  evidence  he      wishes  to  be  considered  in  his      defence;      (c)  names  of  witnesses  whom  he      wishes to cross examine; and      (d)  names  of  witnesses  whom  he      wishes to examine in his defence.      (7) Where  the person concerned has      expressed a  wish to  cross-examine      any witness or to produce witnesses      in defence,  the  Director  General      shall appoint  an  enquiry  officer      who shall be an officer superior to      the  person   against  whom  it  is      proposed to take action and had not      taken any  part previously  in  the      investigation into the matter." Rule 21  provides for  appointment of an enquiry officer and the procedure  to be  followed by  him. Rule 22 provides for imposition of penalty. Sub Section 4 of Section 11 makes the exercise of  any power  under that  section subject  to  the provision of  the Act  and also  the Rules. Therefore, after introduction of  Rule 20  in the  Rules it cannot be validly contended that  no enquiry need be held while exercising the power under  Section 11(2).  We  will  now  examine  if  the prescribed procedure  was followed  in this  case. The  show cause notice clearly appears to have been issued in terms of subrule 1 of Rule 20. It reads as under :      "You have been absent without leave      with effect from 21st Dec.,83. I am      of the opinion that because of this      absence without  leave for  such  a      long period. Your further retention      in  service   is  undesirable.   I,      therefore, tentatively  propose  to      terminate your  service by  way  of      dismissal. If  you have anything to      urge in your defence or against the      proposed  action,  you  may  do  so      before 4.5.84.  In case no reply is

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    received by  that date,  it will be      inferred that  you have  no defence      to put forward."      The first  sentence in  the notice  that you  have been absent  without   leave  with   effect  from  21st  Dec.,83" satisfied the  requirement of  sub-rule (3). When it further stated that  "I am  of the  opinion  that  because  of  this absence without  leave for  such a long period, your further retention in  service is  undesirable it  complied with  the requirement of  sub-rule (1) and as required by sub-rule (2) it was further stated therein that "I therefore, tentatively propose to  terminate your service by way of dismissal". The respondent was  called upon  to show cause within seven days as required  by subrule  6. No further inquiry was held; but we find that nothing further was required to be done in this case. The  respondent did not reply to the notice. There was no denial  of the  allegations and  no request  to  hold  an enquiry. Therefore,  it was  not incumbent upon the Director General to  appoint an enquiry officer to conduct an enquiry in the  manner prescribed  by Rule  21. Thus  the prescribed procedure was  followed before  passing the dismissal order. The courts  below have  failed  to  appreciate  the  correct position of law and the facts. It was therefore wrongly held that the  order of  dismissal was  illegal as  it was not in accordance with the provisions of the Act and the Rules.      It was,  however, contended  by the learned counsel for the respondent,  relying upon the decision of the High Court of Punjab in State of Punjab Vs. Channan Singh [1988 (3) All India Services  Law Journal  216] that once the absence from duty without leave is condoned or regularized by treating it as extraordinary  leave no order of removal of dismissal can thereafter be  passed on  the ground  of absence  from  duty without leave. The learned counsel drew our attention to the second paragraph of the dismissal order wherein it is stated that "the  absence period  from 21 Dec. 83 to 05 May 84 (FN) is hereby  treated as  EOL". He submitted that as the period of respondent’s absence from 21st December, 1983 to 5th May, 1984 was  treated as extra ordinary leave, it could not have been, without being inconsistent, treated as absence without leave for  the purpose of passing the order of dismissal. In Channan Singh’s  case (supra),  the  high  Court  of  Punjab referred to  the decisions  in Tito  Francisco  Pereira  Vs. Administrator of  Goa Daman and Diu and others 1978 SJL 614, G.  Papaiah   Vs.  Assistant   Director,  Medical  Services, Secunderabad AIR  1976 AP 75 and Bhursinh Hamsinh Rajput Vs. The State  of Gujarat  and another  1982  (1)  SLJ  697  and observed that  the consensus  of the  decisions is that once the period  of absence  is treated  as  leave  of  any  kind whatsoever, the fact that the person remained absent no more survives and  the charge  of absence  from  duty  cannot  be sustained after  the person  has been  treated on  leave  of whatsoever kind it may be. In all those cases a departmental action was  initiated for  imposition of  penalty  upon  the delinquent employee  for the  misconduct of remaining absent without leave and on completion of enquiry, while Passing an order of  penalty, it  was further  ordered that the absence should be  treated as  leave of  some kind.  As absence  was treated as  leave of  whatever  kind,  it  ceased  to  be  a misconduct and,  therefore, it  could  not  thereafter  have survived as a basis for imposing penalty. For that reason it was held  in those  cases that  as the  very basis  for  the charge was knocked out no order of dismissal could have been passed  thereafter.   In  the  present  case  the  order  of dismissal  was   not  passed  by  way  of  penalty  for  the misconduct of  absence from  duty without leave. Though such

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absence was the cause and, therefore it has been referred to in the  show cause  notice and  the order  of dismissal, the respondent’s service came to be terminated on the ground that his  conduct had  rendered  his  retention  in  service undesirable. The  order of respondent’s dismissal was passed not because  the misconduct  of absence  without  leave  was proved but  because his  further continuance  in service was considered undesirable.  The order  was passed not by way of penalty but in exercise of an independent and separate power conferred by  Section  11.  Obviously,  after  holding  that further retention  of the  respondent  in  the  service  was undesirable, while  passing the  order of  dismissal it  was necessary to pass some order as to how the period of absence from 21.12.83  to 5.5.84  was treated  for the  purposes  of finalizing the  dues  and  other  benefits  payable  to  the respondent. While  ordering that  period to  be  treated  as extraordinary leave  the Commandant  did not  knock out  the basis of  the order  of dismissal passed by him as the basis of the  order was that by remaining absent without leave for a long  period the  respondent had so conducted himself that his further  retention in service had become undesirable. We do not  think that  by treating  the period  of  absence  as extraordinary leave  the Commandant  had made  his order  of dismissal  inconsistent.  Therefore,  without  deciding  the contention of  the learned Additional Solicitor General that the said decisions do not lay down correct law, we hold that the ratio laid down in those cases cannot apply to a case of this type.      We,  therefore,   allow  this  appeal,  set  aside  the judgment and order passed by the Delhi High Court in Regular Second Appeal No.1 of 1991 and dismiss the suit filed by the respondent. In  the facts  and circumstances  of  the  case, there shall be no order as to costs.