IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3453 OF 2006

UNION OF INDIA & ORS. .......APPELLANT(S)  

Versus

DEBASHISH GHOSH .....RESPONDENT(S)

O R D E R

This is  an appeal by Union of India against  the judgment of the Division  

Bench of the Calcutta High Court whereby the Calcutta High Court allowed the writ  

appeal  filed  by  the  respondent  herein.   The  respondent  herein  was  serving  as  a  

constable in the Border Security Force, 'BSF' for short, having joined the service in the  

year 1988.  In his checkered career, on seven occasions, he went on leave and never  

reported back in time.  On first two occasions, he was merely warned but thereafter on  

three occasions he was imprisoned for 28 days under the BSF Act.  He did not mend his  

ways  and  remained  absent  for  substantial  period  on  seventh  occasion.   He  was,  

therefore, charge-sheeted for the offence under Section 19 of the BSF Act.  Summary  

Court  was formulated,  evidence was collected and ultimately he was ordered to be  

dismissed.  That dismissal was challenged by him by filing a writ petition.   The learned  

single Judge of the Calcutta High Court dismissed his writ petition.  Thereafter,   he  

filed an appeal in which he succeeded.  That is how the matter has come before us.

.......2.

- 2 -

2. The  Division  Bench  has  taken  a  view  that  the  punishment  of  dismissal  

awarded to the respondent could not have been awarded reading Sections 19, 48(c) and  

49 of the BSF Act.  It is on that short ground that the punishment of dismissal has been  

set aside by the High Court in the impugned judgment.  We must point out at this stage  

that after allowing the appeal, his reinstatement has been ordered, though the High  

Court has kept it open for the respondent Union of India to take appropriate action in  

accordance with the provisions of the Act and law as indicated.

3. We have carefully considered the provisions as well as the facts which have  

been brought before us by the learned counsel appearing on behalf  of the Union of  

India.  He points out that as per Section 19, the punishment for the offence covered  

under  clause(c)  thereof  would  ordinarily  have  been  three  years.   Learned  counsel  

points out to the particular portion of the Section which are as under:-

“19.  Absence without leave.- Any person subject to this  Act who  commits any of the following offences, this is to say,-

(a) x x x

(b) without sufficient cause overstays leave granted  to him; or

(c) to (g) x x x

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.”

[Emphasis supplied] ......3.

- 3 -

Learned  counsel  further  takes  us  to   Section  48  which  provides  the  punishments  

awardable in the Act.  Those punishments are:

(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;

(d) imprisonment  for  a  term  not  exceeding  three  months  in  Force  

custody;

(e) to (l) x x x x x

Learned counsel argues and in our opinion rightly that the punishment of dismissal is  

certainly a lesser punishment than the three years of rigorous imprisonment which was  

awardable under Section 19 (see the emphasised portion of Section 19 quoted earlier)  

and,  therefore, that punishment was awarded to the delinquent respondent  and the  

authorities were, therefore, justified in passing the order of punishment of dismissal.  

He also invites our attention to sub-section (2) of Section 48 which are as under:-

“(2) Each  of  the  punishments  specified  in  sub-section(1)  

shall  be  deemed to  be  inferior  in  degree  to  every  punishment  

preceding it in the above scale.”

Learned  counsel,  therefore,  buttresses his argument further  

......4.

- 4 -

that punishment provided under Section 48(1)(c) is a lesser punishment than Section  

48(1)(b) and under Section 19 the punishment covered by Section 48(1)(b) could have  

been given but the lesser punishment of dismissal was given.  Learned counsel also  

points out the power to award alternative punishments awardable by Security Force  

Courts covered by Section 49.

4. The learned counsel appearing on behalf of the respondent points out that in  

the  past  the  delinquent  respondent  was  awarded  with  punishment  of  28  days  

imprisonment for his  overstaying and,  therefore,  he should  have been awarded the  

punishment  upto  90  days  as  covered  under  Section  48(1)(d)  and,  therefore,  the  

punishment of  dismissal  could  not  have been awarded by  the  authorities.   We are  

unable  to  agree  with  this  argument.   As  pointed  out  earlier,  the  punishment  of  

dismissal is certainly a lesser punishment than the one covered under Section 48(1)(b)  

which could have been the punishment of three years as covered under Section 19. If,  

therefore, the lesser punishment of dismissal was given, the authorities were perfectly  

justified in awarding such lesser punishment.

5. The learned counsel  for  the  respondent  also  says  that  the punishment of  

dismissal was disproportionate considering that on earlier occasions he  was  either  

given  imprisonment

.....5.

- 5 -

punishment for 28 days or merely warned.  The same offence had been committed on  

the basis of which the proceedings were initiated against him.  We do not agree.  BSF is  

a  uniformed service  and,  therefore,  the  discipline  is  extremely  important  for  such  

Force.   It  was  obvious  that  during  nine  years  that  he  served  in  the  BSF,  he  has  

overstayed his leave for seven times.  Thus, he had probably developed a habit of not  

joining in time after exhausting his leave.   

6. In that view, we do not feel that the punishment is disproportionate to the  

misconduct on the part of the delinquent respondent.   We, therefore, are unable to  

agree with the appellate judgment of the Calcutta High Court which has taken a view  

that  the punishment of  dismissal  could  not  have been awarded on the basis  of  the  

language  of  Sections  19,  48(c)  and  49  and  would  choose  to  set  aside  the  same.  

Accordingly, the impugned judgment of the Calcutta High Court is set aside and that  

of the learned single Judge is restored without any order as to costs.

  ...........................J.    ( V.S. SIRPURKAR )

New Delhi;    ...........................J. May 21, 2009.              ( R.M. LODHA )