Didar Singh v. Mr.Hemen Aggarwal, Advocate, Addl.Central Government Standing Counsel, for Union of India

Reference was made to Rule 7 of the Border Security Force Rules, 1969 (hereinafter called as, “the Rules”) to say that the appellant was liable to be removed from service for contracting second marriage. Rule 7 of the Rules appears in Chapter II of the Rules, which relates to recruitment. This rule, as initially enacted, provided for ineligibility for appointment, enrollment or employment to the force. As per this rule, no person who had more than one wife living Regular Second Appeal No.532 of 1986 (O&M) : 5 : or who having a spouse living married in any such case in which such marriage was void by reasons of its taking place during the life time of such spouse, was eligible for appointment, enrollment or employment in the Force. As per this Rule, as then existing, no woman was eligible for appointment, enrollment etc. There was then a proviso in the rule that the Central Government may, if satisfied, that there are sufficient reasons for so to order, exempt any person from the operation of this Rule.

It is, thus, clear that this Rule only provided for conditions of ineligibility for enrolment, recruitment or appointment etc. Rule 7 of the rules was substituted on 13 March, 1993 and it now read as under:-

Disqualification- No person,- (a) who has entered into or contracted a marriage with a person having a spouse living, or (b) who, having a spouse living, has entered into or contracted a marriage with any person shall be eligible for appointment in the Force. Provided that the Central Government may, if satisfied, that such marriage is permissible under the personal law applicable to such person and the other party to the marriage and that there are other grounds for so doing, exempt any person from the operation of this rule.

Initially Rule 7 read as under:-

Ineligibility.-(1) No person, who has more than one wife living or who is having a spouse living marries in any case Regular Second Appeal No.532 of 1986 (O&M) : 6 : in which such marriage is void by reason of its taking place during the life time of such spouse, shall be eligible for appointment, enrolment, or employment in the Force, (2)no woman shall be eligible for appointment, enrolment or employment in the Force: Provided that the Central Government may if satisfied, that there are sufficient grounds for so ordering exempt any person from the operation of this rule.

Amended as well as unamended rule only made a provision for providing the conditions of ineligibility or disqualification for appointment to the force.

This rule cannot be read to mean as an enabling provision to dismiss an employee, who had validly been enrolled or recruited or appointed to the Force. Concededly, this provision has been used to dismiss the appellant from service, which may not sound legally tenable. The first question of law that thus would arise is whether the powers have been invoked under a provision, which is enabling one? If the provisions of the Border Security Force Act are analysed, as these were enacted initially, then it can be seen that power to dismiss or remove an employee can be exercised in two ways. It can either be by a sentence passed by a Security Force Court after holding trial for an offence alleged and proved or by exercise of power administratively. Section 10 of the Act has made a provision for dismissing or removing any person subject to the Act administratively without the intervention of Security Force Court.

The Regular Second Appeal No.532 of 1986 (O&M) : 7 : section is as under:- “Termination of service by Central Government:- Subject to the provisions of this Act and the rules, the Central Government may dismiss or remove from the service any person subject to this Act. Section 11 of the Act then makes a provision for dismissal, removal or reduction in rank by Director General or other officer. This Section reads:- “Dismissal, removal or reduction by the Director- General and by other officers.- (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 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 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 a subordinate officer. (4)The exercise of any power under this section shall be subject to the provisions of this Act and the rules.” There has not been any change made in these sections. It would be seen that powers available under Sections 10 and 11 are subject to the provisions of the Act and the Rules made Regular Second Appeal No.532 of 1986 (O&M) : 8 : thereunder. The procedure to pass order of dismissal or removal is regulated by the provisions made in the Rules. Rules have been framed to regulate the power to order dismissal, removal and retirement. These rules are contained in Chapter IV of the Rules with a heading reading `Termination of service'. Rule 17 of the Rules talks of retirement on the ground of unsuitability. Rule 18 then makes a provision for retirement on the ground of physical unfitness.

Rule 19 regulates the case of resignation. Termination of services on the ground of misconduct is governed by the procedure given in Rule 20 of the Rules. This rule (as enacted initially) was as under:- “20. Termination of service for misconduct-(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. (3) The Director-General shall furnish the particulars of 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 Regular Second Appeal No.532 of 1986 (O&M) : 9 : 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) Notwithstanding the provisions of sub-rule (3) where it would not be in public interest to disclose the evidence or the documents, it shall be lawful for the Director-General to withhold copies of such evidence or documents from the person concerned. (5) Where any evidence or document is withheld under sub-rule (4), the Director-General shall record the nature of the evidence or the document withheld and forward the same to the Central Government together with the reasons for withholding such evidence or document. (6) The person concerned shall within seven days from the receipt of information furnished to him under sub rule (3) inform, in writing, the Director-General:- (a) (b) his acceptance or denial of the allegations; 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 Regular Second Appeal No.532 of 1986 (O&M) : 10 : appoint an enquiry officer who shall be an officer superior to the person against whom it is proposed to take action and has not taken any part previously in the investigation into the matter. (8) Where any complaint has been received by the Central Government against a person subject to the Act that he has conducted himself in such manner as would render his retention in service undesirable, the Central Government may require the Director- General to take necessary action in this behalf in accordance with the provisions of the foregoing sub- rules.” Pointed reference here may also be made to Rule 20(8) of the Rules. When a complaint is received by the Central Government to the effect that a person under the Act had conducted himself in such a manner as would render his retention in service undesirable, the Central Government may require the Director General to take necessary action.

This ofcourse, has to be done in accordance with the procedure given in the rule, i.e., Rule 20 of the Rules. A procedure to hold enquiry and to detail an Enquiry Officer is given in Rule 21. This is followed by Rule 22 for imposing penalty, which may also include dismissal or removal. Exception is then carved out in the form of Rule 23 for dismissal or removal by the Central Government without following the procedure as laid down in the rules, noted above, when it is of the opinion that it is not reasonably practicable to follow the same or it is not expedient in the interest of security of the State to follow the procedure. The Regular Second Appeal No.532 of 1986 (O&M) : 11 : Government may then order dismissal or removal from the Force without following the procedure as given in Rules 20 and 21 of the Rules. Rule 24 makes provision for retirement of subordinate Officers and enrolled persons on fulfillment of condition of enrollment.

It would be essential to make reference to Rule 25, which talks of retirement of subordinate officer and enrolled person on the ground of physical unfitness and Rule 26 of the Rules, which regulates the retirement on the ground of unsuitability. All these rules have distinguishably been amended by providing a different enabling power and a different procedure. Rule 20 has now been amended to make a provision for termination of service of Officers by the Central Government on account of misconduct. This has also been worded differently by providing a different procedure as was initially given in the said Rule. The amended Rule 20 reads as under:- ““20. Termination of service of officers by the Central Government on account of misconduct.-(1) When it is proposed to terminate the service of an officer under section 10 on account of misconduct, he shall be given an opportunity 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 Central Government is satisfied that for reasons, to be recorded in writing, it is not expedient or Regular Second Appeal No.532 of 1986 (O&M) : 12 : reasonably practicable to give to the officer an opportunity of showing cause.

(2)When after considering the reports on an Officer's misconduct, the Central Government or the Director- General, as the case may be, is satisfied that the trial of the Officer by a Security Force Court is in expedient or impracticable, but is of the opinion that the further retention of the said officer in the service is undesirable, the Director General shall so inform the officer together with particulars of allegation and report of investigation (including the statements of witnesses, if any, recorded and copies of documents if any, intended to be used against him) in cases where allegations have been investigated and he shall be called upon to submit, in writing, his explanation and defence: Provided that the Director-General may withhold disclosure of such report or portion thereof if, in his opinion, its disclosure is not in the interest of the Security of the State. (3) In the event of the explanation of the Officer being considered unsatisfactory by the Director- General, or when so directed by the Central Government, the case shall be submitted to the recommendation of the Director-General as to the termination of the Officer's service in the manner specified in sub-rule (4) Regular Second Appeal No.532 of 1986 (O&M) : 13 : (4) When submitting a case to Central Government under the provisions of sub-rule (2) or sub-rule (3), the Director-General shall make his recommendation whether the Officer's service should be terminated, and if so, whether the officer should be- (a) dismissed from the service; or (b) removed from the service; or (c ) retired from the service; or (d) called upon to resign; (5) The Central Government, after considering the reports and the officer's defence, recommendation of the Director-General, may remove or dismiss the officer with or without pension or retire or get his resignation from service, and on his refusing to do so, the officer may be compulsorily retired or removed from the service with pension or gratuity, if any, admissible to him.” It may be noticeable that power to terminate the services of an Officer by the Central Government under Section 10 could be after following the procedure prescribed under Rule 20 of the Rules.

Thus, there is a clear link established between Section 10 and the procedure required to be followed under Rule 20 which would be a mandatory requirement. Prior to amendments, there was a link between Section 11 of the Act and Rule 20 of the Rules. Earlier Rule 21 made a provision for procedure before Enquiry Officer, whereas amended Rule 21 introduced w.e.f 29.5.1990 has altogether been Regular Second Appeal No.532 of 1986 (O&M) : 14 : differently worded to make a provision for termination of services of the officers by the Central Government on the grounds other than misconduct. Rule 21 of the Rules is as under:- “21. Termination of service of officers by the Central Government on grounds other than misconduct.- (1) When the Director-General is satisfied that an officer is unsuitable to be retained in service, the officer- (a) shall be so informed; (b) shall be furnished with particulars of all matters adverse to him; and (c)shall be called upon to urge any reasons he may wish to put forward in favour of his retention in the service: Provided that clauses (a), (b) and (c) shall not apply, if the Central Government is satisfied that, for reasons to be recorded by it in writing, it is not expedient or reasonably practicable to comply with the provisions thereof: Provided further that the Director-General may not furnish to the officer any matter adverse to him, if in his opinion, it is not in the interest of the security of the State to do so.

(2) In the event of the explanation being considered by the Director-General unsatisfactory, the matter shall be submitted to the Central Government for orders, together with the officer's explanation and the recommendation of the Director-General. (3) The Central Government after considering the Regular Second Appeal No.532 of 1986 (O&M) : 15 : reports, the explanation, if any, of the officer and the recommendation of the Director-General may call upon the officer to retire or resign and on his refusing to do so the officer may be compulsorily retired from the service with pension and gratuity if any, admissible to him.” Earlier Rule 22, as already noticed, related to imposition of penalties whereas the present Rule 22 now makes a provision for dismissal or removal of person other than officer on account of misconduct. Rule 23 continues to remain as was originally worded and reads as under:- “23.

Dismissal or removal by Central Government.- Where the Central Government is satisfied, for reasons to be recorded in writing that- (i) it is not reasonably practicable to follow the procedure laid down in the said rules, or (ii)it is not expedient, in the interests of the security of the State, to follow such procedure, it may order the dismissal, or removal from the Force of a person subject to the Act without following the procedure laid down in rules 20 and 21.” This Rule makes a provision when there is a move to dismiss or remove a person without following the procedure as was or is prescribed under Rules 20 and 21. There was no provision earlier made for termination of service of an employee upon his conviction by a criminal Court. A new provision in the form of Rule 23-A has been introduced w.e.f. 1.3.1983 to provide for termination Regular Second Appeal No.532 of 1986 (O&M) : 16 : of service on conviction on a criminal charge.

This Rule reads as under:-

23A. Termination of service on conviction on a criminal charge.- When a person subject to the Act is convicted of a civil offence the competent authority may dismiss or remove him from service without holding any inquiry or issuing a show cause notice.

Rule 24 regarding retirement of subordinate officer and enrolled persons and Rule 25 regarding retirement of subordinate officers and enrolled persons on the ground of physical unfitness have almost been retained in the same form as were enacted initially in the year 1969. Rule 26 relating to retirement of enrolled person on the ground of unsuitability has basically been retained as was originally enacted except for few changes in the exceptions which were there in the Rule, which appears to have been enlarged in its scope. The original as well as amended Rule 26 respectively are as under:- “26. Retirement of enrolled persons on grounds of unsuitability.- Where a Commandant is satisfied that an enrolled person is unsuitable to be retained in the Force, the Commandant may, after giving such enrolled person an opportunity of showing cause (except where he consider it to be impracticable or in-expedient in the interest of security of the State to give such opportunity), retire such person from the Force.

1.3.1983. Amended Rule 20 provides for procedure for termination of service on the ground of misconduct and also those cases where conviction by a criminal court and Security Force Court is recorded. This provision has to be read with enabling provision of Rule 23-A now made for removing a person subject to Act on account of his conviction by a criminal Court. In such cases, necessity of issuing show cause notice is dispensed with. The power to dismiss or remove a person subject to the Act, however, could be exercised only under those provisions of the Act and the rule, which were applicable at the time when the Regular Second Appeal No.532 of 1986 (O&M) : 18 : impugned orders were passed. The amended provision in the Act and the Rules, thus, would have no applicability as these were not in existence, when the impugned orders were passed. The validity of the impugned order is required to be tested on the basis of the then prevalent provisions under the BSF Act and the Rules and not on the basis of amended rules, which have subsequently been introduced or substituted.

There may be a need to make passing reference to the procedure for holding trial by Security Force Court under the Act. Sections 14 to 47 of the Act create various offences for which a person subject to the Act can be put to trial by various forms of Security Force Court. The provisions are also made under the Act to try person accused of offences by convening a Security Force Court. As per the amended Rules 23-A and Rule 20, a conviction by a criminal court or by Security Force Court can be a ground to terminate the services. Since, these provisions are not to apply in this case, the issue in this case will have to be tested on the basis of the rules in existence when the order was passed. The dismissal or removal on the basis of conviction or for contracting second marriage, if otherwise permissible, could be ordered under the provisions of Section 10 or 11 of the Act. If that is held permissible, then procedure as given in unamended Rules referred to above was required to be followed.

If one is to consider the conviction as a ground to order removal, then one may have to construe that removal was on account of misconduct on the part of the appellant. This may be so as the order of conviction is now dealt with under Rule 20, prescribing procedure for Regular Second Appeal No.532 of 1986 (O&M) : 19 : removal on the account of misconduct. If one is to take an act of second marriage, then it could be said that by contracting second marriage, the appellant had rendered himself ineligible or disqualified for enrolment and, thus, unsuitable for further retention in service. In that situation, the provisions of Rule 26 may get attracted, which provides that where a Commandant is satisfied that enrolled person is unsuitable to be retained in the Force, then he may, after giving such enrolled person an opportunity of showing cause (except where he considered it to be impracticable to give such opportunity) retire the said enrolled person from the Force.

The respondents have not set up a case that the appellant was not required to be served any show cause notice or that it was considered impracticable to give him an opportunity as are laid down in Rule 26, referred to above. It is also to be seen whether the punitive order of removing the appellant from service could made if he was found unsuitable being ineligible for enrollment or recruitment or he was required to be retired. As already noticed, when the Act was initially enacted, no provision was made for dismissing or removing a person from service on the ground of his conviction by a Court for criminal offence. This provision subsequently has been introduced. Since this provision was not in existence, when the impugned order was passed, obviously this can not be taken into consideration as it would then have a retrospective operation, which can not be permitted. The validity of the impugned order is, thus, required to be tested on the basis of the provisions that were prevailing at the time when the impugned order was passed.

Regular Second Appeal No.532 of 1986 (O&M) : 20 : Reference in detail has been made to the provisions of the Act and the Rules. Under Section 10 of the Act, the Central Government could order the dismissal or removal of the appellant from the service but this was subject to the provisions of the Act. This provision obviously has not been invoked as order of dismissal has been passed by Commandant. The order of dismissal, thus, could have the source of its power or authority only under Section 11 of the Act. Except for Director General, Inspector General or Deputy Inspector General of the Force, no other officer could exercise the power and authority to pass an order under Section 11 of the Act. Though Section 11(2) of the Act appears to be an embargo on the power of any other officer to pass an order of dismissal or removal by not providing the enabling power to any officer not below the rank of Deputy Inspector General of Police but the Commandant indeed can exercise such powers being the prescribed officer.

The section leaves these powers with the officer, who is so prescribed. As per Rule 177 of the Rules, Commandant is prescribed as an Officer who can dismiss or remove from service any person under his command other than officer or subordinate officer. Even if the Commandant was to exercise power under Section 11 of the Act, such exercise of powers was subject to the provisions of the Act and the Rules as given in Section 11 (4) of the Act. Admittedly, the Commandant had not invoked the enabling provisions of Section 11 to order the removal. Though a show cause notice was issued to the appellant but provisions of Rule 7 of the Rules were invoked to pass the order of dismissal. Rule 7 of the Rules is not a source of power with the Commandant to remove Regular Second Appeal No.532 of 1986 (O&M) : 21 : or dismiss a person from service. As already noticed, this Rule only provides for ineligibility and/or disqualification for enrollment.

The dismissal on the ground of contracting second marriage or for conviction of a criminal offence, apparently was not separately provided under the provisions of the Act till a provision in this regard was made in the form of Rule 23-A w.e.f. 1 March, 1983. As already noted, this provision would not be applicable as not being in existence on the date the order was passed. This order, thus, could only be justifiably sustained under Section 11 of the Act. This can not be taken to be a case where only wrong mention is made to the provisions applicable for invoking this power. The Commandant while passing the order has not exercised his power under the relevant enabling provision and was misconceived in directing removal of the appellant by invoking the provisions of Rule 7 of the Rules. The appellant could either be said to have become unsuitable after contacting second marriage or he could be accused of misconduct on the ground of his conviction.

In the event of he being found unsuitable, the appellant could be ordered to be retired by invoking the provisions of Rule 26 of the Rules. Even if that was to be considered, the position that would emerge is that the requisite procedure was to be followed while passing the order. Rule 26 clearly provides giving an opportunity of showing cause before passing any order under this rule is concerned. Only the order of retirement could be passed under this rule and not of removal or dismissal. The conviction appears to have not been made the basis of passing impugned order. While distinguishing the ratio of law laid Regular Second Appeal No.532 of 1986 (O&M) : 22 : down in Gangayya Veerayya Kashlnath Vs. Commissioner, Huvli and another, 1974(2) SLR 157, cited on behalf of the appellant, it is observed by the lower Appellate Court that “this authority is applicable only in those cases where dismissal order is based solely upon the conviction of a person in a criminal case who has been released by giving benefit of Probation of Offenders Act.

However, in the present case show cause notice is issued to the plaintiff which has been proved on the file as Ex.D2. In this show cause notice, it was specifically made known to the plaintiff that since he had another wife living, which is against the conduct rules of B.S.F.Act, so it was proposed to dismiss him from service. The show cause notice issued to the appellant is as under:-

Whereas you have been convicted by a court of law for having two living wives and awarded punishment of one year's civil imprisonment with a fine of Rs. 1000/-. Smt. Gurmet Kaur is your second illegal wife. Since having another illegal wife is against the Conduct Rules as well as BSF Act and Rules. I, therefore, propose to dismiss you from service. If you have anything to urge in your defence or against the proposed action, you may do so before 05 Sep 82. In case no reply is received from you in this regard by that date it will be presumed that you have nothing to say.

The reply filed to this cause notice is Ex.D3 and it was replied that he had no other wife and he is law abiding soldier.

After considering this reply the order of dismissal Ex.D4 was passed. As such, it cannot be said that the order of removal of the plaintiff was Regular Second Appeal No.532 of 1986 (O&M) : 23 : passed merely because he was convicted by criminal court, rather he was given opportunity to explain his conduct in contracting second marriage and when the reply and explanation given by him was not found to be satisfactory only then he was dismissed from service. It is possible to say that the appellant was not dismissed on the basis of his conviction. Reason why this course was not adopted could be because of lack of enabling provision to exercise such powers. That being the factual position, it is now to be seen if the punitive order of removing the appellant from service could be passed or not. The suit filed by the appellant was dismissed only on the ground that the show cause notice issued to him was not on the basis of his conviction but on the ground that he had contracted a second marriage and, thus, had become ineligible as per Rule 7.

That being the basis for removing the appellant from service, he was removed by way of punishment. If the Commandant was intending to dismiss or remove the appellant, the action was required to be taken under Section 11 of the Act. This mode was not adopted. The source of power to dismiss or remove was wrongly invoked and to an extent, the appellant was taken by surprise. Having become ineligible or unsuitable for enrollment or appointment and, thus, unsuitable for further retention, the appellant could be retired under Section 26 of the Act. The order of removal as passed could legally have been made only under Section 11 of the Act, which was never invoked. The impugned order, thus, would suffer from infirmity and may not be sustainable. The issue is further compounded as the appellant was subsequently released on probation. Mr.Sethi, learned Senior counsel would be justified in making reference to the law laid down in Shankar Dass Vs. Union of India and another, AIR 1985 Supreme Regular Second Appeal No.532 of 1986 (O&M) : 24 : Court 772 and The Divisional Personnel Officer Southern Railway and another Vs. T.R.Challapan, AIR 1975 Supreme Court