PRABHU SINGH v. UOI) DATE OF ORDER & Ors.

13.02.2007. HON'BLE MR. GOVIND MATHUR, J. Mr.P.S. Bhati for the petitioner/s. Mr.Vineet Mathur for the respondent/s. By this petition for writ, a challenge is given to the order dated 19.01.2004 passed by the Commandant, 141 Battalion, Border Security Force, dismissing the petitioner from service while exercising powers under Section 11(2) of the Border Security Act, 1968 (for short “the Act of 1968”) read with Rule 22 of the Border Security Force Rules, 1969 (for short “the Rules of 1965”).

In brief, facts of the case are that the petitioner was enrolled as a member of Border Security Force on 21.10.1991. He proceeded on leave on 19.04.2003 for a period of 45 days i.e. up to 11.05.2003. After expiry of the leave granted , the petitioner did not resume duties, therefore, by the communications dated 03.09.03, 09.09.03 and 17.09.03, the petitioner was instructed to join duties and was warned for initiating disciplinary action in the event of failure to follow the instruction. Despite the communications above, the petitioner did not choose to join duties, accordingly an enquiry was 2 conducted in accordance with Section 62 of the Act of 1968 and a notice to show cause in accordance with Rule 22 of the Rules of 1959 conveying tentative proposed action i.e. of dismissal was issued to the petitioner and was asked to submit his explanation. No explanation thereof was given, thus, the Commandant passed the order impugned dated 19.01.2004 dismissing the petitioner from service without pensionary benefits and also by treating the term of absence as the period “Dies Non”. While giving challenge to the oder dated 19.01.2004, it is contended by counsel for the petitioner that the respondents imposed a penalty of dismissal without adhering the regular procedure prescribed to do so and as such the oder impugned is void ab initio. I do not find any force in the contention so raised as under Rule 22 of the Rules of 1969, an action can be taken by the competent authority by adopting summary procedure. A Division Bench of this Court while dealing with the same provision in the case of Union of India & ors. vs. Umesh Kumar Malik (DBCSA No.1033/1997) by the judgment dated

08.12.2005 held as under: 3

Therefore, it must be taken that the procedure required to be followed for dismissal or removal of person other than the officer for the alleged misconduct as per Rule 22. Rule 22 which has been reproduced above clearly goes to indicate that the procedure prescribed under Sub-Rule (2) require that when after considering the reports on an Officer's misconduct, the competent authority is satisfied that the trial of the Officer by a Security Force Court is inexpedient of impracticable, but is of the opinion, that further retention of the said officer in the service is undesirable, it shall inform him that he is satisfied with undesirable service and if required he is called upon to submit in writing, his explanation and defence. The competent authority after considering this defence, if any, may dismiss or remove from service with or without pension.

In view of the provisions of Rule 22 of the Rules of 1959 as interpreted by Division Bench of this Court in the case of Union of India & ors. vs. Umesh Kumar Malik (supra), it is manifest that the competent authority was required to give only a show cause notice of proposed action i.e. of dismissal/removal as the case may be on getting satisfied that the trial is impracticable. The petitioner in response to show cause even did not care to reply, that clearly established that the trial was inexpedient. As such, there was no need of holding a regular disciplinary proceedings before dismissing the petitioner from service. 4 It is further contended by counsel for the petitioner that it was within the discretion of the authority competent to dismiss/remove the petitioner from service with or without pension for no just and valid reason. The pension has been denied to the petitioner though he has served Force for a period of good 13 years. From perusal of the order impugned, it is apparent that the authority competent has not given any reason for denying pension to the petitioner. Accordingly, while affirming the order impugned to the extent it pertains to the dismissal of the petitioner, the respondents are directed to reconsider the case of the petitioner for grant of pension in accordance with law. Such consideration shall be made within a period of six months from today. No order to cost. (GOVIND MATHUR)J. Anil/