Gouranga
Chakraborty Vs. State of Tripura & Anr [1989] INSC 118 (31 March 1989)
Ray,
B.C. (J) 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.
HEAD NOTE:
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 received an order of the
Commandant informing him that he had been dismissed from service. On January 10, 1972, the appellant 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 declaration 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 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 service, 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 opportunity 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- 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]
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 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
there under.
The Munsiff
held that the plaintiff was given reasonable opportunity before the Commandant
dismissed him from service. 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 followed 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 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 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
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, 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 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 there under 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 there under.
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 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 independent 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 there under and we have no hesitation to hold 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 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 sufficient cause and holding him as undesirable cannot be exercised
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
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
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 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. 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 dismissed.
Back