CWP No.3239 of 1995 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.3239 of 1995 Date of decision : 17-2-2009 Mohd. Aley Ahmed ....Petitioner VERSUS The Union of India and others ....Respondents CORAM:- HON'BLE MR. JUSTICE AJAI LAMBA Present: None for the petitioner. Mr. Anil Rathee, Central Government Standing Counsel, for the respondents. AJAI LAMBA, J. This Civil Writ Petition under Articles 226/227 of the Constitution of India has been filed for issuance of a writ in the nature of certiorari for quashing order dated 25-2-1992 (Annexure P-7) under which the request for grant of pension to the petitioner has been denied. Prayer has also been made for quashing order dated 7-4-1993 (Annexure P-11) vide which the representation of the petitioner filed against the order (Annexure P-7) has been dismissed. From the pleadings, it transpires that the petitioner joined as a Constable/Radio Mechanic in Border Security Force on 21-1-1971. The petitioner was promoted as Head Constable / Radio Mechanic on 7-7-1973 and further as Assistant Sub Inspector / Radio CWP No.3239 of 1995 -2- Mechanic on 25-2-1982. During the period, when the impugned orders were passed, the petitioner was posted in DAV College, Hoshiarpur, in the year 1991. The petitioner proceeded on 40 days Earned Leave w.e.f. 30-8-1991 and was to resume duty on 14-10-1991. Leave was sanctioned, as is evident from letter (Annexure P-1). The petitioner as per pleadings in the petition applied for extension of leave for another 60 days vide letter dated 1-10-1991, on the ground that there was some property dispute pending in his village and also that the petitioner was ill and, therefore, was not in a position to join in time. The application has been placed on record as Annexure P-2. It seems that the request for extension of leave was rejected vide letter dated 16-10-1991(Annexure P-3). It has been further pleaded that the petitioner again applied for further extension of leave w.e.f. 15-12-1991 to 14-3-1992 vide application dated 12-12-1991 (Annexure P-4). The extension was applied on the ground that the petitioner was ill and was in a serious condition and was not even in a position to move. The petitioner was again directed to join duty vide communication dated 21-12-1991 (Annexure P-5). It is the case of the petitioner that he applied for further extension of leave from 15-3-1992 to 16-6-1992 and, thereafter, upto 12-7-1992. In Para-7 of the petition, it has been stated that on 12-7-1992, the petitioner was declared medically fit and he reported for duty on 13-7-1992. The petitioner, however, was informed that he had been dismissed from service w.e.f. 28-1-1992 vide letter dated 25-2-1992 (Annexure P-7). It is the case of the petitioner that he did not receive any order of CWP No.3239 of 1995 -3- dismissal. The petitioner preferred an appeal (Annexure P-8) which has been dismissed. The respondents vide Memorandum dated 30-12-1992 (Annexure P-9) asked the petitioner to furnish the copy of certificate of illness dated 12-12-1991 granted by the attending doctor. The petitioner claims that the certificate was furnished with Annexure P-10. The appeal, however, was dismissed vide impugned order (Annexure P-11). The petitioner filed a writ petition in the High Court of Judicature at Patna which, however, for lack of territorial jurisdiction, was not entertained. Hence the present petition. Before proceeding further, it needs to be clarified that there is some confusion in regard to the prayer made by the petitioner. The subject mentioned in letter dated 25-2-1992 (Annexure P-7) is "Request for pension". The appeal Annexure P-8 filed by the petitioner, however, prays for declaring the order of dismissal as invalid, although Annexure P-7 is in reference to application of the petitioner dated 30-1-1992. However, no such letter / application has been placed on record. Be that as it may, the issue before this Court is whether the action of the respondents of dismissing the petitioner from service is required to be interfered with or not in writ jurisdiction while judicially reviewing the orders passed by the respondents. Learned counsel appearing for the respondents states that the conduct of the petitioner has been such that the decision itself is not required to be interfered with. There is no infirmity in the decision making process. It has been pointed out that (in the year 1991) the CWP No.3239 of 1995 -4- petitioner was posted in Punjab, which was terrorist affected. The petitioner was a Radio Operator, and, therefore, his services were pivotal in nature. The petitioner was serving a disciplined force i.e. Border Security Force. Learned counsel has drawn the attention of the Court towards Annexures R-1 to R-8 to establish that due process of law has been followed. Learned counsel for the respondents has relied upon the judgment rendered by the Hon'ble Supreme Court in Union of India and Others Vs. Ram Phal, 1996 (2) SLR 297. Learned counsel has argued that the respondents were required to issue a show cause notice and give opportunity of hearing which has been done in the case of the petitioner and, therefore, there is no infirmity in the decision making process. Learned counsel appearing for the respondents has also relied upon a judgment of the Hon'ble Supreme Court in Sri. Gouranga Chakraborty Vs. State of Tripura and another, AIR 1989 Supreme Court 1321, to contend that the petitioner was given an opportunity to submit his explanation against the proposed punishment of dismissal from service for his absence from duty without leave or over-staying leave without sufficient cause. The petitioner did not avail of this opportunity. Thus, the principles of nature justice were not followed. I have considered the contentions of the learned counsel and have gone through the pleadings. On a collective reading of facts, it becomes evident that the petitioner was on Earned Leave from 30-8-1991 and was CWP No.3239 of 1995 -5- required to report for duty at Hoshiarpur on 14-10-1991. An application dated 4-10-1991 was received which has been placed on record with the written statement as Annexure R-1 with a prayer for extension of leave. Following are the contents of the application:- "Most humbly and respectfully and beg to state that my wife is on death bed and her operation will be held on near future under form situation and circumstances and requested your honour to kindly grant my application for forty five (45) days EL as extension being my helplessness, for this act of kindness shall remain grateful to you." The above extracted portion indicates that extension of leave was sought on the ground that wife of the petitioner was on death bed and was required to be operated upon. It has been brought out by the learned counsel for the respondents that no document in support of the prayer for extension of leave was filed. Vide letter dated 16-10-1991 (Annexure R-2), it was conveyed to the petitioner that no extension can be granted and the petitioner was required to report to the Head Quarter failing which necessary disciplinary action will be taken under the Border Security Force Act, 1968 and the rules framed thereunder. Letter dated 26-10-1991 (Annexure R-3) is another communication to the petitioner whereby the petitioner was again asked to join duty forthwith. Vide order dated 27-11-1991 (Annexure R-4), one man Court of Inquiry was appointed to find out the reasons of overstaying, beyond sanctioned period of leave, by the petitioner. Annexure R-5 dated 12-12-1991 is the report CWP No.3239 of 1995 -6- submitted by the Court of Inquiry. The opinion recorded by the Court of Inquiry is in the following terms:- " After going through the statement of witnesses produced before the Court and checking the relevant records available to the Court, the Court is of the opinion that No.710015268 ASI/RM/ Md Ahmed of 115 Bn BSF is absent from leave w.e.f. 14-10-1991 (AN) without any permission from the competent authority. The SO has not joined duty till date and he should be declared deserter as provided under BSF Act and Rules, 1968. An amount of Rs.1643.39 be recovered from his pay and allowances as the cost of deficient Government clothing and equipment items and deposited in the Government treasury." It seems that the report was placed before the Commandant 115 Battalion, BSF, who agreed with report on 20-12-1991. Vide Communication dated 20-12-1991 (Annexure R-6), the petitioner was conveyed that he had been declared as Deserter. Vide show cause notice dated 25-12-1991 (Annexure R-7), it was recommended that the services of the petitioner be terminated by way of dismissal. The petitioner was asked to show cause why the proposed action be not taken. The petitioner was required to file his response by 10-1-1992. Vide order dated 28-1-1992 (Annexure R-8), because no response was received to the show cause notice (Annexure R-7), the petitioner has been dismissed from service w.e.f. 28-1-1992. On a collective consideration of the facts, it becomes CWP No.3239 of 1995 -7- evident that the petitioner did not join duty/report at any point in time even after 14-10-1991 i.e. the date on which his sanctioned leave expired till, after passing of impugned order dated 28-1-1992 (Annexure R-8). I have also considered the fact that the petitioner has mis-stated facts before the authorities in so much as vide letter (Annexure P-2) extension of leave was applied for on the pretext that there was a land dispute pending and the petitioner was ill and, therefore, he was not in a position to join duties. Vide letter dated 12-12-1991 (Annexure P-4), again, it was projected that the petitioner was on death bed suffering from illness and not in a position to move. As against these circumstances, Annexure R-1 is an application for extension of leave received by the authorities on 4-10-1991 wherein the grounds given are absolutely different viz. wife of the petitioner was on death bed and her surgery was scheduled. The specific case of the respondents is that application for extension of leave (Annexure P-2 and P-4), to which reference has been made hereinabove, were never received. The case of the respondents further is that the medical certificate to support the case of the petitioner for extension of leave was not received. The medical certificate attached with the representation was not given by a Government Medical Officer / Civil Hospital. The same, in any case, should have been sent along with the application for extension of leave, however, it was not done. I am of the opinion that the case, as set up by the respondents, is covered by judgment rendered in the case of Sri. CWP No.3239 of 1995 -8- Gouranga Chakraborty (Supra). Exact reference to Para No.24 of the judgment is required which reads as under:- "We have scrutinised the relevant provisions of the BSF Act as well as the BSF Rules framed thereunder and we have no hesitation to hold that the power under S.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 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. The provision of sub-sec. (4) of S.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 S.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 CWP No.3239 of 1995 -9- 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. In the premises aforesaid, we do not find any merit in this appeal which is accordingly dismissed with costs. The judgment and decree of the High Court in S.A. No.22 of 1981 is confirmed." In letter dated 16-10-1991 (Annexure R-2), a detailed reference to the facts has been given, which makes it evident that the petitioner was asked to report for duty while conveying that extension of leave is not being granted. Again, the petitioner was informed to the same effect vide communication dated 26-10-1991 (Annexure R-3). A Court of Inquiry was ordered. However, the petitioner did not join the proceedings. Findings have been reproduced hereinabove, which are based on evidence that came before the Court of Inquiry. The factum of not reporting for duty despite extension of leave being not granted is admitted in the petition itself, in so much as it is the case of the petitioner that he went to join duties on 13-7-1992 (Para 7 of the Writ Petition). It is, therefore, clear that the petitioner remained absent without CWP No.3239 of 1995 -10- sanctioned leave from 14-10-1991 onwards till after passing of impugned orders. The petitioner had been dismissed from service after giving due opportunity of hearing to the petitioner which, however, was not availed. It is evident that the petitioner has taken a false stand for extension of leave in so much as letter Annexure R-1 addressed by the petitioner assigns different reasons for extension of leave as against letters Annexures P-2 and P-4. Since, reasonable opportunity of hearing has been given to the petitioner, there is no infirmity in the decision making process. The decision itself is based on relevant material. It has to be taken into account that Border Security Force is a disciplined force and at the point in time when the petitioner remained absent from duty, Punjab was in turmoil on account of terrorism. In these circumstances, the petitioner had been declared as a deserter for judicious and reasonable reasons. Thus, no interference in the writ jurisdiction is called for. Considering the conduct of the petitioner noticed hereinabove, the penalty imposed is not disproportionate to his misconduct. The petition is, accordingly, dismissed. (AJAI LAMBA) 17-2-2009 JUDGE manju