Regular Second Appeal No.532 of 1986 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: March 10, 2010 Didar Singh ...Appellant VERSUS Union of India ...Respondent CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.M.J.S.Sethi, Senior Advocate with Mr.Amit Singh, Advocate, for the appellant. Mr.Hemen Aggarwal, Advocate, Addl.Central Government Standing Counsel, for Union of India. ***** RANJIT SINGH, J. The issue involved in this case would relate to powers of the authorities under the B.S.F.Act (for short “the Act”) to remove an employee from service on the basis of his conviction for an offence by criminal court. Another incidental issue would arise in regard to the effect of release of an employee on probation subsequent to the Regular Second Appeal No.532 of 1986 (O&M) : 2 : passing of the order of conviction and the effect thereof on the order of removal in this regard. Yet another issue, which may also arise, is whether respondent-authorities were justified in removing the appellant by invoking the provisions which apparently may not apply or was not an enabling provision to pass an order of dismissal. The facts which would give rise to the issues, as noted above, are that the appellant-plaintiff had joined the B.S.F.service in 1971. He had nearly eleven years service to his credit, when he was dismissed on 6.9.1982 on the ground that he had contacted second marriage while his first wife was living. The appellant would say that there was no cause of complaint against him and he had performed his duties with utmost honesty. As averred in the suit, the appellant comes from Mazbi Sikh family and was married at very young age. He would say that his wife never came to live with him. As per the appellant, his parents decided to arrange another marriage for him. His first wife filed a complaint with the police leading to his conviction for an offence under Section 494 IPC on 20.4.1982. The appellant appealed against this order before the Court of Sessions and ultimately before this court, when this Court while maintaining the conviction, had given benefit of Probation of Offenders Act and released him on probation on 11.1.1983. The grievance of the appellant, thus, is that his Commandant totally ignored the provisions of Section 12 of the Probation of Offeners Act and removed him from service without holding any formal enquiry or without issuing any show cause notice. The appellant would term this order to be arbitrary, illegal and void. Submission is that the effect of the order of his release on probation Regular Second Appeal No.532 of 1986 (O&M) : 3 : was required to be considered even though the order of his removal was passed prior to his release on probation. The appellant accordingly filed a suit after having served a notice under Section 80 CPC impugning the order of his removal from service, which, according to him, was served to him at his house at Amritsar. In response to a notice, the defendant-Union of India put in appearance and raised an objection regarding the jurisdiction of the civil court to entertain the suit. Plea was that the court at Amritsar would not have any territorial jurisdiction to try the suit. The suit was also termed as bad under Order 2 Rule 2 CPC. While submitting reply on merits, it was stated that one Gurmit Kaur was legally married wife of appellant Ex-HC. Intimation was received that appellant was convicted by Judicial Magistrate under Section 494 IPC. It was averred that appellant was ineligible for service in the B.S.F. as he had more than one living wife. He was accordingly served with show cause notice on 18.8.1982. Finding his reply to the show cause notice un-satisfactory, the appellant was removed from service. It is further averred that there is no cause of action with the appellant as he was removed from service under Rule 7 of the B.S.F.Rules. It is stated that the order of removal was served to him at Mamdot and so the civil court at Amritsar would have no jurisdiction to try this suit. On the basis of pleadings, the suit was tried on the following issues:- “1. Whether order dt.6.9.82 passed by Commandant 44th Battalion BSF is illegal & void? OPP 2. Whether civil court at Amritsar have territorial Regular Second Appeal No.532 of 1986 (O&M) : 4 : jurisdiction to try this suit? OPP 3. Whether plaintiff is entitled to declaration prayed for? OPP 4. Relief. The trial Court, however, held that the order passed by the Commandant was legal and valid and accordingly decided issue No.1 against the appellant. Issue No.2 regarding the jurisdiction of the Court at Amritsar was decided in favour of the appellant and ultimately the suit was dismissed on 25.9.1984. The appellant remained successful in his appeal filed before the first Appellate Court and accordingly had filed this Regular Second Appeal. The factual position does not appear to be much in dispute. As is noticed by the first Appellate Court, it was not disputed before the said Court that the appellant was married twice. The first Appellate Court accordingly viewed that there was no need to hold a regular enquiry, when the conviction of the appellant was recorded under Section 494 IPC. It is also observed by the first Appellate Court that no rule could be referred before the court, which provided that the regular enquiry was required to be held or any other formality was required to be completed in this regard. 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, and (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) his acceptance or denial of the allegations; (b) 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. 26. Retirement of enrolled persons on grounds of Regular Second Appeal No.532 of 1986 (O&M) : 17 : unsuitability.- Where a Commandant is satisfied that an enrolled person is unsuitable to