Full Judgment Text
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PETITIONER:
GOURANGA CHAKRABORTY
Vs.
RESPONDENT:
STATE OF TRIPURA AND ANR.
DATE OF JUDGMENT31/03/1989
BENCH:
RAY, B.C. (J)
BENCH:
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.
HEADNOTE:
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 re-
ceived an order of the Commandant informing him that he had
been dismissed from service. On January 10, 1972, the appel-
lant 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 decla-
ration 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
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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 serv-
ice, 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 opportu-
nity 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-
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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]
JUDGMENT:
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
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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 thereunder.
The Munsiff held that the plaintiff was given reasonable
opportunity before the Commandant dismissed him from serv-
ice. 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 fol-
lowed 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
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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
InspectorGeneral 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,
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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
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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 thereunder 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 thereunder. 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
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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 independ-
ent 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 thereunder and we have
no hesitation to hold that the power under Section 11(2) of
the Act empowering the Prescribed Authority i.e. the Comman-
dant 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 suffi-
cient cause and holding him as undesirable cannot be exer-
cised 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 specifi-
cally 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 suffi-
cient 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 dis-
missed.
283
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