Jammu, Nov 27: In SWP No. 2350/2010 titled 1. Sukhchain Singh Vs 1. Union of India, through Ministry of Home Directorate of Border Security Force, 10 CGO Complex, Lodhi Road, New Delhi. 2. The Inspector General, Punjab Frontier, Border Security Force, Jalandhar & ors after hearing HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE ordered as:
1) After the petitioner was found guilty by the Summary Security Force Court vide order dated 09.04.2003 of the charge under Section 19(a) of the Border Security Force Act, 1968, he was sentenced with the dismissal from service and the order dated 09.04.2003 to that effect was issued by the respondent No. 3.
2) The petitioner had earlier filed a writ petition before the High Court of Punjab and Haryana challenging his dismissal by the respondents but the same was withdrawn vide order dated 06.09.2010 with the liberty to file a petition before the court of competent jurisdiction.
Thereafter, the petitioner has filed the present petition for quashing of the charge sheet dated 06.04.2003 and the order dated 09.04.2003, whereby the petitioner has been dismissed from service by the respondent No. 3.
3) It is stated that the petitioner was charge-sheeted for absenting from duty for a period 09 days without leave/authorization and after trial, the petitioner was dismissed from service on 09.04.2003 by a non-speaking order.
The contention raised by the petitioner is that he could not attend his duties because he was sick and the intimation in respect of illness of the petitioner was sent to the DIG, BSF Company, Udhampur by his father and it was because of his illness that the petitioner absented himself and could not join the training.
It is further stated that the respondents have dismissed the petitioner from service without taking into consideration that the absence of the petitioner was because of the ill health and the respondents without there being any material held the petitioner guilty and punished him.
4) Counter affidavit stands filed by the respondents, stating therein that the petitioner was enrolled in the BSF as a Constable (GD) on 07.11.2002 and reported at STC BSF, Udhampur on 21.11.2002 for undergoing basic recruit training at STC, BSF Kharkan Camp. On 02.02.2003 while undergoing training at STC BSF, Udhampur, the petitioner absented himself without any leave with effect from 02.02.2003 (FN) to 05.02.2003 (FN). The petitioner reported on 05th February, 2003 at STC, BSF Udhampur after remaining absent for 03 days.
The petitioner was produced before the Officiating Commandant STC BSF, Udhampur, as he had committed an offence under Section 19(a) of BSF Act, 1968. He was heard by the Officiating Commandant under Rule 45 of the BSF Rules, 1969 and Section 53 of the BSF Act, 1968 and was found guilty of the charge. The petitioner was awarded 7 days rigorous imprisonment in Force custody. On 21.02.2003, the petitioner again absented himself without leave from STC, BSF Camp, Udhampur and he was asked to report back forthwith vide communication dated 22nd February, 2003.
The petitioner reported back STC, BSF Camp Udhampur on his own on 2 nd March 2003 (FN) after remaining absent from the Centre for 09 days. The petitioner was again produced before ADIG Commandant STC, BSF, Udhampur for the offence committed by him under Section 19(a) of the BSF Act, 1968.
After giving a patient hearing under Rule 45 of the BSF Rules, 1969 and that being the second offence of the same nature committed by the petitioner within a period of three months of training, the ADIG STC, BSF, Udhampur ordered preparation of record of evidence vide communication dated 06.03.2003.
5) While the preparation of record of evidence was pending, the petitioner again deserted from STC, BSF Camp Udhampur without permission/leave from his superiors on 09.03.2003 to avoid the disciplinary action and as such, he committed the third consecutive offence punishable under Section 19(a) of the BSF Act.
The petitioner was again asked to join the training vide communication dated 11.03.2003 and in response, the father of the petitioner sent a letter along with medical record, which was received by the respondents on 13.03.2003.
As per the intimation, the 4 SWP No. 2350/2010 petitioner was ill and admitted in Civil Hospital, Taran Taran. The father of the petitioner was intimated vide communication dated 15.03.2003 that his son had absented himself without leave from the centre and he was requested to send his son to the Centre for treatment in STC BSF, Hospital Udhampur.
The petitioner after absenting himself for 21 days reported back voluntarily on 31.03.2003. On his arrival, the record of evidence was completed by the Recording Officer.
On completion of the record of evidence, it was decided by the competent authority to dispose of the case by holding a Summary Security Force Court (SSFC) trial against the petitioner for absenting himself without leave with effect from 21.02.2003 (FN) to 02.03.2003 (FN) i.e. for nine days as per the provisions of Rule 51(iii) of the BSF Rules, 1969.
The petitioner was provided with the copy of record of evidence, charge sheet and other relevant documents for preparation of his defence well in advance.
Accordingly, the trial of the petitioner was conducted by the Summary Security Force Court on 09.04.2003 under Section 19(a) of the BSF Act for absenting himself without leave and the petitioner was held guilty and sentenced with dismissal from service.
The sentence was promulgated to the petitioner on the same day and copy of the promulgation order and dismissal order were handed over to him on 09.04.2003 and the periods of absence without leave from 21.02.2003 to 02.03.2003 (FN), 09 days and from 09.03.2003 (AN) to 31.03.2003 (FN)-21 days (total 30 days) were treated as dies-non for all purposes and the name of the petitioner was struck off from the strength of STC BSF, Udhampur with effect from 09th April, 2003.
Thereafter, the petitioner submitted a representation to the DG, 5 SWP No. 2350/2010 BSF on 14.05.2003 and DG BSF rejected the representation being devoid of any merit vide order dated 01.09.2003.
6) The petitioner has filed the rejoinder, stating therein that no opportunity of being heard was afforded to him by the respondents and the petitioner was dismissed from service in an arbitrary and unjustified manner. It is also stated that the respondents in absence of any material have held the petitioner guilty and punished him without any justification.
7) Mr. Raghubir Singh, learned counsel for the petitioner vehemently argued that the petitioner has been dismissed from service by the respondents without taking into consideration the reasons projected by the petitioner for his absence as the petitioner was ill, therefore, charge sheet and the order impugned are not sustainable in the eye of law. He further argued that the procedure as prescribed under Rule 48 of the BSF Rules, 1969 was not complied with by the Recording Officer while preparing the record of evidence and further that the Summary Security Force proceedings were not conducted in accordance with the procedure prescribed by the BSF Act and Rules made there under.
8) Per contra, Mr. Vishal Sharma, learned DSGI submitted that the petitioner is habitual of remaining absent from duty without any permission/leave and during the period of three months, he absented himself three times and taking into consideration the conduct of the petitioner, the disciplinary proceedings were initiated against him. After the preparation of record of evidence, he was tried by the Summary Security Force Court, where he was found guilty and sentenced with punishment of dismissal from service. Mr. Sharma further submitted that there is no procedural infraction while conducting the proceedings against the petitioner and awarding punishment of dismissal from service.
9) Heard learned counsel for the parties and perused the court file.
10) It needs to be noted that Mr. Vishal Sharma, learned DSGI has expressed his inability to produce the record as the same could not be traced despite best possible efforts.
In view of absence of the record, this Court has to adjudicate the controversy involved in the writ petition on the basis of the material, which is placed on the record, by the parties.
11) A perusal of the writ petition reveals that the petitioner has placed on record communication dated 06.04.2003, whereby the petitioner was intimated that he was to be tried by the Summary Security Force Court and was directed to nominate an officer of STC BSF Udhampur as his friend at the SSFC trial. Besides this communication, the petitioner has placed on record the copy of order dated 09.04.2003 passed by the respondent No. 3 after the petitioner was held guilty of charge under section 19 (a) of the BSF Act 1968 and was sentenced to be dismissed from service.
In the writ petition filed before the Hon’ble High Court of Punjab and Haryana, the petitioner had annexed the typed copy of the charge sheet and order of sentence passed by the Summary Security Force Court.
12) The respondents in turn have placed on record absconding report and communication dated 22nd of February 2003 addressed to the petitioner, whereby the petitioner was asked to report in the Unit immediately.
The respondents have also placed on record the order detailing Shri Nathu Bindra to prepare “record of evidence” and communications issued to the petitioner as well as to his father and order dated 09.04.2003, whereby the petitioner was dismissed from service with effect from 09.04.2003 by the respondent No. 3.
The respondents along with the counter affidavit have also placed on record the order dated 08.02.2003, whereby the petitioner was awarded seven days rigorous imprisonment in Force custody for remaining absent with effect from 02.02.2003 to 05.02.2003. The absconding report, offence report along with hearing on charge and the documents submitted by the father of the petitioner, have been placed on record.
13) Neither the record of the evidence nor the record of Summary Security Force Court proceedings is available before this Court so as to examine the contentions raised by the petitioner. No finding can be returned by this Court without examining the record of evidence as to whether the Rule 48 of the BSF Rules, has been followed by the Recording Officer or not.
Similarly, in absence of record of Summary Security Force Court, this Court is unable to return any finding as to whether the procedure prescribed under the BSF Act and the BSF Rules 1969 has been followed by the SSF Court or not.
A perusal of the record reveals that the petitioner has absented himself thrice during the course of his training at STC BSF, Udhampur and the medical record placed before this court does not pertain to the period for which the proceedings were initiated against the petitioner.
14) Be that at it may, in absence of original record to find out the compliance of the provisions of BSF Act and Rules made thereunder, this Court deems it proper to set aside the order dated 09.04.2003 passed by the Summary Security Force Court and the order dated 09.04.2003 passed by the respondent No. 3.
The respondents are directed to reinstate the petitioner in service forthwith, with liberty to initiate fresh proceedings against the petitioner within a period three months from today and the entitlement of the petitioner to the service benefits shall remain subject to the outcome of the proceedings.
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