Supreme Court of India
UNION OF INDIA AND OTHERSversusRAM PHAL
- Citation
- 1996 INSC 330
- Decided
- 28 February 1996
- Disposal
- Appeal(s) allowed
- Bench
- S C AGRAWAL
Holding
A dismissal under Section 11(2) of the Border Security Force Act is valid if the procedure in Rule 20 of the BSF Rules – issuance of a show‑cause notice – is complied with, and no enquiry is required when the employee does not respond.
Summary
The respondent, a constable in the Border Security Force, was repeatedly absent without leave from December 1983 and, after several notices, was deemed a deserter. A show‑cause notice dated 20 April 1984 warned that his further retention was undesirable and proposed dismissal under Section 11(2) of the Border Security Force Act, 1968; he did not reply. The Commandant dismissed him on 5 May 1984, treating the period of absence as extraordinary leave. The respondent sued for a declaration that the dismissal was illegal and for an injunction; lower courts partially decreed, but the High Court dismissed his appeal. The Supreme Court examined whether an enquiry is required before exercising the power under Section 11(2) and whether the treatment of the absence as leave barred dismissal. It held that the procedure prescribed in Rule 20 of the BSF Rules – a show‑cause notice – suffices, and if the employee does not respond, no enquiry is necessary. Treating the absence as extraordinary leave does not invalidate the dismissal, which was exercised as an independent power under Section 11(2). The appeal by the Union of India was allowed, setting aside the High Court judgment and dismissing the respondent’s suit.
Issues considered
- Whether dismissal under Section 11(2) of the Border Security Force Act, 1968 requires a prior enquiry or if a show‑cause notice alone satisfies natural‑justice requirements.
- Whether the period of absence treated as extraordinary leave precludes a dismissal order on the ground of undesirable retention.
- Whether the Commandant had authority under the BSF Rules to dismiss the constable without an enquiry.
Legislation cited
- Border Security Force Act, 1968s. 11(2), s. 19, s. 4, s. 62
Subjects
dismissalBorder Security ForceSection 11(2)natural justiceshow cause noticeextraordinary leaveenquiryservice terminationadministrative law
Judgment
)
'
A UNION OF INDIA AND OTHERS
v.
-
RAMPHAL
FEBRUARY 28, 1996
B [S.C. AGRAWAL AND G.T. NANAVATI, JJ.]
......
Se1Vice Law:
Border Security Force Act, 1968: Section 11((2). ·
c Dismissal-Power of-Holding of enquiry before passing dismissal
order-Not necessary in view of insertion of Rule 2(}-Border Security Force
Rules, 1969.
Dismissal-Validity of-Show cause notice given-Constable not reply-
D ing no enquiry conducted-Held : not necessary to .hold enquiry-Prescribed
procedure fallowed-Dismissal order valid.
Dismissal-Validity of-Constable dismissed since his retention was
undesirable-Dismissal not because of misconduct of absence without
E leav~Period of absence treated as extraordinary leave-Dismissal
order-Basis of-Neither knocked out nor inconsistent-Grant of extraordi-
nary leave necessary for finalising dues and other benefits payable to Con-
stable.
The respondent was enlisted as a Constable in the Border Security
F Force. He was found absent in the Coy Roll Call ·and remained absent
thereafter also. A notice was given t~ him to report for duty forthwith but
he did not turn up. One more notice was given· to him but there was no
response from him. Thereafter, an enquiry was ordered under Section 62
of the Border Security Force Act, 1968. However, the absence from duty
G without l!!ave was condoned by treating it as extraordinary leave. Ultimate·
ly he was deemed to be a deserter. In view of his continuous absence, a
show cause notice was given calling upon him to show cause why he should
not be dismissed as his further retention in~service was considered un- ......
desirable. The respondent did not reply to the said notice. Therefore, the
Commandant passed ar. order dismissing him from ~eJ."".ice. An appeal was
H filed against that order but that was rejected.
1144
U.0.1. v. RAMPHAL 1145
The respondent then filed a suit for declaration that the order of his A
dismissal from service was illegal and void and for a mandatory injunction
directing the appellants to take him back in service. The suit was partly
decreed. The declaration as prayed for was granted but mandatory injunc-
tion was refused. Both the parties filed appeals against the said judgment.
The appeal filed by the respondent was allowed and that of the appellant B
was dismissed. The appellant then filed an appeal in the High Court, which
was dismissed. Aggrieved by the High Court's judgment the appellant
preferred the present appeal.
On behalf of Union of India, the appellant, it was contended that the
order of dismissal was not passed buy way of penalty for any offence C
committed by the respondent but in exercise of the power under Section
11 (2) of the Act; that before exercise of this power no enquiry was required;
and that the respondent was given a show cause notice which satisfied the
principles of natural justice.
On behalf of the respondent-employee it was contended that as no D
enquiry was held before passing the dismissal order the same was illegal;
and that once the absence from duty without leave was condoned or
regularised as extraordinary leave no order of removal or dismissal could,
therefore, be passed.
Allowing the appeal, this Court E
HELD : 1.1. It cannot be said that for exercising the power under
Section 11 (2) of the Border Security Force Act, 1968 no enquiry is required
to be held and that giving a show cause notice should be regarded as
sufficient compliance with the principles of natural justice. Section 11 of F
the Act is silent in this behalf but insertion of Rule 20 in the Border
Security Force Rules, 1969 provides termination of service for misconduct.
[1150-A-B]
Gouranga Chakrab01ty v. State of Tirpura and Anotlw; [1989) 3 SCC
314, relied on.
G
1.2. The respondent was given a show cause notice why he should not
be dismissed. However, no enquiry was held. But nothing further was
required to be done in this case. The respondent did not reply to the notice.
There was no denial of the allegations and no request to hold an enquiry.
Therefore, it was not incumbent upon the authorities to appoint an enquiry H
'/
)
1146 ·' SUPREME COURT REPORTS [1996] 2 s. C.R.
A officer to conduct an enquiry in the manner prescribed under the Rules.
Thus the prescribed procedure was followed before passing the dismissal
order. The Courts below have failed to appreciate the correct position of
law and facts. [1152-A-C]
2. In the present case the order of dismissal was not passed by way
B of penalty for the misconduct of absence without leave. Though such
absence was the cause and, therefore, it has been referred to in the show
cause notice and the order of dismissal, the respondent's service came to
be terminated on the ground that his conduct had rendered his detention
in service undesirable. The order of respondent's dismissal was passed not
C because the misconduct of absence without leave was proved but because
his further continuance in service was considered undesirable. The order
was passed not by way of penalty but in exercise of an independent and
separate power conferred by Section 11. Obviously, after holding that
further retention of the respondent in service was undesirable, while
passing the order of dismissal it was necessary to pass some order as to
D how the period of absence was treated for the purpose of finalising the
dues and other benefits payable to the respondent. While ordering that
period to be treated as extraordinary leave the Commandant did not knock
out the basis of the order of dismissal passed by him as the basis of the
order was that by remaining absent without leave for a long period the
E respondent had so conducted himself that his further retention in service
had become undesirable. By treating the period of absence as extraordi-
nary leave the Commandant had not made his order of dismissal incon-
sistent. (1153-B-E] ·
State of Punjab v. Channan Singh, (1988) 3 All India Services Law
F Journal 216, Tito Francisco Pereira v.Administrator of Goa, Daman and Diu
and Others, (1978) SJL 614 and G. Papaiah v. Assistant Director, Medical
Se1vices, Secunderabad, AIR (1976) AP, 75, distinguished.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4450 of
G 1991.
From the Judgment and Order dated 7.2.91 of the Delhi High Court
in R.S.A. No. 1 of 1991.
K.T.S. Tulsi, Additional Solicitor General, Tara Chardra Sharma, P.
H Parmeswaran and C.V. Subba Rao for the Appellants.
'
\ U.O.Lv. RAMPHAL[NANAVATl,J.]
Pradeep Kumar for Surya Kant for the Respondents.
1147
A
The Judgment of the Court was delivered by
NANAVATI, J. The respondent, a constable in the BSF, filed a suit
for declaration that the order of his dismissal from service was illegal and
void and for a mandatory injunction directing the appellants to take him B
- back in service. The suit was partly decreed. The declaration as prayed for
was granted but mandatory injunction was refused. Both the parties filed
appeals against the said judgment. The appeal filed by the respondent was
allowed and that of the appellant was dismissed. The appellant then filed
a second appeal in the Delhi High Court but that was also dismissed. The C
appellant has therefore filed this appeal after obtaining special leave.
The relevant facts are that the respondent was enlisted as a constable
in the BSF. On 21.12.83 he was found absent in the Coy Roll Call. He was
also not found in the lines. He remained absent thereafter also. So on
21.1.1984, a notice was given to him to report for duty forthwith but he did D
not turn up. One more notice was given to him but there was no response
from him. Thereafter, an enquiry was ordered under Section 62 of the BSF
Act. Ultimately he was deemed to be a deserter. On 20.4.1984 because of
his continuous absence, a show cause notice was given Calling upon him to
show cause why he should not be dismissed as his further retention in E
serVice was considered undesirable. The respondent did not reply to the
said notice. Therefore, on 5.5.1984 Commandant Vikram Singh passed an
order dismissing him from service. An appeal was filed against that order
but that was rejected.
On 6.11.1986 he filed a suit challenging the said order of dismissal. p
His case was that on 18.12.1983, sometime before mid-night, while he was
proceeding to perform Sentry duty he was given 'pan' by his colleague.
After eating it, he felt giddy and became semi-conscious. He was taken to
the Sub-Inspector who though that he had consumed liquor. He was man
handled by that S.I. and thrown out of the barrack. Some unknown persons
took him to his native place. He thereafter suffered form mental illness and G
could not resume him duty nor could he reply to the notice dated 20.4.1984.
He recovered after a year anq then he ·came to know that an order
dismissing him was already passed. The order of dismissal was challenged
on the ground that it was not within the competence of the Commandant
to pass such an order and that the penalty of dismissal could not have been H
1148 SUPREME COURT REPORTS (1996] 2 S.C.R.:
\
J
A imposed without holding an enquiry in the manner prescribed by the A~t
and the Rules. The ,appellant defended the action on the ground that after
the respondent was deemed to be a deserter his service came to be
terminated in exercise of the power available Section 11 of the Act and
that according to Rule 177 of the BSF Rules the commandant is a com-
petent officer for taking action under Section 11(2).
B
The learned trial Judge held that after a person is deemed to be a
deserter he has to be tried by a Security Force Court under Section 19 of
the Act after he surrenders and is arrested and only thereafter penalty can
be imposed him. The learned Judge also held that the impugned action
C cannot be supported under Section 11(2) of the Act as the power under
that section can be 'exercised by the Director General or the prescribed
officer and there was nothing on record to show that Commandant Vikram
Singh was competent to pass the impugned order. The learned Judge also
held that power under Section 11 could be exercised only after holding an
D enquiry in accordance with the principles of natural justice. According to
the learned judge, as neither any court was constituted as required for
awarding punishment for the offence alleged to have been committed by
the respondent nor any chargesheet was issued as required by the
prescribed procedure, the order of dismissal has to be regarded as illegal.
The learned .Judge did not grant the mandatory injunction as he was of the
E opinion that the respondent had to first surrender and then it was open to
the authorities to take action against him. The learned Additional District
Judge dismissed the appeal filed by the appellant not only agreeing with
the findings recorded by the lower court but also on the ground that the
order of dismissal itself discloses that the period of absence of the respon-
F dent was treated as extra ordinary leave and that amounted to regularising
his absence and, therefore, no order of dismissal cou~d have been lawfully
passed on the ground of continuous absence. The High Court summarily
dismissed the second appeal as it was of the view that no substantial
· question of law was involved and on the facts there were concurrent
findings of both the courts. As stated earlier the High Court summarily
G dismissed the appeal filed by the appellant.
Mr. Tulsi, learned Additional Solicitor Ge?Jeral, contended that the
courts below have failed to appreciate that the order of dismissal was
passed not by way of penalty for any offence committed by the respondent
H but in exercise of the power available to the authorities under Section 11(2)
\
\ U.0.1. v. RAMPHAL [NANAVATI, J.] 1149
of the Act. Under that provision any officer not below the rank of Deputy A
Director-General or any prescribed officer· has the power to dismiss or
remove from service any person under his command other than an officer
or a subordinate officer of such rank or ranks as prescribed by the Rules.
He then submitted that this power is separate and independent of the
power to punish for an offence. He also drew our attention to Rule 177 of
the Rules under which the commandant is authorised to take action under B
Section 11(2) of the Act against any person under his command other than
an officer or a subordinate officer and submitted that the respondent was
not an officer or subordinate officer and, therefore, Commandant was
competent to pass the impugned order of dismissal. He further submitted
that before exercising that power no enquiry was required to be held and C
as the respondent was given a show notice the principles of natural justice
were also satisfied. On the other hand the leaq1ed counsel for the respon-
dent contended that as no inquiry was held before passing the dismissal
order, it was rightly held by the courts below as illegal.
In Gouranga Chakraborty v. State of T1ipura and Another, (1989] 3 D
SCC 314, this Court has held that the services of the enrolled persons under
the BSF Act are governed by the Provisions of the Act as well as the Rules
famed thereunder and 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 E
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
F
without sufficient cause and to award punishment for the same. Though in
the order of dismissal it was not stated under which provision of law it was
passed, the appellant had disclosed in the written statement that it was
passed under Section 11(2) of the Act. Therefore, the view taken by the
courts below that the order of dismissal could not have been passed without
first holding an enquiry by the Security Force Court and that Commandant G
had no authority to pass such an order under Section 11(2) of the Act is
clearly erroneous.
- We are, however, not able to agree with the contention raised by the
learned Additional Solicitor General that for exercising power under Sec- H
1150 SUPREME COURT REPORTS [1996] 2 s.c.~.
)
A tion 11(2) of the Act no enquiry is required to be held and considering the
nature of the Force and the utmost necessity o{ maintaining discipline
giving a show cause notice should be regarded as sufficient compliance with
the principles of_p.atural justice. Section 11 is silent in this behalf and it
appears that earlier there was no Rule indicating the circumstances and
the manner in which that power was to be exercised. But now we find that
B
the Rules contain such a provision. Rule 20 provides for termination of
service for misconduct. The relevant part of the rule reads as under :
"(1) Where in the opinion of the Director General a P.erson
subject ~o the Act has conducted himself in such manner whether
c 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 con-
D cerned that it is proposed to terminate his services either by way
of dismissal or removal. (S.11)
(3) The Director General shall furnish the particulars of allega-
tions and the report of investigation (including the statement of
E witnesses, if any, recorded and copies of documents, if any in-
tended 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 person concerned the
F names .of witnesses with a brief summary of the evidence and copies
of documents, if any, in support of the allegations.
(4) ............. .
(5) ........... .
G
(6) The person concerned shall within seven days from the
receipt of information furnished to him under subrule (3) inform,
in writing, the Director-General :
H (a) his acceptance or denial of the allegations;
U.0.1. v. RAMPHAL [NANAVATI, J.] 1151
(b) any material or evidence he wishes to be considered in A
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. B
(7) Where the person concerned has expressed a wish to
cross-examine any witness or to produce witnesses in defence, the
Director General shall appoint an enquiry officer who shall be an
officer superior to the person against whom it is proposed to take C
action and had not taken any part previously in the investigation
into the matter."
Rule 21 provides for appointment of an enquiry officer and the procedure
to be followed by him. Rule 22 provides for imposition of penalty. Sub
Section 4 of Section 11 makes the exercise of any power under that section D
subject to the provision of the Act and also the Rules. Therefore, after
introduction of Rule 20 in the Rules it cannot be validly contended that no
enquiry need be held while exercising the power under Section 11(2). We
will now examine if the prescribed procedure was followed in this case.
The show cause notice clearly appears to have been issued in terms of E
subrule 1 of Rule 20. It reads as under :
"You have been absent without leave with effect from 21st Dec.,
83. I am of the opinion that because of this absence without leave
for such a long period. Your further retention in service is un-
desirable. I, therefore, tentatively propose to terminate your service F
by way of dismissal. If you have anything to urge in your defence
or against the proposed action, you may do so before 4.5.84. In
case no reply is received by that date, it will be inferred that you
have no defence to put forward."
The first sentence in the notice that "You have been absent without G
leave with effect form 21st Dec., 83" satisfied the requirement of sub-rule
(3). When it further stated that "I am of the opinion that because of this
absence without leave for such a long period, your further retention in
service is undesirable" it complied with the requirement of sub-rule (1) and
as required by sub-rule (2) it was further stated therein that "I therefore, H
1152 SUPREME COURT REPORTS [1996] 2 S.C.R.
)
A tentatively propose to terminate your service by way of dismissal". The
respondent was called upon to show cause within seven days as ·required
by subrule 6. No further inquiry was held; but we find that nothing further
was required to be done in this case. The respondent did not reply to the
notice. There was no denial of the allegations and no request to hold an
enquiry. Therefore, it was not incumbent upon the Director General to
B appoint an enquiry officer to conduct an enquiry in the manner prescribed
by Rule 21. Thus the prescribed procedure was followed before passing
the dismissal order. The courts below have failed to appreciate the correct
position of law and the facts. It was therefore wrongly held that the order
of dismissal was illegal as it was not in a::cordance with the provisions of
c the Act and the Rules.
It was, however, contended by the learned counsel for the respon-
dent, relying upon the decision of the High Court of Punjab in State of
Punjab v. Channan Singh, (1988) 3 All India Services Law Journal 216 that
D once the absence from duty without leave is condoned or regularised by
treating it as extraordinary leave no order of removal or dismissal can
thereafter be passed on the ground of absence from duty without leave.
The learned counsel drew our attention to the second paragraph of the
dismissal order wherein it is stated that "the absence period from 21 Dec.
83 to 05 May 84 (FN) is hereby treated as EOL''. He submitted that as the
E period of respondent's absence from 21st December, 1983 to 5th May, 1984
was treated as extra ordinary leave, it could not have been, without being
inconsistent, treated as absence without leave for the purpose of passing
the order of dismissal. In Channan Singh's case (supra), the High Court
of Punjab referred to the decisions in Tito Francisco Pereira v. Ad-
F ministrator of Goa· Daman and Diu and Others, (1978) SJL 614, G. Papaiah
v. Assistant Director, Medical Se1Vices, Secunderabad AIR 1976 AP 75 and
Bhursinh Hamsinh Rajput v. The State of Gujarat and Another, (1982) 1 SLJ
697 and observed that the consensus of the decisions is that once the period
of absence is treated as leave of any kind whatsoever, the fact that the
person remained absent no more survives and the charge of absence from
G duty cannot be sustained after the person has been treated on leave of
whatsoever kind it may be. In all those cases a departmental action was
initiated for imposition of penalty upon the delinquent employee for the
misconduct of remaining absent without leave· and on completion of en-
quiry, while passing an order of penalty, it was further ordered that the
H absence should be treated as leave of some kind. As absence was treated
\\
V.0.1.v. RAMPHAL[NANAVATI,J.) 1153
as leave of whatever kind, it ceased to be a misconduct and, therefore, it A
could not thereafter have survived as a basis for imposing penalty. For that
reason it was held in those cases that as the very basis for the charge was
knocked out no order of dismissal could have been passed thereafter. In
the present case the order of dismissal was not passed by way of penalty
for the misconduct of absence from duty without leave. Though such B
absence was the cause and, therefore it has been referred to in the show
cause notice and the order of dismissal, the respondent's service came to
be terminated on the ground that his conduct had rendered his retention
in service undesirable. The order of respondent's dismissal was passed not
because the misconduct of absence without leave was proved but because
his further continuance in service was considered undesirable. The order C
was passed not by way of penalty but in exercise of an independent and
separate power conferred by Section 11. Obviously, after holding that
further retention of the respondent in the service was undesirable, while
passing the order of dismissal it was necessary to pass some order as to
how the period of absence from 21.12.83 to 5.5.84 was treated for the D
purposes of finalising the dues and other benefits payable to the respon-
dent. While ordering that period to be treated as extraordinary leave the
Commandant did not kllock out the basis of the order of dismissal passed
by him as the basis of the order was that by remaining absent without leave
for a long period the respondent had so conducted himself that his further
retention in service had become undesirable. We do not think that by E
treating the period of absence as extraordinary leave the Commandant had
made his order of dismissal inconsistent. Therefore, without deciding the
contention of the learned Additional Solicitor General that the said
decisions do not lay down correct law, we hold that the ratio laid down in
those cases cannot apply to a case of this type. F
We, therefore, allow this appeal, set aside the judgment and order
passed by the Delhi High Court in Regular Second Appeal No. 1 of 1991
and dismiss the suit filed by the respondent. In the facts and circumstances
of the case, there shall be no order as to costs.
v.s.s. G
Appeal allowed.
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