No Interference In Punishment Unless It Shocks Conscience: J&K High Court Upholds Dismissal Of BSF Personnel For 2-Yr Unauthorized Absence

In dismissing his plea challenging his dismissal Justice Wasim Sadiq Nargal observed,

“In the instant case, petitioner has admittedly remained absent from duty from a disciplinary force of BSF for more than two years. Accordingly, the respondents have chosen to impose the punishment of dismissal from service. In addition, the respondents have placed on record various notices issued to the petitioner and thus, the respondents cannot be expected to wait indefinitely for the petitioner”

The petitioner, Kishan Tukaram Gavade, a BSF constable was granted leave for seven days following the demise of his father. However, Gavade did not return to duty, citing medical reasons for his prolonged absence, which lasted for nearly two years. According to the petitioner, he suffered from tuberculosis and mental illness during this period and submitted medical certificates to support his claims.

Upon his attempt to rejoin duty in May 2004, the petitioner was informed that he had already been dismissed from service in December 2002 for unauthorized absence. The petitioner challenged his dismissal, alleging that the respondents failed to conduct an inquiry and provide an opportunity to be heard as mandated by the BSF Act.

The petitioner argued that his absence was justified due to his medical condition and claimed that the dismissal violated provisions of the Border Security Force (BSF) Act, 1968, and the BSF Rules, 1969. He emphasized the lack of a proper inquiry and the failure to provide adverse material for his defense.

On the other hand, the respondents contended that the petitioner overstayed his leave without proper communication and despite multiple notices, failed to report back to duty. They asserted that all procedural requirements under the BSF Act and Rules were followed before issuing the dismissal order.

Justice Nargal meticulously examined the record and legal provisions. Referring to the High Court's limited scope in interfering with disciplinary matters, he stated:

"Under Article 226/227 of the Constitution, the High Court shall not go into the proportionality of punishment unless it shocks its conscience." The court reiterated that members of uniformed forces are subject to a higher standard of duty and discipline, especially in cases of unauthorized absence.

The court further observed, "It is imperative to note that members of uniformed forces, having regard to the nature of the duties enjoined upon them, are expected to observe a higher duty of care in case of abstention from duty. As such, in light of these circumstances, the extended period of overstay by the petitioner cannot be justified by taking a mere plea of a medical condition at the end of two years."

The court rejected the petitioner's claims of procedural lapses, noting that the BSF authorities had adhered to the necessary legal provisions. The record showed that notices were issued to the petitioner, including an apprehension roll and a show-cause notice and the competent authority had duly satisfied itself under Rule 22(2) of the BSF Rules, 1969, before proceeding with the dismissal.

Furthermore, the court highlighted that all efforts to secure the petitioner's return, including the issuance of an apprehension roll and a show-cause notice, were unsuccessful.

Justice Nargal remarked, "Since he did not report to the unit, despite providing various opportunities including the issue of apprehension roll and show-cause notice, as such his trial by the Security Force not only was inexpedient but also impracticable. Thus, it can safely be concluded that all provisions of the BSF Act and rules framed therein were followed by the respondents while issuing the order of dismissal of the petitioner."

The court also addressed the petitioner's reliance on Rule 173 of the BSF Rules, which mandates that an individual subject to inquiry be given a chance to present their case. However, the court clarified,

"Insofar as Rule 173 of the BSF Rules is concerned, the same is not applicable in the instant case. Pertinently, the petitioner was overstaying from leave and never reported, despite giving him repeated opportunity. He failed to respond to the correspondence, as such, keeping in view his willful overstay w.e.f. 17.06.2002, respondents have taken all actions under Section 62, 11(2) read with BSF Rule 177 and confirmatory Rule 22(2), which are applicable to the enrolled person of BSF."

Finding no legal infirmity in the dismissal of the petitioner, the dismissal was deemed proportionate to the gravity of the misconduct. Consequently, the writ petition was dismissed, with the court upholding the order of dismissal.

Case Title: Kishan Tukaram Gavade Vs Union Of India

Citation: 2024 LiveLaw (JKL) 269

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