BSF Act 1968 | Commandant Can Dismiss BSF Personnel Without Security Force Court Trial Provided Procedures Outlined In BSF Rules Are Followed: J&K High Court

Clarifying the competence of the commandant in issuing dismissal order Justice Sanjay Dhar observed,

“..power of the Commandant under Section 11(2) of the Act read with Rule 177 of the Rules to dismiss a person other than an officer or subordinate officer is an independent power and it is not dependent upon the conviction of the concerned person by the Security Force Court. The only requirement is that the provisions contained in Rule 22 of the Rules have to be followed'.

Elaborating on the mandate of Rule 177 of the BSF Rules Justice Dhar explained that the Commandant is the prescribed officer under sub-section (2) of Section 11 to dismiss or remove from service any person under his command other than a officer or a subordinate officer. Thus, a Commandant of a Unit is competent to issue an order of dismissal of a constable working in his Unit, the court said.

The case revolved around petitioner Sita Devi, the widow of Gopal Ram, a BSF constable who had been absent without leave since September 5, 1998. Gopal Ram was officially terminated from service on October 12, 2000, by the Commandant of the 102nd Battalion, BSF. Sita Devi challenged the termination, seeking the release of a family pension, claiming that her husband's termination did not follow due legal procedures.

The petitioner argued that her husband's termination was unlawful as it did not comply with the BSF Act, 1968, and the BSF Rules, 1969. She asserted that no proper inquiry was conducted, and her husband was not given an opportunity to defend himself before his dismissal. She also contended that the termination should have been predicated on a conviction by a Security Force Court.

The respondents, represented by Mr. Vishal Sharma, DSGI, maintained that all due processes were followed. They stated that multiple attempts were made to contact Gopal Ram and locate him, including issuing apprehension rolls and filing missing person reports.

They argued that Gopal Ram's continued absence without leave justified the dismissal under Section 11 of the BSF Act and Rule 22 of the BSF Rules as the Commandant's power to dismiss personnel under Section 11(2) of the BSF Act is independent of a Security Force Court trial.

After meticulously examining the relevant provisions of the BSF Act and Rules the court observed that while the Commandant has the authority to dismiss personnel, this power is subject to the Act and Rules.

The Court referred to the Supreme Court judgement in "Gouranga Chakraborty vs. State of Tripura" (AIR 1989) which established that the Commandant's dismissal power under Section 11(2) is independent of a Security Force Court trial.

The Court emphasized that the Commandant acted within his powers under Section 11(2) of the BSF Act, which allows for the dismissal of a person other than an officer or subordinate officer, without requiring a prior conviction by a Security Force Court. This power is contingent upon adherence to Rule 22, which mandates issuing a show cause notice and considering the individual's explanation, the court said.

In this case, the Court noted that the BSF had sent a show cause notice to Gopal Ram's address, even though it remained undelivered due to his absence. The Court held that the BSF had fulfilled their obligation by taking reasonable steps to serve the notice and launch a search for the missing constable.

“Even otherwise it is nobody's case, that the petitioner's husband was either prevented by any sufficient cause from attending his duty or that he had actually attended his duty, but was not marked present by the respondents. The facts in this regard are admitted, therefore, there was no need to hold a regular departmental enquiry to ascertain the facts in these circumstances”, the court recorded.

Consequently, the Court dismissed Sita Devi's petition and upheld the BSF's dismissal order.

Case Title: Sita Devi Vs Union Of India

Citation: 2024 LiveLaw (JKL) 144

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