[BSF Rules 1969] Necessary For Competent Authority To Record Satisfaction Before Ordering Dismissal By Resorting To Rule 22(2)

Rule 22(2) of the Border Security Force (BSF) Rules pertains to the dismissal or removal of personnel other than officers on grounds of misconduct. According to this rule, the competent authority can dismiss or remove an individual from service if they are satisfied that the trial by the Security Force Court is inexpedient or impracticable.

A bench of Justice Wasim Sadiq Nargal has clarified that In the absence of such satisfaction and a fair inquiry into the alleged misconduct, the dismissal order by taking recourse to the above Rule is violative of both the Border Security Force Act and established principles of natural justice.

Background:

The court made these observations in a case that stemmed from the dismissal of Naseer Ahmad, who contested an order dated February 4th, 2008, which terminated his service without proper procedure.

Represented by Mr. Sofi Manzoor, Advocate, Naseer Ahmad challenged the dismissal order on grounds of violation of natural justice, specifically citing non-receipt of a proper show-cause notice and the absence of a fair hearing.

Counsel for the petitioner vehemently argued that the respondents ought to have exercised the power under Section 19 of the Act of 1968 with particular reference to Section 19 (b) of the Act of 1969 which deals with the subject of overstaying leave without sufficient cause. Without resorting to Section 19 of the Act, the respondents could not have exercised the power under Rule 22 of the Rules of 1969, which deals with the dismissal or removal of a person other than officer on account of misconduct, he submitted.

On the other hand, representing the respondents, Mr. Hakim Aman Ali, Advocate, argued that Ahmad had been granted earned leave but failed to rejoin duty after its expiry, leading to his dismissal. The respondents maintained that all requisite procedures, including the issuance of show-cause notices and the initiation of a Court of Inquiry, were duly followed.

Observations Of The Court:

Scrutinising the record of the instant case Justice Nargal observed that the show-cause notice issued to Naseer Ahmad lacked essential documents and failed to provide a fair opportunity for defense, thus violating the principles of natural justice.

“A perusal of the said Show Cause Notice and material on record, would reveal that along with the Show Cause Notice, no other documents (copies of Court of Inquiry proceedings and other related documents) were annexed or attached thereto have been served upon the petitioner…This is indeed a violation of the principles of natural justice to the detriment of the petitioner”, the bench recorded.

Examining the legal framework governing such cases, the court highlighted the provisions of Rule 22(2) of the BSF Rules, which permit dismissal on grounds of misconduct, provided the competent authority is satisfied that the trial by the Security Force Court is impracticable or inexpedient.

Justice Nargal emphasized that resorting to administrative action instead of the standard trial by the Security Force Court is an exceptional measure and therefore, it places a heightened obligation on the authorities to meticulously apply their judgment and duly document their satisfaction as mandated by the Rules.

The court further clarified that the process of recording such satisfaction, following a thorough consideration of the matter, should not only be evident but also clearly reflected in the record.

Drawing attention to precedents such as Ajaib Singh v. Union of India and Jitender Singh v. Union of India, which reiterated the necessity of recording a satisfaction by the competent authority before resorting to Rule 22(2) the bench recorded,

“In the present case, no such satisfaction as required under the said rule, has been recorded by the respondents either in the impugned order or show-cause notice and it is only the satisfaction that is to be arrived at by the respondents while exercising powers under said rule”.

Furthermore, the court said that to substantiate the petitioner's alleged misconduct, an inquiry must be conducted, during which the petitioner is entitled to receive all relevant materials and documents and afforded an opportunity to be heard.

“From the bare perusal of the record, it is clear that no such enquiry has been held by the respondents into the alleged misconduct of the petitioner which was the mandate under Rule 22(2) of the Rules. Therefore, the respondents by no stretch of imagination can construe petitioner‟s overstaying leave “simpliciter” as misconduct without putting him to trial under section 19 or without conducting an enquiry under rule22(2)”, the bench reasoned.

In the absence of such satisfaction and a fair inquiry into the alleged misconduct, the court ruled the dismissal order as violative of both the Border Security Force Act and established principles of natural justice.

In view of these observations the court quashed the impugned order of dismissal and directed the respondents to reinstate the petitioner with all consequential benefits.

However, the court also extended the liberty to the respondents to conduct a proper inquiry, should they deem it necessary, while ensuring the petitioner's right to a fair hearing.

Case Title: Naseer Ahmad Vs Union of India

Citation: 2024 LiveLaw (JKL) 110

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