BSF Personnel Can't Be Terminated Without Opportunity Of Hearing Even If Court Of Enquiry Concludes Trial Is Inexpedient: Jammu & Kashmir High Court

The Jammu and Kashmir and Ladakh High Court has recently ruled that under Rule 22 of the BSF Rules 1969, it is mandatory to inform the accused of all adverse reports against them and provide them with an opportunity to defend themselves in writing, even if a Court of Enquiry has concluded that trial of such person is inexpedient.

Justice Javed Iqbal Wani observed,

"Even if it is assumed that the respondents could proceed against the petitioner under Rule 22 supra while opining that it is inexpedient or impracticable to subject the petitioner to the trial for having overstayed leave, yet in terms of sub-Rule (2) of the Rules 22 supra, the respondents were mandatorily required to inform the petitioner together with all reports adverse to him besides providing an opportunity to him to submit in writing his explanation and defence."

The bench was hearing the plea of a BSF Constable who sought quashing of his termination for lave overstay, primarily on the ground that the he was never served with any show cause notice nor enquiry was conducted in the matter.

At the outset, Justice Wani perused the statutory scheme of BSF Act and Rules. It noted that Rule 173 outlines the procedure for Courts of Enquiry. Rule 173(8) specifies that a person subject to the Act must be given a chance to cross-examine any witnesses who testify against them, make a statement, and call witnesses in their defense before a Court of Enquiry can give an opinion against them.

Similarly, Rule 22 outlines the procedure for dismissal or removal of a person, other than an officer, due to misconduct. Sub-rule (2) thereof prescribes that the competent authority must provide the person with an opportunity to show cause against the proposed termination of their services. It states that if the competent authority deems the trial of the person in question to be impractical or inexpedient but finds their continued retention in service to be undesirable, they must inform the person of the adverse reports against them and ask for their written explanation and defense.

Observing that it is not in dispute that the petitioner overstayed the leave granted to him by the respondents, the bench pointed that respondents while having proceeded against the petitioner had fallen back upon Rule 22(2) of the Rules.

Highlighting the fact that respondents before terminating the services of the petitioner had issued a show cause notice, the bench said that on a deeper examination the same demonstrates that the respondents had neither followed Rule 173(8) nor Rule 22(2), before proceeding to dismiss the petitioner from services.

The respondents in the case have violated the principles of natural justice by breaching the statutory provisions of sub-rule (2) of Rule 22 and sub-rule (8) of Rule 173, the bench said while allowing the petition.

"Respondents are commanded to take the petitioner back in service with liberty to conduct an enquiry in accordance with law against the petitioner qua the overstaying of the leave if they choose so within a period of six weeks from today", the bench concluded.

Case Title: Hem Raj Vs Union of India & Ors.

Citation: 2023 LiveLaw (115)

Coram: Justice Javed Iqbal Wani

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