Rajasthan High Court Orders Reinstatement Of BSF Constable Terminated In 2004 For Overstay Of Casual Leave

The Rajasthan High Court at Jaipur on Wednesday set aside the dismissal order of a BSF Constable who was terminated from the service in 2004 on account of over stay of casual leave.

While directing the Union Government to reinstate the said constable, the single judge bench comprising Justice Anoop Kumar Dhand observed:

“The impugned order dated 08.03.2004 has been passed by the Summary Security Force Court without assigning any reason and similarly the order dated 31.08.2004 passed by the Appellate Authority does not give any reason for passing such order. Hence, both the orders are non-speaking orders, which have violated the principles of natural justice.”

The case of the petitioner was that he was serving as a Constable in Border Security Force (BSF) and he was granted 08 days casual leave from October 27, 2003 to November 4, 2003 but he over-stayed for 77 days and he rejoined his services on January 20, 2004.

The counsel appearing for the petitioner submitted that a charge-sheet was served upon the petitioner on March 01, 2004 but prior to issuance of charge-sheet, the proceedings of recording evidence was conducted on February 11, 2004; February 12, 2004 and February 16, 2004 in contravention of Rule 48 of the Border Security Force Rules, 1969.

It was further submitted that as per the Rule 44 of the Rules of 1969, it is mandatory for the authorities to first serve the charge-sheet and, thereafter, record the evidence but here in the instant case, the evidence was recorded first and charge-sheet was served at the later stage. It was argued that without considering the defence taken by the petitioner, the respondents passed the impugned order on March 08, 2004 without passing any speaking or reasoned order.

Aggrieved by the impugned order, the petitioner submitted an appeal before the Appellate Authority and the same was also dismissed summarily without assigning any reasons vide impugned order dated August 31, 2004. The counsel argued that it was incumbent upon the authorities to pass a reasoned and speaking order but here in the instant case, this exercise has not been done.

On the other hand, the counsel appearing for the respondents submitted that neither the cause of action nor any part of cause of action has arisen within the State and mere communication of the order does not give the petitioner, the cause to approach the High Court.

It was further argued that entire proceedings were conducted as per Rule 48 of the Rules of 1969 and when the evidence was recorded, three witnesses were examined and opportunity of cross-examination was given to the petitioner but the petitioner refused to cross-examine all the witnesses.

The counsel submitted that the dismissal is based on the finding recorded in the inquiry report, therefore no further elaborate reasons were required to be given by the disciplinary as well as the appellate authority.

The court said that a bare perusal of both the impugned orders clearly indicates that these orders do not fulfil the requirement of passing of speaking orders.

It relied upon the judgment of the Supreme Court in S.N. Mukherjee v. Union of India AIR 1990 SC 1984 wherein it was held that administrative actions must be supported by reasons. The court further put reliance upon the judgment in Siemens Engineering & Manufacturing Co. of India Ltd. v. Union of India and Anr (1976) 2 SCC 981 in which the Apex Court held that every quasi-judicial authority must record reasons in support of the order it makes.

The court observed that disciplinary power to inflict punishment not only stigmatizes a person but also takes away his bread or slice thereof such proceedings call for strict test of fair play and fair procedure.

“The Disciplinary Authority in the present case merely recorded its ipse dixit that the petitioner has been tried by the Summary Security Force Court on 08.03.2004 for the offence under Section 19(b) and he was found guilty of the charge and was awarded sentence of dismissal from service. No reasons have been recorded that why such conclusion to dismiss him from service has been made,” said the court

Quashing the order, the court said: “The matter is remitted back to the appropriate authority for passing reasoned and speaking order after following the provisions contained under Chapter VII of the Rules of 1969 after granting opportunity of hearing to both sides within a period of three months from the date of receipt of certified copy of this order”.

The Court further directed the respondents to reinstate the petitioner back in service but he will not be entitled to get any back wages from the date of his removal from service till his reinstatement.

Case Title: Pawan Prajapati v. Union of India & DGP, BSF

Coram: Justice Anoop Kumar Dhand

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