Article 311 Constitution Not Applicable To Armed Force: Calcutta High Court Refuses To Interfere With BSF Constable's Dismissal

The Calcutta High Court on Monday refused to interfere with the dismissal order of a BSF Constable who overstayed his leave, on the ground that Article 311 of the Constitution is applicable only to the holders of civil posts and not to the members of the Armed Forces.

Article 311 lays down ground rules for dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.

The single bench of Justice Lapita Banerji observed:

“Article 311 is only applicable to the holders of civil posts and not to the members of the Force. Article 310 is applicable to members of defence service as well as members of civil service, but Article 311 is only applicable in case of persons employed in civil capacities under the Union or State.”

The petitioner (Constable in BSF) was granted casual leave of 15 days with effect from June 22, 2020 till July 9, 2020. The petitioner continued to be on leave without praying for the extension of leave.

Three separate notices were issued by the Commandant, BSF to the petitioner dated July 16, 2020; September 23, 2020 and September 30, 2020 respectively, asking him to join his service immediately failing which a strict disciplinary action will be initiated against him under the BSF Act, 1968.

However, the petitioner did not reply to the said notices neither he joined the service.

An inquiry was also conducted against the petitioner under Section 62 (Inquiry into absence without leave) of the BSF Act in which it was recorded that the petitioner has been illegally overstaying his leave with effect from September 13, 2020, without any sufficient cause and therefore it was considered that the petitioner was on continued illegal absence from the duty.

A show-cause notice was issued to the petitioner on March 4, 2021 whereby he was called upon to show-cause within 30 days, why he should not be dismissed from service.

The petitioner did not show-cause within 30 days and thereafter, vide order dated April 10, 2021, the petitioner was dismissed from the service with effect from April 10, 2021.

The petitioner made a representation on May 9, 2022 against the dismissal order, which was dismissed by an order dated October 21, 2022 of the Inspector General who was of the opinion that there was no reason to interfere with the order of dismissal.

Soumen Kumar Dutta, the counsel appearing for the petitioner contended that the petitioner is governed by Article 311 (Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State) of the Constitution of India.

He further submitted that under Article 311 (2), no person shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

Mr. Dutta argued that the petitioner is a holder of a civil post and, therefore, cannot be discharged from service without following Article 311.

The court noted, “On facts, the petitioner failed to either reply to the several notices which were issued to him from time to time or the showcause notice. He challenged the order of dismissal after one year of passing of the same. The conduct of the petitioner shows extreme indiscipline and no respect for his service.”

The court further observed that the petitioner had no interest in continuing with his service giving his inaction/lackadaisical conduct.

The court held that the petitioner being a member of Force is clearly governed by the BSF Act, 1968 and the BSF Rules, 1969 and therefore, Article 311 of the Constitution has no application in the instant case as the petitioner is not a civil post holder.

Thus, the Court dismissed the petition for being misconceived, frivolous and being a complete waste of judicial time.

Case Title: Simonta Borah v. Union of India & Ors.

Citation: 2023 LiveLaw (Cal) 75

Coram: Justice Lapita Banerji

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