Case Title: Pawan Prajapati v. Union of India & DGP, BSF
Case No.: S.B. Civil Writ Petition No. 9900/2005
Decided on: 19.07.2023
Coram: HON’BLE MR. JUSTICE ANOOP KUMAR DHAND
Facts of the case:
The petitioner was serving as a Constable in Border Security Force (for short ‘BSF’) and he was granted 8 days casual leave from 27.10.2003 to 4.11.2003 but he over-stayed for 77 days and he rejoined his services on 20.01.2004.The reason for his absence was the ailments of his parents.
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 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.
Judgement:
“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 to get any back wages from the date of his removal from service till his reinstatement.
Analysis:
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. 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. The orders are non-speaking orders, which have violated the principles of natural justice. Hence, the matter requires reconsideration by the Disciplinary Authority for passing appropriate, reasoned order after following the procedure contained under Chapter VII of the Rules of 1969.
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Written by: Mahima Saini
