1996 (2) TMI 601 - SC - Indian Laws

Summary

Issues Involved:
1. Legality of the dismissal order.
2. Competence of the Commandant to pass the dismissal order.
3. Requirement of an enquiry before dismissal.
4. Effect of treating the period of absence as extraordinary leave on the dismissal order.

Summary:

1. Legality of the dismissal order:
The respondent, a BSF constable, challenged his dismissal order as illegal and void, seeking reinstatement. The trial court partly decreed the suit, granting the declaration but refusing the mandatory injunction. Both parties appealed, with the respondent's appeal being allowed and the appellant's dismissed. The Delhi High Court also dismissed the appellant's second appeal, leading to this appeal.

2. Competence of the Commandant to pass the dismissal order:
The respondent was deemed a deserter after being absent without leave. The Commandant dismissed him from service u/s 11(2) of the BSF Act. The trial court held that only the Director General or a prescribed officer could exercise this power, and there was no evidence that the Commandant was competent. The appellate court agreed, noting that the absence was treated as extraordinary leave, regularizing it and invalidating the dismissal.

3. Requirement of an enquiry before dismissal:
The appellant argued that the dismissal was not a penalty for an offence but an exercise of power u/s 11(2) of the Act, which does not require an enquiry. However, the court held that an enquiry is necessary to comply with natural justice principles. Rule 20 of the BSF Rules mandates an enquiry for termination due to misconduct, requiring the Director General to inform the person and provide particulars of allegations. The show cause notice issued to the respondent complied with Rule 20, but no further enquiry was held as the respondent did not reply.

4. Effect of treating the period of absence as extraordinary leave on the dismissal order:
The respondent's counsel argued that treating the absence as extraordinary leave regularized it, making the dismissal inconsistent. The court distinguished this case from others where absence was treated as leave, ceasing to be misconduct. Here, the dismissal was not a penalty for misconduct but due to the respondent's conduct rendering his retention undesirable. Treating the absence as extraordinary leave did not invalidate the dismissal.

Conclusion:
The appeal was allowed, the High Court's judgment was set aside, and the respondent's suit was dismissed. No order as to costs was made.