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TMI Blog1996 (2) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... 83 he was found absent in the Coy Roll Call. He was also not found in the lines. He remained absent thereafter also. So on 21.1.1984, a notice was given to him to report for duty forthwith but he did not turn up. One more notice was given to him but there was no response from him. Thereafter, an enquiry was ordered under Section 62 of the BSF Act. Ultimately he was deemed to be a deserter. On 20.4.1984 because of his continuous absence, a show cause notice was given Calling upon him to show cause why he should not be dismissed as his further retention in service was considered undesirable. The respondent did not reply to the said notice. Therefore, on 5.5.1984 Commandant Vikram Singh passed an order dismissing him from service. An appeal was filed against that order but that was rejected. 3. On 6.11.1986 he filed a suit challenging the said order of dismissal. His case was that on 18.12.1983, sometime before mid-night, while he was proceeding to perform Sentry duty he was given 'pan' by his colleague. After eating it, he felt giddy and became semi-conscious. He was taken to the Sub-Inspector who though that he had consumed liquor. He was man handled by that S.I. and thrown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arising his absence and, therefore, no order of dismissal could have been lawfully passed on the ground of continuous absence. The High Court summarily dismissed the second appeal as it was of the view that no substantial question of law was involved and on the facts there were concurrent findings of both the courts. As stated earlier the High Court summarily dismissed the appeal filed by the appellant. 5. Mr. Tulsi, learned Additional Solicitor General, contended that the courts below have failed to appreciate that the order of dismissal was passed not by way of penalty for any offence committed by the respondent but in exercise of the power available to the authorities under Section 11(2) of the Act. Under that provision any officer not below the rank of Deputy Director-General or any prescribed officer has the power to dismiss or remove from service any person under his command other than an officer or a subordinate officer of such rank or ranks as prescribed by the Rules. He then submitted that this power is separate and independent of the power to punish for an offence. He also drew our attention to Rule 177 of the Rules under which the commandant is authorised to take action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd it appears that earlier there was no Rule indicating the circumstances and the manner in which that power was to be exercised. But now we find that the Rules contain such a provision. Rule 20 provides for termination of service for misconduct. The relevant part of the rule reads as under : (1) Where in the opinion of the Director General a person subject to the Act has conducted himself in such manner whether or not such conduct amounts to an offence, as would render his retention in service undesirable and his trial by Security Force Court inexpedient, the Director-General may inform the person concerned accordingly. (2)The Director General shall further inform the person concerned that it is proposed to terminate his services either by way of dismissal or removal. (Section 11) (3)The Director General shall furnish the particulars of allegations and the report of investigation (including the statement of witnesses, if any, recorded and copies of documents, if any intended to be used against him), in cases where allegations have been investigated : Provided that where the allegations have not been investigated, the Director-General shall furnish to the person concerned the names ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er stated therein that I therefore, tentatively propose to terminate your service by way of dismissal . The respondent was called upon to show cause within seven days as required by Sub-rule 6. No further inquiry was held; but we find that nothing further was required to be done in this case. The respondent did not reply to the notice. There was no denial of the allegations and no request to hold an enquiry. Therefore, it was not incumbent upon the Director General to appoint an enquiry officer to conduct an enquiry in the manner prescribed by Rule 21. Thus the prescribed procedure was followed before passing the dismissal order. The courts below have failed to appreciate the correct position of law and the facts. It was therefore wrongly held that the order of dismissal was illegal as it was not in accordance with the provisions of the Act and the Rules. 10. It was, however, contended by the learned Counsel for the respondent, relying upon the decision of the High Court of Punjab in State of Punjab v. Channan Singh, (1988) 3 A I S LJ 216 that once the absence from duty without leave is condoned or regularised by treating it as extraordinary leave no order of removal or dismissal c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order was passed not by way of penalty but in exercise of an independent and separate power conferred by Section 11. Obviously, after holding that further retention of the respondent in the service was undesirable, while passing the order of dismissal it was necessary to pass some order as to how the period of absence from 21.12.83 to 5.5.84 was treated for the purposes of finalising the dues and other benefits payable to the respondent. While ordering that period to be treated as extraordinary leave the Commandant did not knock out the basis of the order of dismissal passed by him as the basis of the order was that by remaining absent without leave for a long period the respondent had so conducted himself that his further retention in service had become undesirable. We do not think that by treating the period of absence as extraordinary leave the Commandant had made his order of dismissal inconsistent. Therefore, without deciding the contention of the learned Additional Solicitor General that the said decisions do not lay down correct law, we hold that the ratio laid down in those cases cannot apply to a case of this type. 11. We, therefore, allow this appeal, set aside the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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