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Article 311(2) in The Constitution Of India 1949
Article 311 in The Constitution Of India 1949
THE BORDER SECURITY FORCE ACT, 1968
Rajinder Kaur vs Punjab State & Anr on 8 August, 1986
Jarnail Singh vs State Of Punjab on 23 November, 1995

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Punjab-Haryana High Court
Pawanjit Singh vs Director General, Bsf And Ors. on 28 July, 2004
Equivalent citations: (2004) 138 PLR 259
Author: S Nijjar
Bench: S Nijjar



JUDGMENT
 

S.S. Nijjar, J.

1. The petitioner was formally enrolled as a temporary Constable in the Border Security Forces (hereinafter referred to as "the B.S.F.") w.e.f. 1.1.1987. According to the petitioner, he excelled in all the fields of training and did well in all the examinations. However, on 9.1.1988, the petitioner was called by his Officer and directed to bring a certificate from Army authorities where he had been working prior to joining the BSF. The respondents wanted to ascertain the ground on which the petitioner was discharged from the Army. The petitioner produced the necessary discharge certificate issued by the 2 Training Battalion, Bengal Engineer Group and Centre, Roorkee. It is stated that the petitioner has been discharged from service w.e.f. 31.12.1985 on compassionate ground at his own request under Item-IV of the table to Rule 13(3) (iii) of the Army Rule, 1954, after having served 09 months and 03 days. His character was not assessed as he was having less than one year service. On 2.2.1988, the respondents dismissed the petitioner from service on the ground that he suppressed the fact that during the enrollment in BSF as Constable (GD), he was an ex-serviceman. The petitioner was dismissed from service, without giving any show-cause notice. The petitioner has challenged the aforesaid order on the ground that decision was taken in violation of the provisions of Border Security Force Rules, 1969. Rule 20 provides for the procedure to be followed in cases of termination of services for misconduct. Rule 21 provides for the procedure to be followed by the Enquiry Officer. Rule 22 provides for the penalty. It is pleaded that dismissal of the petitioner from service is without following the procedure as laid down in the Rules and is illegal and void in the eyes of law. The petitioner also claims violation of Article 311(2) of the Constitution of India as no charges were framed against the petitioner, nor any enquiry was held. He was not given reasonable opportunity of being heard. It is further pleaded that the discharge certificate issued by the Army authority clearly shows that he had been discharged at his own request, therefore, the discharge would not be a bar for recruitment in the BSF. In fact, the petitioner had nothing to suppress being an Ex-serviceman would not have been of any disadvantage to the petitioner at the time of recruitment. Therefore, the petitioner has not taken any undue advantage by not disclosing that he had been earlier discharged from the Army on compassionate ground.

2. The respondents have filed the written statement. It is stated that the writ petition is liable to be dismissed on the short ground that it involves disputed questions of fact. The petitioner has concealed the material fact which he was bound to disclose. The petitioner wilfully concealed the fact of his previous service and discharge from the Indian Army, at the time of his enrollment in the B.S.F. He wilfully absented himself from duty in order to avoid dismissal proceedings against him. He was given full opportunity to defend his case and intentionally neither came forward to defend his case nor joined the duty. It is further stated that the petitioner has tried to mislead this Court by quoting irrelevant provisions of B.S.F. Act, 1968. In fact, the petitioner wilfully contravened the provisions of Sections 19 and 23 of the B.S.F Act, 1968. It is further stated that the respondents have rightly terminated the services of the petitioner under Rule 177 of the BSF Rules, 1969 read with Section 11(2) of the B.S.F. Act, 1968. The petitioner served in the B.S.F. only for a short period of. one year. He deserted B.S.F. wilfully w.e.f. 9.1.1988. Thereafter, he did not join duty. Letters dated 10.01.1988, 18.1.1988 and 21.1.1988 asking him to join the duty were totally ignored by the petitioner. It is denied by the respondents that there is any infringement of any statutory provisions as pleaded by the petitioner. It is stated that the petitioner has concealed the material facts from the Court, and therefore, does not deserve any relief. The respondents came to know only in the month of May, 1987 that petitioner had earlier served in the Army. A reference was made to Record Office, Bengal Engineering Group, Roorkee, asking for the necessary information, on 9.6.1987. By letter dated 29.10.1987, the Army authorities confirmed that the petitioner was enrolled in the Army on 27.3.1985 and discharged from service on 1.1.1986.

3. I have heard the learned counsel for the parties at length and perused the relevant record which has been produced in Court by the respondents.

4. Ms. Chatrath has vehemently argued that the order (Annexure P-2) is founded on the misconduct of the petitioner, and the same could not have been passed without complying with the rules of natural justice. She has submitted that the respondents were duty bound to issue a charge-sheet to the petitioner and to give him an opportunity to defend the charges. Since no such opportunity had been given, the impugned order is liable to be quashed on this short ground. In support of this submission, learned counsel has relied on a number of judgments.

5. Mr. Guglani, learned counsel appearing for the respondents has submitted that the petitioner was given an opportunity to explain by letters dated 10.1.1988, 18.1.1988 and 21.1.1988. The petitioner did not respond to the letters. Therefore, he cannot complain that due opportunity of hearing was not given to him. Learned counsel has also submitted that the petitioner had deliberately not answered question No. 9(a) in which the candidate was specifically asked whether he is in Government service or has been in Government service, The candidate was also required to state full particulars and the reasons for discharge and to confirm that he was never dismissed from any government service. The candidates were warned in the recruiting form that after enrollment, if it is found that the candidate has given a wilfully false answer to any of the first 12 questions, he will be liable to be punished in accordance with the B.S.F. Act, 1968. The petitioner deliberately did not disclose about the discharge from the Army on compassionate ground. This fact came to the knowledge of the respondents and had to be verified by making necessary enquiries from the Army authorities. When the petitioner came to know that the respondents had received information, he absented himself from duties without leave, According to the learned counsel, the conduct of the petitioner would fall much below the discipline required by a Constable in the BSF.

6. I have considered the submissions made by the learned counsel for the parties. The petitioner was enrolled in the Army on 27.3.1985. He was discharged on his own request on 1.1.1986. He had served only 9 months and three days. His character could not be assessed as he had less than one year service at the time of discharge. The petitioner was duty bound to disclose that he had been discharged from the Army. Even if he had been discharged at his own request, Question 9(a) was required to be specifically answered. The aforesaid question was as under"-

"9. XXX XXX XXX XXX

(a) Are you in Government service or have you been a Government servant? If so, state full particulars and the reason for discharge and confirm that you were never dismissed from any government service?

7. A Constable in the BSF is required to maintain a high degree of discipline. Only men of honesty and integrity can be permitted to serve in such a disciplined force. The petitioner deliberately concealed the material facts at the time of his recruitment. The natural consequences of not answering any of the questions truthfully, were given on the first page of the enrolment form where it was provided as under:-

"You are warned that if after enrolment, it is found that you have given a wilfully false answer to any of the first twelve of the following questions, you will be liable to be punished provided in the Border Security Force Act, 1968."

8. The petitioner totally ignored the warning. In such circumstances, it would be difficult for this Court to hold that any injustice has been done to the petitioner. This apart, the petitioner was only a temporary Constable. The respondents had the power to simply discharge the petitioner from service. However, as noticed earlier, Ms. Chatrath has contended that if the order of discharge is founded on a misconduct, the same cannot be passed, without complying with the rules of natural justice and the procedure prescribed under the relevant rules for holding a departmental enquiry. This undoubtedly, is a settled proposition of law. It has been so held in a number of cases.

9. In the case of Parshotam Lal Dhingra v. Union of India, A.I.R. 1958 Supreme Court 36. The Supreme Court has laid down.

"28. ...............In short, if the termination of service is founded on the right flowing from contract or the service rules, then prima facie the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with......"

10. In the case of Anoop Jaiswal v. Government of India and Anr., 1984(1) S.L.R. 426, considering the implication of an innocuous order of discharge of a probationer, the Supreme Court observed as follows:-

"12. It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct, it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee."

11. In the case of Jarnail Singh and Ors. v. State of Punjab and Ors., 1986(2) S.L.R. 278, the Supreme Court has held as under:-

"31. In the instant case as we have stated already hereinafter that though the impugned order was made under the camouflage or cloak of an order of termination simpliciter according to the terms of the employment, yet considering the attendant circumstances which are the basis of the said order of termination, there is no iota of doubt in inferring that the order of termination had been made by way of punishment on the ground of misconduct and adverse entry in service record without affording any reasonable opportunity of hearing to the petitioners whose services are terminated and without complying with the mandatory procedure laid down in Article 311(2) of the Constitution of India."

12. In the case of Rajinder Kaur v. Punjab State and Anr., 1986(3) S.L.R. 78, the Supreme Court relying on all the earlier judgments mentioned above, observed as follows:-

"13. On a conspectus of all these decisions mentioned hereinafter, the irresistible conclusion follows that the impugned order of discharge though couched in innocuous terms, is merely a camouflage for an order of dismissal from service on the ground of misconduct. This order has been made without serving the appellant any charge-sheet, without asking for any explanation from her and without giving any opportunity to show cause against the purported order of dismissal from service and without giving any opportunity to cross-examine the witnesses examined, that is in other words the order has been made in total contravention of the provisions of Article 311(2) of the Constitution. The impugned order is therefore, liable to be quashed and set aside. A writ of certiorari be issued on the respondents to quash and set aside the impugned order dated 9.9.1980 of her dismissal from service. A writ in the nature of mandamus and appropriate directions be issued to allow the appellant to be reinstated in the post from which she has been discharged. The appeal is thus allowed with costs. The authorities concerned will pay all her emoluments to which she is entitled to in accordance with the extent rules as early as possible in any case not later than eight weeks from the date of this judgment."

13. The aforesaid ratio of the judgments, however, are not applicable in the facts and circumstances of the present case. In this case, the petitioner deliberately withheld information from recruiting agency which he was required to give. He deliberately omitted to give an answer to question No. 9(a). This withholding of the information was prior to the recruitment of the petitioner on the post of temporary Constable. In all the cases mentioned above, the Supreme Court was dealing with misconduct which had been committed by the government servants, after they had been appointed either on ad hoc basis (Jarnail Singh's case), officiating basis (Parshotam Lal Dhingra's case), on probation (Anoop Jaiswal's case and Rajinder Kaur's case). None of the cases pertain to withholding of relevant information at the time of enrolment. Therefore, the ratio of the aforesaid cases would not be applicable to the present case. The petitioner was discharged from the Army at his own request on compassionate ground, after having served 9 months and 3 days. The dishonest conduct of the petitioner at the time of enrolment was discovered by the respondents in May, 1987. Even then the petitioner did not come forward to give his explanation, rather he absented from duty. The respondents, therefore, sent three separate letters to the petitioner inviting him that unless he joins duty, he is liable to be dismissed from service. From a perusal of the record, it becomes apparent that the respondents noticed the absence of the petitioner. On 9.1.1988, it was reported that the petitioner who was undergoing basic training in C Coy had been found absent at PT. A search was made in the STC area, but he could not be located. On 10.1.1988, the petitioner was sent a letter directing him to join duty. On 18.1.1988, he was sent the following letter:-

"To Pawanjit Singh S/o Sh. Ujagar, Singh, Vill. & PO: Jangpur Distt. Ludhiana (Pb.) Sub:- Absenting himself without leave.

You are absenting from this STC with effect from 9.1.88 without any reasonable cause. You are directed to join duty forthwith failing which necessary disciplinary action will be taken against you as per BSF Act and rules.

Sd/- Commandant STC BSF Kharkan Camp Dated: 18.1.88"

Thereafter, on 21.1.1988, again the petitioner was sent a registered letter as follows:-

"Sub:- Absenting himself without leave.

Ref. this office letter No. Estt/STC/Disc/88 dated 11.01.88.

2. You are evading to face disciplinary action of dismissal from service for suppressing facts during enrolment, as such I propose to dismiss you from service. If you have anything to state in your defence you may do so. If no reply is received by 30.1.88 you will be dismissed from service.

Sd/- K.S. Walia Commandant STC BSF Kharkan Camp Dated: 21 Jan'88"

14. From the above, it becomes quite evident that the petitioner had been clearly informed of the gist of the charge against him. Firstly, he was told that in case he fails to join duty, necessary disciplinary action will be taken against him. When there was no response, he was told that it is proposed to dismiss him from service. He was also told that if he has anything to slate in his defence, he may do so. He was given time to send his reply by 30.1.88. The petitioner failed to join, and therefore, the order of dismissal was passed. On these facts, it would be difficult to hold that no opportunity was given to the petitioner to defend himself. Therefore the judgments of the Supreme Court quoted above, would be of no assistance to the petitioner.

15. Ms. Chatrath has vehemently argued that non-disclosure of the earlier discharge by the petitioner was not a relevant fact. Therefore, no action could have been taken against the petitioner. Learned counsel has even submitted that in fact being an Ex-serviceman would have been a factor in favour of the petitioner. Even if the petitioner had been discharged from the Army at his own request, he would fall within the definition of Ex-serviceman. In support of the submission, learned counsel has relied on a judgment of the -Supreme Court in the case of Sansar Chand Atri v. State of Punjab and Anr., 2002(3) S.L.R. 310. In that case, the appellant had submitted an application to the Punjab Public Service Commission for appointment against one of the posts reserved for ex-servicemen. The competitive examination for recruitment to the post was to commence from 21.12.1998. The appellant was informed by the Commission that he could not be considered as Ex-serviceman as he had been discharged from Indian Army at his own request. Considering the definition of "Ex-serviceman" as contained in the Punjab Recruitment of Ex-Servicemen Rules, 1982 as amended from time to time, the Supreme Court observed as follows:-

"9. It is relevant to note here that in the certificate issued by the Ministry of Defence, the appellant has been described as an ex-serviceman. The provision for reservation in the service rules is meant for the benefit of ex-servicemen. The purpose is to provide them with suitable jobs in civil services so that they may not face difficulty in adjusting themselves in civil society after leaving the defence service. In the context of the scheme of the provisions, the provisions in the rule should be interpreted in a purposive and reasonable manner so that the intent and purpose of the provision is served. From the provisions in the rules, it appears that a distinction has been made by persons who are released from the army on ground of medical disqualification or on ground of inefficiency or misconduct. Such distinction is reasonable keeping in view the purpose of reservation of posts made under the rules. All the ex-defence service personnel are to be treated as a class separate from other candidates for the purpose of offer of jobs and no differentiation or discrimination can be made amongst them unless such difference are real and substantial. Testing the provisions in this context, we are of the view that a person in the army who has earned pension after putting in the requisite period of service before leaving the army whether at his own request or on being released by the employer on any ground should be treated as an ex-serviceman who has retired from the army. Such treatment is to be meted out to all such persons irrespective of whether the nomenclature used is "relieved" or "discharged" or "retired". If the contention raised on behalf of the service commission and the state government that since the appellant has been discharged from the army at his own request, he cannot be treated as an ex-serviceman, is accepted then it will create a class within a class without rational basis and, therefore, becomes arbitrary and discriminatory. It will also defeat the purpose for which the provision for reservation has been made."

16. These observations are of no relevance in the present case. The petitioner is not claiming the benefit of being an ex-serviceman for recruitment in BSF. He never applied against a post which was reserved for ex-serviceman. Rather he concealed the fact that he is an ex-serviceman. The petitioner left the Army after rendering service of 9 months and 3 days. Therefore, he has not earned any pension from the Army after putting in the requisite period of service before leaving the Army whether at his own request or being released by the Army. In my opinion, the observations of the Supreme Court are not applicable to the facts and circumstances of the present case.

17. Not only in law, I am of the considered opinion that the petitioner does not deserve any relief even on equitable grounds. The petitioner may or may not have been selected if he had made a full disclosure at the time of recruitment. It is possible that if he had disclosed that he had earlier been discharged from the Army at his own request, he may have found it difficult to explain as to why he would subsequently want to join BSF which is a Para-military Force. Whatever was his compulsion in not continuing in Army service, would, in all probabilities, also apply while he was serving in the BSF. Such a person would hardly be suitable for serving in a disciplined force. I am of the considered opinion that the petitioner is not entitled to any discretionary relief under Articles 226/227 of the Constitution of India. The petitioner absented from duty when he came to know that the respondents had discovered his earlier discharge from the Army on compassionate ground. The respondents could have taken action against the petitioner for desertion. However, the respondents seem to have adopted a rather lenient approach. A perusal of the order of dismissal shows that although the petitioner has been dismissed from service, his absence period w.e.f. 9.1.88 to 2.2.88 has been regularised as EOL. In view of the above, I am of the considered opinion that no manifest injustice has been caused to the petitioner.

Consequently, I find no merit in the writ petition and the same is hereby dismissed.

No costs.