*Directs reinstatement of petitioner with all benefits
Excelsior Correspondent
JAMMU, May 8: Emphasizing the paramount importance of adhering to procedural safeguards, particularly in cases concerning the dismissal of personnel from the Border Security Force (BSF), the Jammu and Kashmir and Ladakh High Court has reiterated the necessity of recording a satisfaction by the competent authority before resorting to Rule 22(2).
Rule 22(2) of the Border Security Force (BSF) Rules pertains to the dismissal or removal of personnel other than officers on grounds of misconduct. According to this rule, the competent authority can dismiss or remove an individual from service if they are satisfied that the trial by the Security Force Court is inexpedient or impracticable.
A bench of Justice Wasim Sadiq Nargal has clarified that In the absence of such satisfaction and a fair inquiry into the alleged misconduct, the dismissal order by taking recourse to the above Rule is violative of both the Border Security Force Act and established principles of natural justice.
The court made these observations in a case that stemmed from the dismissal of Naseer Ahmad, who contested an order dated February 4, 2008, which terminated his service without proper procedure.
Advocate Sofi Manzoor appearing for the petitioner challenged the dismissal order on grounds of violation of natural justice, specifically citing non-receipt of a proper show-cause notice and the absence of a fair hearing. He argued that the respondents ought to have exercised the power under Section 19 of the Act of 1968 with particular reference to Section 19 (b) of the Act of 1969 which deals with the subject of overstaying leave without sufficient cause.
“Without resorting to Section 19 of the Act, the respondents could not have exercised the power under Rule 22 of the Rules of 1969, which deals with the dismissal or removal of a person other than officer on account of misconduct”, he submitted.
On the other hand, Advocate Hakim Aman Ali appearing for the respondents argued that Ahmad had been granted earned leave but failed to rejoin duty after its expiry, leading to his dismissal. The respondents maintained that all requisite procedures, including the issuance of show-cause notices and the initiation of a Court of Inquiry, were duly followed.
Scrutinising the record of the case, Justice Nargal observed, “show-cause notice issued to Naseer Ahmad lacked essential documents and failed to provide a fair opportunity for defense, thus violating the principles of natural justice”, adding “a perusal of the show cause notice and material on record, would reveal that along with the show cause notice, no other documents were annexed or attached thereto have been served upon the petitioner. This is indeed a violation of the principles of natural justice to the detriment of the petitioner”.
Examining the legal framework governing such cases, the High Court highlighted the provisions of Rule 22(2) of the BSF Rules, which permit dismissal on grounds of misconduct, provided the competent authority is satisfied that the trial by the Security Force Court is impracticable or inexpedient.
“Resorting to administrative action instead of the standard trial by the Security Force Court is an exceptional measure and therefore, it places a heightened obligation on the authorities to meticulously apply their judgment and duly document their satisfaction as mandated by the Rules”, High Court said and clarified that the process of recording such satisfaction, following a thorough consideration of the matter, should not only be evident but also clearly reflected in the record.
“In the present case, no satisfaction as required under the rule, has been recorded by the respondents either in the impugned order or show-cause notice and it is only the satisfaction that is to be arrived at by the respondents while exercising powers under said rule”, High Court said, adding “to substantiate the petitioner’s alleged misconduct, an inquiry must be conducted, during which the petitioner is entitled to receive all relevant materials and documents and afforded an opportunity to be heard. However, from the perusal of the record, it is clear that no such enquiry has been held by the respondents into the alleged misconduct of the petitioner which was the mandate under Rule 22(2) of the Rules”.
“Therefore, the respondents by no stretch of imagination can construe petitioner’s overstaying leave “simpliciter” as misconduct without putting him to trial under Section 19 or without conducting an enquiry under Rule22(2)”, the High Court said, adding “in the absence of such satisfaction and a fair inquiry into the alleged misconduct, the dismissal order is violative of both the Border Security Force Act and established principles of natural justice”.
With these observations, High Court quashed the impugned order of dismissal and directed the respondents to reinstate the petitioner with all consequential benefits.
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