GUL MOHD SHEIKH Vs. COMMANDANT HQ 45 BN B S F

JUDGEMENT

(1.) THE petitioner has averred that he was working as Upper Division Clerk in 45 Bn. B.S.F. which post was combatised as that of Sub Inspector. In the first week of December 1971, the wife of the petitioner was taken ill at kupwara and he proceeded on leave. The illness of the petitioners wife took a serious turn and the petitioner had to leave for Srinagar for her treatment. The petitioner left an application for leave and proceeded to Srinagar. After recovery of his wife from illness the petitioner tried to join the Battalion on his post but was not allowed to do so. Ultimately order No. 2201/2ESTT (Annexure A) was issued under Rule 27 of B.S.F. Rules and the petitioner was retired from service. The above mentioned rule, it is submitted does not authorise the Commandant respondent . to retire the petitioner but only gives him right to recommend for his retirement which ultimately rests with the Dy. Inspector General to pass appropriate orders thereon. This power however, can be exercised by Dy. Inspector General (B.S.F.) after asking the petitioner to show cause and after holding enquiry in the matter. The Rule, it is submitted, was not observed in letter and spirit with the result that the order of retirement of the petitioner is clearly void and against the rules, and therefore not sustainable. The power exercisable by any of the officers mentioned in Rule 27 could be exercised under Rule 28 of the B.S.F. Rules by any officer superior to one mentioned in Rule 27. The order is also bad in law and without jurisdiction as the same was passed not by the Dy. Inspector General but by the respondent -Commandant who had no authority to pass the same. The provisions of B.S.F. Act and Rules made thereunder could not be involved for imposition of punishment, retirement or dismissal which has been imposed on the petitioner, as the petitioner was governed by Central Service Rules. The petitioner made a number of representations to the higher authorities but to no effect. The discharge certificate issued by the respondent conveying therein that the petitioner has been dismissed from service on the ground that he was found undesirable casts a stigma on the petitioner. The order of dismissal could not be made without affording an opportunity to the petitioner and without holding an enquiry in this behalf. Therefore the discharge certificate is void, illegal and deserves to be quashed. The petitioner therefore prays that a writ of certiorari be issued quashing the impugned order of retirement and also the order of dismissal as evidenced by the discharge certificate as the same are void and without jurisdiction and further that it be also declared that the petitioner continues to be in service.

(2.) IN his further pleas the petitioner has by means of an application made an averment of the fact that according to the orders of the Director General Border Security Force, Ministry of Home Affairs Government of India the combatisation of the ministerial staff has been only made to the extent of discipline, ration money and uniform allowance, while in respect of other matters they are governed by the Rules as are applicable to them before combatisation which clearly means that the petitioner is governed by Central Civil Service Rules. In view of this the provisions of the B.S.F. Act and Rules could not be invoked for imposition of punishment or retirement or dismissal in the case of the petitioner.

(3.) IN his reply affidavit Lt. Col. Ajmer Singh Commandant HQ 45 Bn, B.S.F. Kupwara has affirmed that the petitioner was undoubtedly an Upper Division Clerk in the said Bn. in the rank of Sub -Inspector post. It is, however denied that the petitioner applied for eave at any time on account of the alleged illness of his wife. In fact the petitioner deserted from the B.S.F. when Indo -pak war was on, and as such committed an offence under the B.S.F. Act, triable by General Security Force Court. It is denied that any order dated 22 -12 -1971 was issued by the Battalion Actually order No. 2201/2/Estt. dated 27 -12 -1971 was issued. Petitioner never tried to report back to duty. He did not try to join the Battalion after his desertion. It was not a fact that the order of retirement was received) by the petitioner very recently. It is an attempt by the petitioner to justify gross laches in filing the petition. As the petitioner did not join service he was considered to be unsuitable to be retained in service and action under B.S.F. Rules was taken. It is not a fact that the respondent has retired the petitioner. As a matter of fact the Commandant respondent recommended the retirement of the petitioner to the Dy. Inspector General of B.S.F. and the latter passed the order of retirement of the petitioner. The Dy. Inspector Central, however, considered it impracticable to give an opportunity to the petitioner which he was justified to do in the above mentioned circumstances and also in view of the fact that the petitioner had deserted when the war was on. The D.I.G. B.S.F., it is affirmed, is competent to exercise powers under Rule 27 of the B.S.F. Act. It is further affirmed that the petitioner being a member of the force was therefore governed by the provisions of B.S.F. Act and Rules made thereunder. It is denied that any representation was received by the respondent or by the other higher authorities from the petitioner. It is, however, admitted that a certificate of discharge was issued to the petitioner, but his order of retirement had come into effect by virtue of the order of the Dy. Inspector General of B.S.F. No. 1502/384/A dated 22 -12 -71. The issue of discharge certificate, it is submitted, will not affect the validity of order of retirement of the petitioner passed by the Dy. Inspector General of B.S.F. It is denied that the petitioner has been dismissed from service but that he has only been retired from service. In view of this, it is submitted, that the petitioner is not entitled to any relief whatsoever.