YASODHAR KAMAT versus THE DIRECTOR GENERAL, BORDER SECURITY FORCE AND OTHERS on 8 January 2020

1. Leave granted.

2. This appeal arises from a judgment of a Division Bench of theHigh Court of Judicature at Patna dated 11 August 2016. While allowinga Letters Patent Appeal, the Division Bench reversed the judgment of alearned Single Judge by which the dismissal of the appellant from servicewas set aside and the proceedings were remitted back to the DirectorGeneral of the Border Security Force[1] to examine the quantum ofpunishment afresh, subject to the caveat that the alternate punishmentto be imposed should not either be a dismissal or removal from service.

3. The appellant was enrolled as a constable in the BSF on 2January 1990. He had 17 years of service by the date of the incident.The appellant applied for leave from 10 February 2007 to 1 March 2007,which was sanctioned. The cause of misconduct arose because herejoined his duties on 4 April 2007. On 16 April 2007, he was chargedwith a misconduct under Section 19 (b) of the BSF Act 1968. Followingthe convening of a Summary Security Force Court, the appellant wasdismissed from service. A statutory petition filed by the appellant wasdismissed by the Director General, BSF on 13 June 2007.

4. The High Court was moved under Article 226 of theConstitution. On 29 July 2013, a learned Single Judge came to theconclusion that the dismissal of the appellant from service was contraryto law and accordingly the proceedings were remitted back forreconsideration of the quantum of punishment. This order of the learnedSingle Judge has been reversed by the Division Bench in appeal.

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A5. From the order of the Director General, BSF on the statutorypetition, it is evident that the appellant had contacted the Unit Adjutantfor extension of leave on the ground that his niece had been abductedand that other pressing family circumstances necessitated an extension.This aspect has been recorded in the order dated 13 June 2007 in thefollowing terms:B

“It is on record that the petitioner while on leave had contactedthe Unit Adjutant for extension of leave for searching his niecewho was reportedly kidnapped. Shri V S Shekhawat, DC / Adjutantdeposed in his statement in the ROE that the petitioner did talk tohim on mobile for extension of leave and he in turn asked theCpetitioner to apply for extension of leave through telegram for aweek or so.”

6. Moreover, the learned Single Judge, in the course of hisjudgment, extracted the oral statement of the appellant which had beennoticed by the appellate authority. The oral statement was to the followingDeffect:

“4……. “I was granted 15 days CL w.e.f. 10-02-07 to 1-3-07 dueto my niece kidnapping. However, I had requested to my OffgCoy Comdr to grant 30 days EL. But I was granted 15 days CLonly. When I reached at my native place, I tried my best to findEout my niece; later on I came to know that she is staying in Delhi.I left for Delhi on 15- 02-07. I had given information about thekidnapping of my niece to Unit Adjutant Shri V S ShekhawatDy Comdt on Mobile on 25, 26 Apr 07 and requested him forextension of leave. He told me that your CL will be converted intoFEL if you have not availed EL of this year. On 21-03-07, I sent aletter to Bn HQ regarding extension of leave. I could recover myniece on 27-02-07. It stayed 6 to 7 days at Delhi at the residenceof my relatives with my niece. I reached at my home on 08 Marwith my niece. After settled down this problem I sent her to herhusband’s house on 17-03- 07. On 25-03-07, the stomach operationGof wife of my nephew was conducted. Medical documentsalongwith discharge certificate I have already deposited to thisHQ alongwith my application. There was no responsible personpresent at my home to settle down this problem. However, Ioverstayed only after getting assurance of extension from leaveHto Unit Adjutant.”

7. The position which emerges then is that the appellant hadcontacted his Unit Adjutant for extension of leave. The Division Benchobserved that the appellant had submitted an application for extension ofleave belatedly and that as a member of the disciplined force, his conductcould not be condoned. The appellant had furnished an explanation forseeking a further extension. That explanation has not been rejected asbeing either false or incorrect. The appellant had seventeen years ofservice. Undoubtedly, the record indicates that in the past he waspenalized for being unauthorized absence without leave. His past conduct,in our view, would militate against the grant of an order of reinstatementin service which we decline to do. In fairness, we also note that this isnot the submission of the appellant before the Court. However, havingregard to the fact that the appellant had nearly seventeen years of service,we are of the view that, in the peculiar facts and circumstances of thecase, an appropriate view needs to be taken so as to facilitate the appellantbeing granted pension after completion of twenty years of pensionableservice. This is in view of the fact that the imposition of the penalty ofdismissal would be disproportionate having regard to the material whichhas emerged from the record. We order and direct that instead of and insubstitution of an order of dismissal from service, the appellant shall betreated as having been discharged from service with effect from thedate on which he completes pensionable service of twenty years.However, the appellant will not be entitled to any back wages betweenthe date on which he was originally dismissed and the date on which hecompletes the requirement of pensionable service. The arrears of pensionto which the appellant is entitled shall be paid to him within a period ofthree months from the date of receipt of a certified copy of the presentorder.

8. The appeal is allowed in the above terms. There shall be noorder as to costs.

Divya Pandey

Appeal allowed.

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