No One Can Be Condemned Unheard [CASE LAW]

Border Security Force Act, 1968 - Section 62 - Petitioner was dismissed from service without affording him proper opportunity of being heard - In case, the petitioner had filed mercy petition, minimum that was required was intimation of date of hearing to him so as to enable him to appear before the competent authority and present his case. The same having not been done, it has resulted in miscarriage of justice.


Whatever issues the petitioner had raised explaining his absence from duty were required to be considered properly and adjudicated upon by the higher authority, who had been vested with the power to consider the same in terms of Rule 28A of the Rules. If the order passed by the authority in terms of the petition filed by the petitioner under Rule 28A of the Rules is considered, the same cannot stand in judicial scrutiny and will have to be set aside, however, the same will not be entitling complete relief to the petitioner at this stage as the matter will have to be remitted back for fresh consideration. Ordered accordingly.

Every order passed by quasi-judicial authority or even an administrative authority affecting the rights of parties, must be a speaking order. 

It must not be like the “inscrutable face of a sphinx”. The superior court cannot effectively exercise its power of judicial review unless in the order impugned, facts and reasons have been stated in detail. Merely giving an opportunity of hearing is not enough. Wherever an order can be subject to appeal or judicial review, the necessity to record reasons is even greater. It ensures that the decision is not a result of caprice, whim or fancy but was arrived at after considering the relevant facts and the law. It enables an aggrieved party to demonstrate before the higher court that the reasons on which his claim has been rejected, are erroneous. It operates as a deterrent against possible arbitrary action by any authority invested with judicial power. The aim is to prevent unfairness or arbitrariness in reaching conclusions. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. The faith of the people in administrative authorities can be sustained only if they act fairly and dispose of the matters before them by well-considered orders.

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

Coram: Hon’ble Mr. Justice Rajesh Bindal, Judge

SWP No. 192/2003 (O&M)

Date of Judgment: 30.01.2019

Janak Raj v. Union of India and ors

Appearance: For the Petitioner(s) : Mrs. Surinder Kour, Sr. Advocate with Ms. Priyanka Gupta, Advocate. For the Respondent(s) : Mr. Suneel Malhotra, CGSC.

Rajesh Bindal,J.

1. The petitioner has approached this Court praying for quashing of order dated 24/26.1.2000 issued by the Commandant, 53 Bn, Border Security Force, dismissing the petitioner from service and order dated 27.7.2000 passed by respondent no. 2, rejecting the appeal filed by the petitioner and also for quashing the departmental inquiry proceedings and the charges framed against him.

2. Mrs. Surinder Kour, learned Senior Counsel appearing for the petitioner submitted that the petitioner was appointed as a Cook with the Border Security Force on 7.4.1995. His designation was changed to that of Sweeper on 22.5.1995. While he was availing his annual leave in January, 1999, he was falsely implicated in FIR No. 362 dated 27.3.1998, registered at Police Station Sadar, Gurgaon, Haryana. As is evident from the judgment of the learned trial Court in the aforesaid criminal case, the alleged incident took place on 12.3.1998. After availing the leave, the petitioner re-joined his duty. He was not even aware of the pendency of the case against him. When the Unit of the petitioner came to know of the case against the petitioner, he was directed to proceed on leave and to face the criminal case and join back only after clearance therein. The petitioner filed leave application. When the petitioner approached the Unit in October, 1999 to allow him to join duty, the same was refused. Taking his absence from duty from 23.6.1999 to 21.8.1999 and further from 23.8.1999 to 23.8.2000, the petitioner was dismissed from service without affording him proper opportunity of being heard. The criminal case was got registered by the neighbours, which ultimately was found to be false and the same resulted in acquittal of the petitioner and other accused vide judgment dated 15.3.2000. Immediately after the petitioner came to know about the order of dismissal, he preferred statutory appeal, which was dismissed by passing a totally cryptic and non-speaking order on 27.7.2000.

3. Assailing the aforesaid order, Mrs. Surinder Kour, learned Senior Counsel appearing for the petitioner submitted that Section 62 of the Border Security Force Act, 1968 (for short, 'the Act') provides that in case of absence from duty for a period of thirty days, a Court of Inquiry shall be appointed. In the case of the petitioner, Court of Inquiry was not appointed. Procedure as prescribed for in Rules 170 to 176 of the Border Security Force Rules, 1969 (for short, 'the Rules'), provide in detail as to how inquiry is to be conducted. Rule (2) 22 of the Rules enables the competent authority to terminate any employee where it is satisfied that trial of such person is inexpedient or impracticable.

4. It was further argued that non-supply of relevant documents to the petitioner before dismissal is fatal. Further the punishment awarded is totally disproportionate to the guilt, even if it is presumed to be proved. The petitioner had unblemished record of service. The petitioner was falsely implicated in the FIR more than one year after the alleged incident took place. The order of termination had been passed by the Officiating Commandant, hence, by an incompetent authority. There is nothing on record to suggest that any of the notice sent through the Superintendent of Police was ever served upon the petitioner. There is no proof produced on record for the same. Before declaring an employee a deserter, the procedure as prescribed under the Act has to be followed.

5. In support of the arguments, reliance was placed upon judgment of Hon'ble the Supreme Court in Union of India and others vs Giriraj Sharma AIR 1994 Supreme Court 215, and judgments of this Court in LPASW No. 456 of 2002 Union of India through Frontier HQ BSF Paloura camp vs Manjit Singh, decided on 12.8.2005,Altaf Hussain Mir vs Union of India and others 2010(11) S. L. J. 843, Union of India and others vs Babu Singh 2013(2) J. K. J. 493, Union of India vs Shammi Kumar and another 2015(1) S. L. J. 688, LPASW No. 140 of 2003 Union of India vs Satya Pal Singh, decided on 25.8.2015, and SWP No. 1242 of 2004 V. Nageswar Rao vs Union of India and others, decided on 29.4.2016.

6. In response, learned counsel for the respondents submitted that the petitioner absented from duty from 23.6.1999 to 21.8.1999, joined duty on 21.8.1999 but again absented from 23.8.1999 to 24.1.2000. Number of communications were sent to the petitioner starting from 24.8.1999 onwards to be served through Senior Superintendent of Police, Gurgaon, however, the petitioner never responded to any of them. Direct communications were also sent through registered post. The petitioner neither joined his duties nor applied for leave. Acknowledgment receipt of one of the registered letter has been attached as Annexure R-8. Letter dated 2.12.1999 was delivered to one 'Suresh'. As pleaded by the petitioner, he remained in custody from 31.8.1999 to 20.9.1999 and thereafter released on bail but never reported back in the Unit. Thereafter, he was again arrested on 12.1.2000 and remained in jail till 21.1.2000, as he absented from court proceedings on one date of hearing.

7. He further submitted that Court of Inquiry is to be appointed under Section 62 of the Act but where an employee fails to respond and the inquiry becomes impracticable, Rule 22(2) of the Rules could be invoked. Notices were issued under Rule 22(2) of the Rules along with all the documents, which were never responded to by the petitioner. Order was passed on 24.1.2000. It was sent to the petitioner at the same address. Thereafter, the petitioner filed mercy petition under Rule 28A of the Rules, which was rejected vide order dated 27.7.2000.

8. Regarding competence of the authority, learned counsel for the respondents referred to definition of Commandant as provided in Section 2(f) of the Act.

9. The submission is that under these circumstances when it is the admitted case of the petitioner that he was absent from duty because of his involvement in a criminal case, the competent authority did not have any other option but to take disciplinary action against the petitioner. There is no error in the orders passed. No interference is called for. In support of the arguments, reliance was placed upon judgment of Hon'ble the Supreme Court in Gouranga Chakraborty vs State of Tripura AIR 1989 SC 1321 and judgment of this Court in LPASW No. 5 of 2016 Muneer Hussain vs Union of India and others, decided on 6.6.2016 (Review Application filed in this case is stated to be pending).

10. The respondents have placed reliance upon the acknowledgment attached with reply as Annexure R-8. It is evident therefrom that the letter was served upon some 'Suresh', stated to be the family member of the petitioner, but it is categorically denied by the petitioner that there is any family member of the petitioner in the name of Suresh.

11. Heard learned counsel for the parties and perused the paper book.

12. A perusal of the order dated 24.1.2000, vide which the petitioner was dismissed from service with effect from 24.1.2000, shows that the period of his unauthorised absence was shown from 23.6.1999 (F.N.) to 21.8.1999 (A.N.) and 23.8.1999 (F.N.) to 24.1.2000 (A.N.). The aforesaid period was also directed to be treated as dies non.

13. The petitioner belongs to District Gurgaon (now known as Gurugram) in Haryana. As is evident from the material on record, he was posted with the Unit in Jammu and Kashmir. The stand taken by learned counsel for the petitioner regarding his absence from the duty was his false implication in a criminal case got registered by his neighbours in the village. It is claimed that the petitioner was availing his annual leave in January, 1999 when he was falsely implicated in the case for which FIR No. 362 dated 27.3.1998 was registered and the incident is stated to be of 13.3.1998. In that process, for some time the petitioner also remained in custody.

14. In the criminal case, all the accused including the petitioner were acquitted by the trial court vide judgment dated 15.3.2000 as all the prosecution witnesses denied that any such incident had occurred. They stated that the accused never caused any injuries to them.

15. Learned counsels for the parties have referred to various provisions of the Act and the Rules framed thereunder in terms of which either Court of Inquiry was to be appointed or the same could be dispensed with, if it is impracticable. This Court is neither going into that aspect at this stage nor any opinion is being expressed on the factual aspect regarding service or non-service of various notices sent by the Unit to the petitioner as the same would be matter of evidence.

16. The case set up by the petitioner is that he has been condemned unheard, whereas the respondents' stand is that he failed to avail of various opportunities afforded. But the fact remains that after the order of dismissal was passed on 24.1.2000, which was admittedly received by the petitioner. He preferred a mercy petition to the competent authority. The same was rejected. The order was communicated to the petitioner vide letter dated 27.7.2000. The contents thereof are extracted below:-

“Ref. your petition dated 23.3.2000, regarding re-instatement in the BSF. 2. After carefully considering all the points in your application, all the facts and circumstances of case, the Competent Authority has rejected your petition/ appeal being devoid of merit. 3. In view of above, it is informed that your case has been closed and correspondence received, if any on the subject in future will not be entertained.”

17. A perusal of the aforesaid order shows that the same is totally non-speaking and cryptic. The stand taken by learned counsel for the petitioner in para 5 of the petition, that the order was passed without affording any opportunity of hearing to the petitioner, is not denied in the objections filed by the respondents. In the absence of brief facts and the reasons contained in the order, it is not possible for the next higher Court to appreciate as to what weighed with the authority in reaching the conclusion and as to whether there was application of mind by the authority or the order is arbitrary.

18. Hon'ble the Supreme Court in Kranti Associates Private Limited and another v. Masood Ahmed Khan and others, (2010) 9 SCC 496, while referring to various earlier judgments of Hon’ble Supreme Court on the issue, opined that every order passed by quasi-judicial authority or even an administrative authority affecting the rights of parties, must be a speaking order. It must not be like the “inscrutable face of a sphinx”. The superior court cannot effectively exercise its power of judicial review unless in the order impugned, facts and reasons have been stated in detail. Merely giving an opportunity of hearing is not enough. Wherever an order can be subject to appeal or judicial review, the necessity to record reasons is even greater. It ensures that the decision is not a result of caprice, whim or fancy but was arrived at after considering the relevant facts and the law. It enables an aggrieved party to demonstrate before the higher court that the reasons on which his claim has been rejected, are erroneous. It operates as a deterrent against possible arbitrary action by any authority invested with judicial power. The aim is to prevent unfairness or arbitrariness in reaching conclusions. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. The faith of the people in administrative authorities can be sustained only if they act fairly and dispose of the matters before them by well-considered orders. The aforesaid judgment was followed by Hon'ble the Supreme Court in ORYX Fisheries Private Ltd. v. Union of India and others, (2010) 13 SCC 427.

19. The aforesaid ground alone is sufficient to set aside the impugned order passed.

19. The grievance raised by learned counsel for the petitioner in the present case is also that before deciding his mercy petition, the petitioner was not given any opportunity of hearing by the competent authority. It cannot be disputed that no one can be condemned unheard. In case, the petitioner had filed mercy petition, minimum that was required was intimation of date of hearing to him so as to enable him to appear before the competent authority and present his case. Reference can be made to the judgments of Hon’ble the Supreme Court in Sayeedur Rehman v. State of Bihar, (1973) 3 SCC 333; Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405; Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664 and Indu Bhushan Dwivedi v. State of Jharkhand and another, 2010 (11) SCC 278. The same having not been done, it has resulted in miscarriage of justice. On this ground as well the order impugned deserves to be set aside.

20. Reference can also be made to judgment of Punjab & Haryana High Court in Ved Parkash and others v. State of Haryana and others, 2012 (4) PLR 741, wherein it has been observed that no one can be condemned unheard and M/s Mahindra and Mahindra Ltd. v. The Employees Provident Fund Appellate Tribunal and another, 2012 (4) PLR 189, where the Employees Provident Fund Appellate Tribunal, which has its principal seat at New Delhi, heard some cases by holding Camp Court at Chandigarh. However, proper intimation about the date of hearing was not given to the party concerned. The order was set aside and the matter was remitted back.

21. Whatever issues the petitioner had raised explaining his absence from duty were required to be considered properly and adjudicated upon by the higher authority, who had been vested with the power to consider the same in terms of Rule 28A of the Rules. If the order passed by the authority in terms of the petition filed by the petitioner under Rule 28A of the Rules is considered, the same cannot stand in judicial scrutiny and will have to be set aside, however, the same will not be entitling complete relief to the petitioner at this stage as the matter will have to be remitted back for fresh consideration. Ordered accordingly.

22. Under the circumstances, the case is remitted to the authority for re-consideration of the matter after affording opportunity of hearing to the petitioner by considering the stand taken by him in support of his plea challenging the order of his termination. While deciding the matter, it is expected that the competent authority shall consider the case by taking a holistic view and pass a speaking order. As the matter is quite old, it is expected that the needful shall be done within a period of three months from the date of receipt of copy of the order.

23. The writ petition is disposed of accordingly.