The Jammu and Kashmir and Ladakh High Court upheld an order imposing the punishment of compulsory retirement upon a BSF constable while observing that merely doing good work on a few occasions does not necessarily mean that the employee is very good and useful for the organization and cannot be retired prematurely.

The petitioner, who was working as a Constable with the respondents, was retired from service with effect from July 31, 2006, under Rule 26 of the BSF Rules 1969 by the Commandant vide the impugned order.

The Single Bench of Justice Rajnesh Oswal said, “Equally true is that the petitioner was rewarded with 15 cash awards and those 15 cash awards were awarded to the petitioner for his performance as Welder in the unit repair organisation. 15 cash rewards awarded to the petitioner on different occasions were for his good work on those occasions but the respondents have passed the order impugned taking into consideration the overall conduct and behaviour of the petitioner. Merely doing good work for few occasions does not necessarily mean that the employee is very good and useful for the organization and cannot be retired prematurely when in the estimation of employer, the employee is not fit person to be retained in service.”

Senior Advocate S. Kour represented the Petitioner while DSGI Vishal Sharma represented the Respondent.

Factual Background

The case as put up by the Respondent was that the petitioner on February 12, 2000 created a nuisance after consuming liquor while on duty and a written warning was issued to him to abstain himself from indulging in such activities and to be careful in future. However, he continued to consume liquor, and three punishments were awarded to him under Section 26 of the BSF Act of 1968.

The Board found the performance of the petitioner not up to the required standard and accordingly, as per recommendation of the Board, a written warning was issued to him to improve his conduct, failing which, necessary action would be taken against him for retirement on the ground of unsuitability under Rule 26 of BSF Rules.

The petitioner instead of improving his performance, continued with acts of indiscipline. He was sanctioned 30 days of Earned Leave ,but he reported after overstaying 34 days without leave. His leave was regularized by the competent authority, and he was given one more opportunity to improve his conduct, but he failed to prove himself to be a disciplined member of service and continued with his misconduct. He was retired from service with effect on the ground of unsuitability under Rule 26 of BSF Rules. Aggrieved thereby, he approached the High Court.

Arguments

It was the case of the Peitioner that the respondents could not have retired the petitioner as for meritorious services of the petitioner, he was awarded with cash rewards and further merely because of two punishments/adverse entries in the past five years, the order of retiring the petitioner could not have been passed by the respondents.

Reasoning

The Bench explained that as per Rule 26 of the BSF Rules, 1969, if a Commandant is satisfied that an enrolled person is unsuitable to be retained in the force, the Commandant, may after giving such enrolled person an opportunity of showing cause (except when he considers it to be impracticable or inexpedient in the interest of security of the State, to give such opportunity), retire such enrolled person from the force.

“Though the respondents have raised a plea that the petition is premature, but rejecting the petition on the ground of availability of alternative remedy after 18 years would not be proper, as such, this Court deems it appropriate to consider the issues raised by the petitioner on merits”, the Bench said.

The Bench stated that though the respondents had taken into consideration only two punishments imposed upon the petitioner under Sections 19(b) and 20(c) of the BSF Act, the past conduct of the petitioner had also not been satisfactory, as he had been punished on four different occasions.

It was further explained by the Bench that the only requirement in terms of Rule 26 is to determine the unsuitability of the enrolled person to be retained in force. Once the competent authority has recorded its satisfaction based on some material about the unsuitability of the member of the force to be retained, the Courts cannot act as an appellate or revisional authority for the purpose of determining the sufficiency of the material leading to the formation of the opinion. It was opined that the courts are only concerned as to whether the procedure prescribed by law has been followed by the authorities in passing the order impugned or not and, further whether the same suffers from a fundamental misconception of law.

Finding that the impugned order was passed well within the parameters of law after affording due opportunity of hearing to the petitioner, the Bench dismissed the Petition.

Cause Title: Rattan Lal v. Union Of India & Ors. (Case No.: SWP No. 1441/2007)

Appearance:

Petitioner: Senior Advocate S. Kour, Advocate Manpreet Kour

Respondent: DSGI Vishal Sharma, CGSC Eishan Dadichi

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Jammu & Kashmir and Ladakh High CourtJustice Rajnesh Oswal

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.