‘Service to nation not favour’: Calcutta High Court backs BSF constable’s dismissal for ‘irresponsible’ overstay after leave

The order added that the members of the force are to maintain a definite style of functioning, and there cannot be any laxity. If a member suddenly absents himself from duty without any reasonable cause, then it becomes very difficult for the superior officer to regulate the members of the force, Justice Sinha said.

Absence from duty, dismissal

The petitioner was dismissed from BSF service in February 2023 as he failed to report to duty after his sanctioned leave expired on October 28, 2022. Despite three notices sent to his home in November 2022 and a physical visit by a BSF representative in February 2023, the petitioner failed to resume his duties.

The petitioner argued before the Calcutta High Court that the appellate authority lacked jurisdiction to decide or pass any order on the appeal preferred by him. Appearing for the petitioner, advocates Surajit Samanta, Sukhendu Banerjee, Balai Lal Sahoo and others argued that the documents relied upon by the authority, especially the proceedings of the Court of Inquiry, were never supplied to the petitioner.

They submitted that he was not aware of the contents of the said documents and alleged a violation of the principle of natural justice. Though the petitioner produced documents in support of not joining the BSF service immediately on completion of his leave period, the authority passed the order of dismissal in “hot haste”, it was contended.

They stated that the petitioner reported to BSF duty on February 4, 2023, as per his commitment made in writing, which was handed over to the representative of the authority who visited his house to enquire about his overstaying of leave, but the authority passed the order of dismissal on February 4, 2023, itself without allowing the petitioner to rejoin duty.

It was submitted that the authority did not comply with the provision of Rule 22 (2) of the Border Security Force Rules, 1969, which pertains to the dismissal or removal of persons other than officers on account of misconduct. It was contended that there was no occasion on the part of the authority to invoke the aforesaid provision to initiate proceedings against him.

Misconduct not expected in force: HC

• The petitioner ought to know that he is serving in a disciplined force, the Calcutta High Court pointed out.
• Any type of indiscipline or misconduct cannot be expected to be tolerated while serving in the force.
• The BSF has the responsibility to ensure the security of the citizens of this country at the borders. It has the solemn duty to prevent trans-border crime, smuggling, and unauthorised entry into and exit from the Indian Territory.
• From the performance of the petitioner as detailed in the affidavit of the respondents, it is clear that on repeated occasions the petitioner overstayed his leave.
• The authority regularised such leave on at least five occasions, the Calcutta High Court noted.
• He was also imposed punishment for being absent from work without any sanctioned leave. He even paid a fine for his absence.
• He was also awarded punishment to suffer rigorous imprisonment for 10 days on October 12, 2000, for remaining absent without any cause for 105 days and suffered further rigorous imprisonment for 14 days on 14th June, 2021, for overstaying of leave without sufficient cause for a total of 108 days.
• The figures mentioned clearly depict that the petitioner was not committed to his duty.
• He frequently and abruptly absented himself from work without sanction or any information.

‘Authority is not expected to wait for eternity’

• If leniency and sympathy are shown to a particular member of the force, then maintaining strict discipline among other members will become a challenge, the Calcutta High Court said.
• It is common knowledge that the members of the force are required to remain very alert and attentive in their duties.
• After perusing the records of the case, the authority came to a conclusive finding that his service in the force is undesirable.
• The submission of the petitioner that the authority acted in hot haste also cannot be accepted, the Calcutta High Court emphasised.
• How long is the authority expected to wait for him to rejoin? The authority is not expected to wait for eternity.
• He displayed a total lack of dedication in his job. Such a member is a burden to the force. The authority decided to dismiss him from service. The court does not find any error with the order of dismissal.

Court’s findings

• The petitioner was found absent from BSF duty by overstaying his leave period without any prior intimation or notice.
• As many as three opportunities were given to the petitioner to report to the BSF duty. He failed to respond to any of the notices issued to him, the Calcutta High Court pointed out.
• The authority even sent a representative to his recorded home address to ascertain why he did not report to duty.
• The petitioner disclosed by way of a handwritten communication addressed to the commandant that he would return on February 4, 2023.
• Despite such intimation, the petitioner did not report for duty on the said date. It was only then that the authority took a decision to dismiss him from service.

• The petitioner has averred in the writ petition that he went to join his BSF battalion on February 4, 2023, as promised, but he was not allowed to resume duty.
• There is no proof in support of such an averment of the petitioner, the Calcutta High Court said.
• The very first communication made by the petitioner after his dismissal is dated March 11, 2023, by which he prayed for reinstatement in service.
• The petitioner has averred that he received the order of dismissal dated February 4, 2023, on February 10, 2023, by post. The petitioner waited more than a month before seeking reinstatement in the BSF.
• The conduct of the petitioner suggests that he did not take any steps for an entire month from February 10, 2023, till March 11, 2023, the Calcutta High Court added.