GOURANGA CHAKRABORTY versus STATE OF TRIPURA AND ANR.

Citation: [1989] 2 S.C.R. 271 · Decided: 31-03-1989 · Supreme Court of India · Bench: B.C. RAY · Disposal: Dismissed

Judgment (excerpt)

J 
GOURANGA CHAKRABORTY 
A 
v. 
STATE OF TRIPURAAND ANR. 
MARCH 31, 1989 
I 
IB.C. RAY AND S. RATNAVEL PANDIAN, JJ.] 
B 
\ 
Border Se(urity Force A.ct 1968/ Border Security Force Rules 
1969. Section 4(2), 10, 11, 19, 48 and-50/Rules 6 and 177 Constable-
Dismissed from service by commandant for overstaying leave-Validity 
of dismissal order-Whether Security Force Court-Should award 
punishment. 
c 
.k 
The appellant was enrolled as a Constable in the BSF and was 
serving as such since 1966. He was confirmed in the said post. In 1971, 
he was granted leave from October 25, 1971 to October 30, 1971 on 
account of the death of his father. As the Shrad ceremony could not be 
performed within the aforesaid time, and he was suffering from serious 
D 
illness he made an application requesting for extension of leave sup~ 
ported by a medical certificate. On December 12, 1971, the appellant 
received a communicatio'1 from the Commandant stating that as he was 
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absent without leave from October 31, 1971, that because of such 
absence without leave for a long period his further retention in service 
was undesirable, and that it wm;-proposed to dismiss him from service. 
E 
He was asked to submit his explanation against the imposition of this 
-
penalty. The appellant sent a telegram on December 21, 1971, hut 
without any redress. On January 5, 1972 he received an order of the 
Commandant informing him that he had been dismissed from service. 
-.., 
On January 10, 1972, the appellant again sent an application requesting 
that he may be permitted to join his service, but he was not allowed to 
F 
do so. The appellant preferred an appeal to the Inspector General, BSF 
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on February 1, 1972 but no relief was granted. 
The appellant after serving a notice under section 80 of the Code 
of Civil Procedure filed a civil suit for a declaration that the order of 
).;' 
dismissal from service was illegal and he was still in service. The res-
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pondent contested the suit and pleaded that the appellant was absent 
'' 
f~om 1duty from Qctober 31, 1971 without any leave at a critical time ·whe11 
India was at war with Pakistan, and that the Command_ant by his 11otice 
dated 15 December 1971 intimated that his retention in service was 
undesirable because of his absence. for a long period, that It• was given 
an opportunity to urge his defence which he did not avaif of by sending 
H 
271 
272 
SUPREME COURT REPORTS 
[1989] 2 S.C.R. 
any reply, and that the Commandant had therefore dismissed him from 
--l, 
A service by his order dated January 5, 1972. The Munsiff held that the 
appellant had been given a reasonable opportunity before the Com-
maudant dismissed him from service, and dismissed the civil suit. 
The appeal filed by the appellant was allowed by the Additional 
B District Judge and the suit was decreed. It was held that the order of 
r 
dismissal from service was illegal and bad, as the same was not made by ,)-
the Security Force Court and no such court had been constituted. The 
order passed by the Commandant under section 11(2) of the Border 
Security Force Act and read with rule 177 of the Rules could not there-
~ 
fore be upheld. It was further held that the order was bad as it was 
c 
contrary to the constitutional mandate embodied in Article 311 of the 
Constitution, as no opportunity of hearinl! was given, and the 
;.( 
procedural safeguards contained in Chapters VII to XI of the Border 
Security Rules were not followed. 
The High Court decreed the second appeal preferred by the 
D respondents, reversed the judgment and decree of the lower appellate 
court, and dismissed the suit. It was held that the order of dismissal of 
the appellant from service had been made in accordance with the 
powers conferred on the Commandant, BSF under the provisions of 
section 11(2) and (4) of the Border Security Force Act, 1968 read with 
+ .. 
rule 177 of the Border Security Forces Rules, 1969. It was further held 
E that this was an independent power conferred upon the Commandant 
apart from the power conferred upon the Security Force Court under 
section 28 for imposition of the punishment for dismissal from service in 
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respect of offences specified in section 19 of the Act. 
In the appellant's appeal to this Court, it was contended that 
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unless and until the offence of absence without leave or overstaying 
leave granted to a member of the service, without sufficient cause is 
tried by the Security Force Court and punishment

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