UNION OF INDIA AND OTHERS versus RAM PHAL

Citation: [1996] 2 S.C.R. 1144 · Decided: 28-02-1996 · Supreme Court of India · Bench: S.C. AGRAWAL · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
c 
) 
' 
UNION OF INDIA AND OTHERS 
v. 
RAMPHAL 
FEBRUARY 28, 1996 
[S.C. AGRAWAL AND G.T. NANAVATI, JJ.] 
Se1Vice Law: 
Border Security Force Act, 1968: Section 11((2). · 
Dismissal-Power of-Holding of enquiry before passing dismissal 
order-Not necessary in view of insertion of Rule 2(}-Border Security Force 
Rules, 1969. 
Dismissal-Validity of-Show cause notice given-Constable not reply-
D ing no enquiry conducted-Held : not necessary to .hold enquiry-Prescribed 
procedure fallowed-Dismissal order valid. 
Dismissal-Validity of-Constable dismissed since his retention was 
undesirable-Dismissal not because of misconduct of absence without 
E 
leav~Period of absence treated as extraordinary leave-Dismissal 
order-Basis of-Neither knocked out nor inconsistent-Grant of extraordi-
nary leave necessary for finalising dues and other benefits payable to Con-
stable. 
F 
The respondent was enlisted as a Constable in the Border Security 
Force. He was found absent in the Coy Roll Call ·and remained absent 
thereafter also. A notice was given t~ him to report for duty forthwith but 
he did not turn up. One more notice was given· to him but there was no 
response from him. Thereafter, an enquiry was ordered under Section 62 
of the Border Security Force Act, 1968. However, the absence from duty 
G without l!!ave was condoned by treating it as extraordinary leave. Ultimate· 
ly he was deemed to be a deserter. In view of his continuous absence, a 
show cause notice was given calling upon him to show cause why he should 
not be dismissed as his further retention in~service was considered un-
desirable. The respondent did not reply to the said notice. Therefore, the 
Commandant passed ar. order dismissing him from ~eJ."".ice. An appeal was 
H filed against that order but that was rejected. 
1144 
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...... 
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U.0.1. v. RAMPHAL 
1145 
The respondent then filed a suit for declaration that the order of his A 
dismissal from service was illegal and void and for a mandatory injunction 
directing the appellants to take him back in service. The suit was partly 
decreed. The declaration as prayed for was granted but mandatory injunc-
tion was refused. Both the parties filed appeals against the said judgment. 
The appeal filed by the respondent was allowed and that of the appellant B 
was dismissed. The appellant then filed an appeal in the High Court, which 
was dismissed. Aggrieved by the High Court's judgment the appellant 
preferred the present appeal. 
On behalf of Union of India, the appellant, it was contended that the 
order of dismissal was not passed buy way of penalty for any offence C 
committed by the respondent but in exercise of the power under Section 
11 (2) of the Act; that before exercise of this power no enquiry was required; 
and that the respondent was given a show cause notice which satisfied the 
principles of natural justice. 
On behalf of the respondent-employee it was contended that as no D 
enquiry was held before passing the dismissal order the same was illegal; 
and that once the absence from duty without leave was condoned or 
regularised as extraordinary leave no order of removal or dismissal could, 
therefore, be passed. 
Allowing the appeal, this Court 
HELD : 1.1. It cannot be said that for exercising the power under 
Section 11 (2) of the Border Security Force Act, 1968 no enquiry is required 
E 
to be held and that giving a show cause notice should be regarded as 
sufficient compliance with the principles of natural justice. Section 11 of F 
the Act is silent in this behalf but insertion of Rule 20 in the Border 
Security Force Rules, 1969 provides termination of service for misconduct. 
[1150-A-B] 
Gouranga Chakrab01ty v. State of Tirpura and Anotlw; [1989) 3 SCC 
314, relied on. 
G 
1.2. The respondent was given a show cause notice why he should not 
be dismissed. However, no enquiry was held. But nothing further was 
required to be done in this case. The respondent did not reply to the notice. 
There was no denial of the allegations and no request to hold an enquiry. 
Therefore, it was not incumbent upon the authorities to appoint an enquiry H 
'/ 
) 
1146 
·' 
SUPREME COURT REPORTS 
[ 1996] 2 s. C.R. 
A 
officer to conduct an enquiry in the manner prescribed under the Rules. 
B 
Thus the prescribed procedure was followed before passing the dismissal 
order. The Courts below have failed to appreciate the correct position of 
law and facts. [1152-A-C] 
2. In the present case the order of dism

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