YASODHAR KAMAT versus THE DIRECTOR GENERAL, BORDER SECURITY FORCE AND OTHERS

Citation: [2020] 4 S.C.R. 766 · Decided: 08-01-2020 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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766
SUPREME COURT REPORTS
[2020] 4 S.C.R.
YASODHAR KAMAT
v.
THE DIRECTOR GENERAL, BORDER SECURITY
FORCE AND OTHERS
(Civil Appeal No. 86 of 2020)
JANUARY 08, 2020
[DR. DHANANJAYA Y CHANDRACHUD AND
HRISHIKESH ROY, JJ.]
Service Law – Appellant, constable in the Border Security
Force (BSF) was sanctioned leave from 10.02.2007 to 01.03.2007–
Rejoined on 04.04.2007 – Dismissed on the ground of such
misconduct – On appeal, held: Appellant contacted his Unit Adjutant
for extension of leave – He furnished an explanation which was
not rejected as either false or incorrect – Having regard to the facts
that the appellant had nearly seventeen years of service by the date
of the incident and the imposition of dismissal would be
disproportionate, appellant be treated as having been discharged
from service w.e.f the date on which he completes his pensionable
service of twenty years – Arrears of pension to which the appellant
is entitled be paid within three months from the date of receipt of
certified copy of the present order – Border Security Force Act, 1968
– s.19(b).
Allowing the appeal, the Court
HELD: The appellant had contacted his Unit Adjutant for
extension of leave and furnished an explanation for seeking a
further extension. That explanation was not rejected as being
either false or incorrect. The appellant had seventeen years of
service. The imposition of the penalty of dismissal would be
disproportionate having regard to the material which has emerged
from the record. Instead of and in substitution of an order of
dismissal from service, the appellant shall be treated as having
been discharged from service with effect from the date on which
he completes pensionable service of twenty years. However, the
appellant will not be entitled to any back wages between the date
on which he was originally dismissed and the date on which he
completes the requirement of pensionable service. [Para 7][769-A-F]
[2020] 4 S.C.R. 766
766
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767
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 86 of
2020.
From the Judgment and Order dated 11.08.2016 of the High Court
of Judicature at Patna in Letters Patent Appeal No. 451 of 2014.
M. Shoeb Alam, Mojahid Karim Khan, Advs. for the Appellant.
Ms. Aishwarya Bhati, Sr. Adv., Ms. Aakanksha Kaul, Ms. Manjula
Gupta, Prabudh S., B. Krishna Prasad, Advs. for the Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. Leave granted.
2. This appeal arises from a judgment of a Division Bench of the
High Court of Judicature at Patna dated 11 August 2016. While allowing
a Letters Patent Appeal, the Division Bench reversed the judgment of a
learned Single Judge by which the dismissal of the appellant from service
was set aside and the proceedings were remitted back to the Director
General of the Border Security Force1 to examine the quantum of
punishment afresh, subject to the caveat that the alternate punishment
to be imposed should not either be a dismissal or removal from service.
3. The appellant was enrolled as a constable in the BSF on 2
January 1990. He had 17 years of service by the date of the incident.
The appellant applied for leave from 10 February 2007 to 1 March 2007,
which was sanctioned. The cause of misconduct arose because he
rejoined his duties on 4 April 2007. On 16 April 2007, he was charged
with a misconduct under Section 19 (b) of the BSF Act 1968. Following
the convening of a Summary Security Force Court, the appellant was
dismissed from service. A statutory petition filed by the appellant was
dismissed by the Director General, BSF on 13 June 2007.
4. The High Court was moved under Article 226 of the
Constitution. On 29 July 2013, a learned Single Judge came to the
conclusion that the dismissal of the appellant from service was contrary
to law and accordingly the proceedings were remitted back for
reconsideration of the quantum of punishment. This order of the learned
Single Judge has been reversed by the Division Bench in appeal.
1 BSF
YASODHAR KAMAT v. THE DIRECTOR GENERAL, BORDER
SECURITY FORCE
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SUPREME COURT REPORTS
[2020] 4 S.C.R.
5. From the order of the Director General, BSF on the statutory
petition, it is evident that the appellant had contacted the Unit Adjutant
for extension of leave on the ground that his niece had been abducted
and that other pressing family circumstances necessitated an extension.
This aspect has been recorded in the order dated 13 June 2007 in the
following terms:
“It is
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