Read Time: 06 minutes

Synopsis

The Calcutta High Court has recently dismissed a writ petition filed by a member of BSF against his dismissal order from the service who overstayed his leave without any extension notice. The petitioner had contended that Article 311 of the Indian Constitution is applicable to him.

The single judge bench of Justice Lapita Banerji considered the writ as frivolous, misconceived and a waste of judicial time. She also stated that Article 311 of the Indian Constitution only extends to civil posts and not to Armed Forces, where civil posts mean the persons employed in civil capacities under the Union or State Govt.

Article 311 of the Indian Constitution talks about the grounds for dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State, court said.

The constable was granted earned leave (EL) for 45 days and casual leave (CL) for 15 days from June 22, 2020, to July 9, 2020. However, even after the expiry of his leave, he still continued his leave without any information regarding an extension.

The commandant of BSF issued three notices against the constable on July 16, 2020, September 23, 2020, and September 30, 2020, respectively and asked him to join his service otherwise they will initiate strict disciplinary action against him, but he neither joined the service nor replied to any of the served notices.

On March 4, 2021, a show cause notice was issued where the constable was required to show cause for the reason why he should not be dismissed from the job. It was mentioned in the notice that the petitioner had been illegally overstaying his leave with effect from September 13, 2020, without any sufficient cause.

Section 62 of the BSF Act clearly talks about inquiry proceedings if the person has been absent without due authority for periods of thirty days. In the proceeding, the officials found that the petitioner was overstaying the leave without any sufficient cause and considered his service to be undesirable.

By an order dated April 10, 2021, the constable was dismissed from the service. On May 9, 2022, he made a representation which was disposed of by order dated October 21, 2022.

The constable’s counsel submitted that he is governed under Article 311 of the Constitution of India and should be given a reasonable opportunity of being heard under article 311(2).

On the other hand, the respondent’s counsel stated that even after issuing several notices, the petitioner acted in an unprofessional manner.

After hearing both parties, the court held that the petitioner being a member of the Force will be governed by the BSF Act, 1968 and the BSF Rules, 1969 and therefore Article 311 will not be applicable to him.

Court further said that the petitioner challenged the order of dismissal after one year which showed extreme indiscipline and no respect for his service.

Case Title: Simonta Borah v. Union of India & Ors.
Statute: BSF Act, 1968, The BSF Rules, 1969, Constitution of India.