Yasodhar Kamat vs The Director General

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No 86 of 2020 (Arising out of SLP (C) No 32081 of 2016)

Yasodhar Kamat Appellant(s)

Versus

The Director General, Respondent(s) Border Security Force and Others

JUDGMENT

Dr. Dhananjaya Y Chandrachud

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

Signature Not Verified removal from service.

Digitally signed by CHETAN KUMAR Date: 2020.01.15 16:55:40 IST Reason:

1BSF CA 86/2020 2

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.

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 on record that the petitioner while on leave had contacted the Unit Adjutant for extension of leave for searching his niece who was reportedly kidnapped. Shri V S Shekhawat, DC / Adjutant deposed in his statement in the ROE that the petitioner did talk to him on mobile for extension of leave and he in turn asked the petitioner to apply for extension of leave through telegram for a week or so.” CA 86/2020 3

6 Moreover, the learned Single Judge, in the course of his judgment,

extracted the oral statement of the appellant which had been noticed by the

appellate authority. The oral statement was to the following effect:

“4……. “I was granted 15 days CL w.e.f. 10-02-07 to 1-3-07 due to my niece kidnapping. However, I had requested to my Offg Coy Comdr to grant 30 days EL. But I was granted 15 days CL only. When I reached at my native place, I tried my best to find out my niece; later on I came to know that she is staying in Delhi. I left for Delhi on 15-02-07. I had given information about the kidnapping of my niece to Unit Adjutant Shri V S Shekhawat Dy Comdt on Mobile on 25, 26 Apr 07 and requested him for extension of leave. He told me that your CL will be converted into EL if you have not availed EL of this year. On 21-03-07, I sent a letter to Bn HQ regarding extension of leave. I could recover my niece on 27-02-07. It stayed 6 to 7 days at Delhi at the residence of my relatives with my niece. I reached at my home on 08 Mar with my niece. After settled down this problem I sent her to her husband’s house on 17-03-07. On 25-

03-07, the stomach operation of wife of my nephew was conducted. Medical documents alongwith discharge certificate I have already deposited to this HQ alongwith my application. There was no responsible person present at my home to settle down this problem. However, I overstayed only after getting assurance of extension from leave to Unit Adjutant.”

7 The position which emerges then is that the appellant had contacted his

Unit Adjutant for extension of leave. The Division Bench observed that the

appellant had submitted an application for extension of leave belatedly and that

as a member of the disciplined force, his conduct could not be condoned. The

appellant had furnished an explanation for seeking a further extension. That

explanation has not been rejected as being either false or incorrect. The

appellant had seventeen years of service. Undoubtedly, the record indicates

that in the past he was penalized for being unauthorized absence without leave.

His past conduct, in our view, would militate against the grant of an order of

reinstatement in service which we decline to do. In fairness, we also note that

this is not the submission of the appellant before the Court. However, having CA 86/2020 4

regard to the fact that the appellant had nearly seventeen years of service, we

are of the view that, in the peculiar facts and circumstances of the case, an

appropriate view needs to be taken so as to facilitate the appellant being

granted pension after completion of twenty years of pensionable service. This

is in view of the fact that the imposition of the penalty of dismissal would be

disproportionate having regard to the material which has emerged from the

record. We order and direct that 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. The arrears of

pension to which the appellant is entitled shall be paid to him within a period of

three months from the date of receipt of a certified copy of the present order.

7 The appeal is allowed in the above terms. There shall be no order as to

costs.

…………...…...….......………………........J. [Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J. [Hrishikesh Roy] New Delhi;

January 08, 2020 CA 86/2020 5

ITEM NO.23 COURT NO.8 SECTION XVI

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No.86/2020

YASODHAR KAMAT Appellant(s)

VERSUS

THE DIRECTOR GENERAL, BORDER SECURITY Respondent(s) FORCE & ORS.

Date : 08-01-2020 This appeal was called on for hearing today.

CORAM :

HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE HRISHIKESH ROY

For Appellant(s) Mr. M. Shoeb Alam, AOR Mr. Mojahid Karim Khan, Adv.

For Respondent(s) Ms. Aishwarya Bhati, Sr. Adv.

Ms. Aakanksha Kaul, Adv.

Ms. Manjula Gupta, Adv.

Mr. Prabudh S., Adv.

Mr. B. Krishna Prasad, AOR

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeal is allowed in terms of the signed reportable judgment.

(Chetan Kumar) (Saroj Kumari Gaur) A.R.-cum-P.S. Court Master

(Signed reportable judgment is placed on the file)