Srinagar (Jammu and Kashmir): In an interesting development, the High Court of J&K and Ladakh has ordered the reinstatement of a former Border Security Forces (BSF) employee, Naseer Ahmad (38), back into service, marking the end of a prolonged legal battle that spanned over sixteen years.
A bench led by Justice Wasim Sadiq Nargal, upon reviewing a petition filed by Naseer Ahmad, who was dismissed from service on February 4, 2008, has ruled in favor of his reinstatement. However, the court has also left the door open for BSF to conduct an inquiry against him in accordance with the provisions of the Border Security Force Act and its accompanying rules, granting him the opportunity to defend himself "if they so desire."
The court's decision was driven by its observation of procedural lapses on the part of the BSF authorities.
Advocate Sofi Manzoor, representing Naseer, specifically highlighted the absence of a show-cause notice and impartial inquiry, contending that Ahmad's dismissal was a violation of natural justice. The petitioner's counsel also asserted that the petitioner, who was appointed as a (follower) Cook in the Border Security Force on March 23, 1996, took leave from June 5, 2007, to July 22, 2007. The petitioner hails from a remote region in Tehsil Karnah, District Kupwara.
On the other hand, Hakim Aman Ali, representing the respondents, argued that Ahmad was granted earned leave but failed to report back to duty afterward, leading to his dismissal. The respondents asserted that all expected procedures, including issuing a show-cause notice and initiating a court of inquiry, were duly followed.
After examining the records of the case, Justice Nargal remarked, "What appears to this court is that the respondents (BSF authorities) have turned a blind eye to the fact that it was obligatory upon the respondents to inform the petitioner (Naseer) together with all reports adverse to him and also providing an opportunity to him to submit, in writing, his explanation and defence, however the same has not been complied with by the respondents."
Additionally, the court stated that without conducting an inquiry into the alleged misconduct to substantiate the petitioner's claims, the respondents cannot legally invoke Section 19 of the 1968 Act concerning the use of power, specifically under Section 19(b) of the 1969 Act.
Moreover, the court pointed out that the BSF authorities had disregarded the principles of natural justice. This failure to adhere to constitutional and statutory safeguards led the court to conclude that there was "total non-compliance" with the protections available to Naseer. The court, therefore, declared the dismissal order in contravention of the provisions of Rule 22(2) of the BSF regulations.
In a 30-page judgment, the court analyzed the legal intricacies of the case. It was noted that Naseer's dismissal order had been issued by a Second-in-Command officer, who, according to rule 14A, held an inferior rank to that of the Commandant, the competent authority for such decisions. This discrepancy rendered the dismissal order void of jurisdiction.
Consequently, the court ordered Naseer's immediate reinstatement into service, along with all consequential benefits, effective from February 4, 2008, albeit minus any monetary benefits.
Naseer Ahmad, who was enrolled as a follower cook with the BSF, had filed representations to the authorities for his reinstatement, only to have them rejected as "devoid of any merit." His plea highlighted his medical condition, for which he was under supervision and treatment at the Sub District Hospital, Tangdar, Karnah, during the period preceding his dismissal.
