Annexure P-25

$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8265/2022 & CM APPL. 24904/2022
RAJEEV RANA ..... Petitioner
Through: Dr. S. S, Hooda, Mr. Aayushman
Aeron and Mr. Rahul Besoya,
Advocates
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr. Ripu Daman Bhardwaj, CGSC
with DC Prabhakar (S.S.B) FOR UOI
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MR. JUSTICE SAURABH BANERJEE
ORDER
% 30.05.2022

1. By way of the present petition, petitioner seeks direction in the nature

of Certiorari quashing the Order
No.623/STP/RR/DC/JAG/FHQ/SSB/2021/538-40 dated 05.05.2022 issued
by the Respondent No. 2.
2. Notice issued.
3. Learned counsel for respondents accepts notice and seeks time to file
counter-affidavit.
4. Let needful be done within six weeks. Rejoinder thereto, if any, be
filed within four weeks thereafter.
5. Renotify on 07.12.2022.

W.P.(C) 8265/2022 page 1/2

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 07/06/2025 at 18:44:08
 6. Till further orders, impugned order dated 05.05.2022 shall remain
stayed.

SURESH KUMAR KAIT, J

SAURABH BANERJEE, J
MAY 30, 2022/So

W.P.(C) 8265/2022 page 2/2

This is a digitally signed order.

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 Annexure P-26
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8578/2023 & CM APPL.32603/2023,
RAJNEESH LAMBA ..... Petitioner
Through: Mr. Vinay Kumar Garg, Senior
Adv. with Mr. Ankur Chibber,
Mr. Nikunj Arora, Mr. Parv
Garg, Mr. Arjun Panwar, Mr.
K.S Rekhi, Advs.

versus

UNION OF INDIA AND ORS ..... Respondents

Through: Mr. Vineet Dhanda, Advocate
(through VC)
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
HON'BLE MR. JUSTICE MANOJ JAIN
ORDER
% 26.06.2023

CM APPL.32604/2023 (exemption)

1. Exemption allowed subject to all just exceptions.

W.P.(C) 8578/2023 & CM APPL.32603/2023 (stay)

1. This writ petition is directed against order dated 19 June 2023,

issued under sub-Rule (15) of Rule 19 of the Sashastra Seema Bal
Rules, 2009, whereby the petitioner has been dismissed from service.

2. Issue notice to show cause as to why rule nisi be not issued,

returnable before the Regular Bench as per roster on 4th July, 2023.

3. Mr. Vineet Dhanda, learned Central Government Standing

Counsel appearing for the respondent undertakes on instructions that,
though the impugned order states that it would take effect tomorrow,

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The Order is downloaded from the DHC Server on 07/06/2025 at 18:45:49
 the impugned order would not be given effect to till the next date of
hearing.

4. The respondent would be at liberty to file his response to the

petition within three days from today with advance copy to learned
counsel for the petitioner, who may file rejoinder, if any, before the
next date of hearing.

5. Dasti.

C.HARI SHANKAR, J
(VACATION JUDGE)

MANOJ JAIN, J
(VACATION JUDGE)
JUNE 26, 2023
st

This is a digitally signed order.

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 Annexure P-27

A-66
% 19.12.2008

Present:- Mr. Anil Gautam, adv. for the petitioner.

Mr. Sewa Ram, adv. with Mr. Yadunath Singh for the
respondents.
+ CM 17384/2008 in W.P.(C) 9050/2008
*
Exemptions allowed subject to all just exceptions.
W.P.(C) 9050/2008
• Notice to show cause as to why rule nisi be not issued. Learned
counsel for the respondents accepts notice. Counter affidavit be filed
within eight weeks. Rejoinder be filed within four weeks.
The records be kept available by the respondents for the
next date of hearing.
List on 06.04.2009.
CM17385/2008 in W.P.(C) 9050/2008

Notice which is accepted by learned counsel for the

respondents.
At request of learned counsel for the petitioner, since no reply
• to the show cause notice issued by the respondents has been filed, a
reply is permitted to be filed within four weeks.
It is directed that though the respondents are free to pass the
administrative order in pursuance to the show cause notice, but in
case of an adverse order, the same shall not be given effect to in any
manner till further orders.
List on 06.04.2009.
Dasti.
�
SANJAY KISHAN KAUL,J

DECEMBER 19, 2008/anb

 Annexure P-28
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 15th March, 2019
Decided on: 12th April, 2019

+ W.P.(C) 19014/2006 & CM APPL. 19244/2018

R.S.KADIAN ..... Petitioner
Through: Ms.V.Mohana, Sr.Advocate with
Ms.Garima Bajaj, Ms.Aakanksha
Kaul & Ms.Nikita Capoor,
Advocates.

versus

UNION OF INDIA AND ORS .... Respondents

Through: Mr.Ruchir Mishra with
Mr.MukeshK.Tiwari & Mr.Abhishek
Rana, Advocates.

+ W.P.(C) 3010/2010
R.S. KADIAN .... Petitioner
Through: Ms.V.Mohana, Sr.Advocate with
Ms.Garima Bajaj, Ms.Aakanksha
Kaul & Ms.Nikita Capoor,
Advocates.

versus

UNION OF INDIA AND ORS ..... Respondents

Through: Mr.Ruchir Mishra with
Mr.MukeshK.Tiwari & Mr.Abhishek
Rana, Advocates.

CORAM: JUSTICE S. MURALIDHAR

JUSTICE SANJEEV NARULA

WP (C) 19014/2006 & 3010/2010 Page 1 of 45

 JUDGMENT

Dr. S. Muralidhar, J.:

1. The Petitioner who is a Commandant with the Border Security Force
(‗BSF‘) has, in the first writ petition W.P. (C) 19014 of 2006, challenged an
order dated 2nd February, 2006 passed by the Deputy Inspector General
(‗DIG‘) in the Summary Court of Inquiry (‗SCOI‘) proceedings ordering
that the Inspector General‘s (IGs) displeasure be conveyed to the Petitioner.

2. W.P. (C) 19014 of 2016 also seeks a quashing of a show cause notice
dated 9th September, 2006 issued by the DIG calling upon the Petitioner to
explain why they should not be asked to resign in terms of Rule 20 of the
Border Security Force Rules, 1969 (‗BSF Rules‘) read with Section 10 of
the Border Security Force Act (‗BSF Act‘). Subsequently, during the
pendency of the present writ petition, an order dated 17 th June, 2009 was
passed by the Director General (DG), BSF on the SCN, retiring the
Petitioner from service with pensionary benefits. The writ petition was
amended to challenge the said order. IN terms of the interim orders of this
Court, the said order dated 17th June 2009 was not given effect to, awaiting
the orders of this Court.

3. In the second writ petition, W.P. (C) 19014 of 2010, the Petitioner
challenges an order dated 23rd March 2010 passed by the DG and
communicated by the Commandant (Personnel) 10 CGO complex New
Delhi, de-attaching the Petitioner from CPF‘s canteen and posting him to
SHQ, Kupwara. A challenge is also made to the order dated 12th April 2010

WP (C) 19014/2006 & 3010/2010 Page 2 of 45

passed by the DIG (Admn) initiating a court of inquiry (COI) against the
Petitioner to enquire into the circumstances under which the Petitioner failed
to attend to his duties in the Central Police Canteen (CPC) from 3rd July
2009 to 26th February 2010. By an interim order dated 4th May 2010 this
Court stayed the COI.

Background facts
4. The background facts are that the Petitioner joined the BSF on 17 th
September, 1994 as an Assistant Commandant (AC). Subsequently in the
regular course he was promoted as Commandant. At the time of the filing of
the writ petition on 18th December, 2006 he was posted as Commandant at
the headquarters DIG, BSF, Kupwara in Jammu & Kashmir (J&K). He had
been posted there since August, 2003. The Petitioner states that he received
8 rolls of Commendations and has distinguished career in the BSF.

5. During the August, 2001-03 the Petitioner was Commanding 01 Battalion,

BSF at Taligudi (Cooch Behar, West Bengal) under the HQ, DIG, BSF,
Cooch Behar and further under the HQ, IG, BSF, North Bengal Frontier.
The incident which triggered the SCOI is set out in the impugned orders and
notes in the file produced by the Respondents before this Court.

6. It is stated that on 7th November, 2002 when Constable Pradip Dey of 01

Battalion returned home after duty, his wife told him that Constable Mahabir
Singh along with Constable T.M. Gopal Ram had visited their house and
commented about the alleged bad character of Constable Pradip Dey and his
wife. That very night Constable Pradip Dey reported the matter to Subedar

WP (C) 19014/2006 & 3010/2010 Page 3 of 45

A.S. Jamwal who took him to Shri V.K.Singh, DC who was the Company
Commander who further reported the matter to the Petitioner.

7. On 9th November, 2002 Constable Pradip Dey, Constable Mahabir Singh

and Constable T.M.Gopal Ram were summoned to the office of the
Petitioner. The version of the Petitioner is that the Constable Mahabir Singh
admitted to his fault and begged for pardon. Since the matter had been
settled amongst themselves, the Petitioner instructed Subedar Jamwal to
brief the troops in the roll call to not commit such mistakes. However, the
version of the Respondent is that the Petitioner suggested to Constable
Pradip Dey that he should have come straightway to the Petitioner rather
than the following ―a long channel‖. After that the Petitioner is alleged to
have asked Constable Pradip Dey as to what type of punishment he expected
the Petitioner to award Constable Mahabir Singh. To this Constable Pradip
Dey is alleged to have replied that action should be taken as per rules.

8. On the evening of 9th November, 2002 it is alleged that in the evening roll
call under the instructions of Subedar Jamwal and in his presence, Sub-
Inspector (SI) Ramchander stripped Constable Mahabir Singh, Constable/
Tailor Gopal Ram and Constable Pradip Dey completely naked. The further
allegation is that 275 personnel were attending the roll call and the daughter
and brother-in-law of Constable Mahabir Singh were also standing nearby.

9. On 10th January, 2003 Constable Pradip Dey submitted a written

complaint to the DG, BSF stating that he had no desire to live further on
account of the humiliation. He prayed that he should either be discharged

WP (C) 19014/2006 & 3010/2010 Page 4 of 45

from service or posted out from 01 Battalion BSF to be free of his mental
agony.

10. On receipt of the above complaint, the DG, BSF sought a factual report
from the IG, BSF, North Bengal Frontier within whose command 01
Battalion was deployed. The matter was then inquired by a senior by the
ADIG of G (IIT) Branch who submitted a report on 12th February, 2003
stating that the disgraceful act of striping naked the three personnel not only
caused embarrassment to him and their families but also there was
resentment and fear in the troops of 01 Battalion BSF against the Petitioner.

11. The Petitioner‘s version is that Subedar Jamwal compelled SI

Ramchander to strip the three men naked and not to report the incident to the
adjutant or the Petitioner or any other officer. After 3-4 days Constable
Pradip Dey brought the notice of the said incident to Shri L.P.Sharma, the
Deputy Commandant (DC)/Adjutant who then reported the matter to
Petitioner. Thereafter the Petitioner informed Shri D.L.Choudhary, DIG,
BSF, Cooch Behar. As desired by the DIG, the three constables were asked
to submit a written report to the adjutant, which they refused to submit.
Subedar Jamwal who continued to conceal the incident was inquired by Shri
L.P. Sharma, DC.

12. According to the Petitioner on 20th December, 2002 the matter was again
brought to the notice of the DIG and as per his directions Constable Pradip
Dey and Constable Mahabir Singh were heard in the Petitioner‘s office in
the presence of Shri L.P. Sharma DC/Adjutant, Shri Raj Kumar DC,

WP (C) 19014/2006 & 3010/2010 Page 5 of 45

Subedar/Head Clerk S. Shome, SI Desh Raj, HC Paramhans Singh,
Constable K.N.Babu and Constable Triveni Das. According to the
Petitioner, the victim Constables refused to submit anything in writing. A
report was then submitted to the DIG regarding ordering an SCOI into the
incident and initiating disciplinary action against Constable Mahabir Singh
and Constable Pradip Dey.

13. On 31st December, 2002 a signal was received from the HQ, DIG, BSF
Cooch Bihar directing the Petitioner to order a COI into the incident. Shri
Raj Kumar, DC was appointed as the Recording Officer on 1st January,
2003. The statement of Subedar A.S. Jamwal was recorded on 3rd January,
2003.

14. On 23rd January, 2003 a Savingram (message) was received from HQ,
BSF, North Bengal Frontier cancelling the COI. The DIG was directed to
order Record of Evidence (ROE) against Subedar Jamwal, Subedar
Mohinder Singh and SI Ram Chander. All six persons i.e. (three accused
and the three victims) were sent to the DIG for hearing on 31st January,
2003. Further they were attached to the 41 Battalion BSF where they
remained till November, 2003.

15. On 8th February, 2003 three accused subordinate officers were charge-
sheeted. ROE was ordered on charges under Sections 25 and 40 of the
Border Security Force Act (BSF Act). During the pendency of the ROE, the
Headquarters BSF, North Bengal Frontier ordered a Staff Court of Inquiry
(SCOI) to inquire into the incident, as far as the Petitioner‘s involvement

WP (C) 19014/2006 & 3010/2010 Page 6 of 45

was concerned.

16. On 17/21st April, 2003 in the SCOI the statements of the Petitioners and
the three subordinate officers were recorded. Again on 14 th May, 2003 the
Petitioner‘s statement and statement of his defence witnesses were recorded.
In the SCOI that was completed on the next day i.e.15th May, 2003 the
Petitioner was blamed for failing to take cognizance of the offence and
trying to suppress the full facts of the case. The SCOI opined that
punishment of ‗IG‘s displeasure‘ be conveyed to the Petitioner. This was
however not communicated to the Petitioner till much later.

17. On 22nd May, 2003 the ROE against the three subordinate officers was
completed. On 26th July, 2003 the Petitioner was posted out from the 1 st
Battalion, BSF to the Headquarters DIG, BSF, Group - I where he reported
on 22nd August, 2003. He was attached to the HQs IG, BSF, Shillong for
disciplinary action. The Petitioner reported to the HQs IG, BSF, Shillong on
8th September, 2003.

Charges against the Petitioner

18. On 24th February, 2004 an ROE was ordered against the Petitioner on
five charges. The first charge was that at around 1600 hrs on 9 th November,
2002 at the Headquarters 1st Battalion BSF, Teliguri (Cooch Behar) he had
ordered Subedar A.S.Jamwal of his unit to strip off Constable Pradip Dey,
Constable Mahabir Singh and Constable (Tailor) Gopal Ram of the same
unit during roll call by directing as under:-
"saheb in teenon constables, ko aaj roll call mein sabke samne

WP (C) 19014/2006 & 3010/2010 Page 7 of 45

 bahar nikalna aur poora nanga karna", or words to that effect,
fully knowing his order to be improper and without any
authority.‖

19. The second charge was that at around 8.30 hrs on 31 st January, 2003 at
Headquarters, 1st Battalion, BSF, Teliguri (Cooch Behar), he had improperly
directed SI Ram Chandra Singh not to disclose the fact of the stripping of
the above named three Constables at the roll call of 9th November, 2002 and
take the responsibility of the said incident on himself while deposing at the
inquiry.

20. The third charge was that at 1000 hrs on 20th December, 2012 at HQ-01
Battalion, BSF Teliguri he had used abusive language against Constable
Mahabir Singh and Constable Pradip Dey by saying
"b_ aap logon ko kab se bol raha hun likh kaar de" or words to
give to that effect, when these two Constables refused to give
in writing that they were asked to remove their shirt and
trousers only in the roll call of 09 Nov'02‖

21. The fourth charge was that he had on 12th November, 2002 improperly
directed Constable/ Tailor Gopal Ram not to report the incident of stripping
off which took place during the roll call of 9th November, 2002 to anyone.

22. The final charge was that on 3rd December, 2002 and subsequent dates
he had improperly coerced Constable Pradip Dey to give in writing that
nothing had happened to him during the roll call on 9 th November, 2002
―knowing fully well that the said Constable was stripped naked under his
own orders‖.

WP (C) 19014/2006 & 3010/2010 Page 8 of 45

23. According to the Petitioner there was serious illegality committed in the
ROE which was objected to by the Frontier HQ. As a result an additional
ROE was ordered against the Petitioner which was completed on 8th
December, 2004. The witnesses admitted that while they were at the 41st
Battalion, BSF the accused subordinate officers were guiding them to
prepare their statement as per their desire and it was decided to shift the
blame on to the Petitioner, this conspiracy was hatched by Subedar Jamwal.

The GSFC proceedings

24. The Director General (DG) ordered a General Security Force Court
(‗GSFC‘) proceeding on 10th February, 2005. On 22nd February, 2005 the
department ordered the Petitioner‘s trial through GSFC on four charges. It
must be noted here that of the original five charges, two were dropped and
one new charge was added. The Petitioner was placed under arrest.

25. On 10th March, 2005 the prosecution closed its evidence after examining
17 witnesses. The witnesses/accused Jamwal, Mohinder Singh and
Constable Pradip Dey admitted during cross-examination that a conspiracy
was hatched to implicate the Petitioner. The Petitioner‘s statement was
recorded in the proceedings before the GSFC as under:
―Inspector A.S. Jamwal made his first statement in this case, in
the battalion‘s Court of Inquiry on 03 Jan 2003, in which he
never stated that I ordered him to strip these constables. In fact,
Inspector AS Jamwal did not state anything against me, which
goes to prove that he fabricated his statement subsequently in
order to save his skin, by implicating me in the case. Inspector A
S Jamwal, during cross-examination in the ROE identified
having made this statement, which forms part of the ROE

WP (C) 19014/2006 & 3010/2010 Page 9 of 45

 proceedings.‖

26. It appears that during the GSFC proceedings, the statements made by the
witnesses did not support the case of the prosecution. It appears that
Inspector Jamwal told SI Sanjeev Singh Dadwal prior to the roll call that
―aaj roll call mein aisa tamasha dekhaunga jo aaj tak naa bsf mein hua
hain, aur naa hoga‖ or words to the effect.‖ SI Sanjeev Singh Dadwal
disclosed the above conversation to Constable Mahabir Singh,
Constable/Tailor Gopal Ram, SI Ram Chandra Singh and Inspector
Mohinder Singh in February/March 2003 when they were together at the 41 st
Battalion, BSF for inquiry of the incident. These witnesses confessed these
facts which further pointed out to their being a pre-meditated conspiracy
hatched by Inspector Jamwal. Further during cross-examination the
Petitioner stated
―It is correct to say that Accused (i.e. Me) did not specifically
tell him (i.e. Jamwal) to strip naked the three Constables‖.

27. Thus, according to the Petiutioner, no case made out as such against him
in the GSFC.

28. As far as SI Ram Chander Singh is concerned, he claimed that neither he

nor did the Petitioner give any order of stripping to Inspector Jamwal in his
presence. HC Vijay Kumar disclosed that on 31st January, 2003 at around
09.15 hrs Inspector Jamwal had asked him to give a statement in his favour
which was refused by him.

WP (C) 19014/2006 & 3010/2010 Page 10 of 45

29. Before the GSFC Constable Pradip Dey stated that
―I did not coerce or pressurize him on 04 Dec 2002 or
subsequent dates to forget about the stripping incident and give
in writing that no such incident has taken place in the roll call.
But, he again reverted back to his earlier falsehood by saying
that, I did not tell him to this effect. It is clear that, he has been
improving his statement from time to time.‖

30. Constable/Tailor Gopal Ram denied being called by the Petitioner till
November, 2002 to the residence of the Petitioner. He in fact denied having
been so called either on 12th November, 2012 or any other date. This was
supported by the statements of HC Paramhans Singh (now SI) and L.P.
Sharma DC/Adjutant before the GSFC. SI Desh Raj stated in the ROE that
Constable Mahabir Singh was never brought to the residence of the
Petitioner on 19th December, 2002 at around 6.30 p.m.

31. On 10th March, 2005 the Petitioner submitted a plea of ‗no case to
answer and stoppage of trial‘ under Rule 92 of the BSF Rules. This was
accepted by the Court and the Petitioner was already acquitted of all
charges. According to the Petitioner, despite being acquitted on 10th March,
2015 by the GSFC, he was still kept under illegal arrest.

GSFC Revision Trial

32. On 22nd August, 2005 not being satisfied with the GSFC the department
ordered a Revision Trial for the Petitioner alone on all four charges and to
examine 8 fresh witnesses. Out of these 8 fresh witnesses 5 were defence
witnesses and the remaining 3 were not relevant to the charges. The
proceedings of the GSFC were again entered into after the Petitioner being

WP (C) 19014/2006 & 3010/2010 Page 11 of 45

acquitted of the charges. The relevant findings read as under:
―Findings

The Court having attentively considered the observations of the

Convening Authority in revision order and submission made
by the Defending Officer in respect of the matter raised in the
revision order do respectfully adhere to its earlier findings.

Announcement of findings

The Court being reopened, the accused is again brought before the
Court. The decision of the Court to adhere to its earlier findings is
announced in an open Court as being subject to the confirmation.

Signed on 22nd August, 2005 at SHQ BSF, Mawpat, Shillong.‖

33. However, when these proceedings were sent to the Inspector General,
BSF as a Confirming Officer, he recorded on 2nd February, 2006 as under:
―I do not confirm the findings of the court on all the four
Charges being against the weight of the evidence.‖

34. On 7th February, 2006 the Petitioner gave a detailed representation to the
DG, BSF protesting against the non-confirmation of the GSFC trial.

Consideration by Respondents of the course of action

35. The documents produced before this Court by the Respondents reveal
what exactly transpired after the DG refused to confirm the GSFC
proceedings. One course suggested by the ADIG, (Confidential) on 24 th
February, 2006 was to go in for a ‗de novo trial‘. This was after noting that
―after going through the GSFC proceedings it is evident that there is very
weak evidence as regards the main charge i.e. Charge –I.‖ It was noted that

WP (C) 19014/2006 & 3010/2010 Page 12 of 45

―however, it is agreed that despite sufficient evidence available in ROE it
has not been brought on record before the Court.‖ It was suggested that there
is no bar against the de novo trial ―and even the Supreme Court has upheld
that in many cases without prejudice to the accused‖ and at the same time it
was noted that ―however, the de novo trial was ethically against our own
judicial system, which if recommended, will perhaps raise a lot of doubt on
the functioning of our own Security Force Trials‖.

36. The DIG (Personnel) in his note on 3rd March, 2006 was against
invoking Rule 20 he noted as under:
―It is a critically poised GSFC case, wherein the Court has
admitted a ―Plea of no evidence‖, even in the revision trial.
Ftr. IG (the confirming authority), had not confirmed the
findings of the court being against the weight of available
evidence and have alternatively recommended administrative
action by invoking Rule-20 of the BSF Act and Rules.

The other co-accused involved in the incident have been

awarded severe punishment ranging from five to eleven years
forfeiture of services for the purpose of pension/two years
forfeiture of service for the purpose of promotion.

Invoking Rule-20 is considered too harsh whereas the other

option of issuance of DG‘s displeasure to the officer may not
be sound commensurate with culpability of the crime.

Convening of De-novo trial will surely raise apprehension

regarding delivery of Justice in the eyes of Judiciary in our
force. Hence De-novo trial, in my opinion, should be applied
only as a last resort. Thus issuance of DG‘s displeasure may
be the only option left, if felt suitable.‖

37. The Chief Law Officer, DIG then penned his note on 17th April, 2006

WP (C) 19014/2006 & 3010/2010 Page 13 of 45

opining as under:
―It may be mentioned here that de-novo trial would not be
legally sustainable. Issue of DG‘s displeasure or IG's
displeasure would also not be advisable considering the gravity
of the offences against the officer. The way entire proceedings
have been conducted give a very strong feeling that the Court
had deliberately tried to save the officer by ignoring the
evidence which was available on record. On the other hand, all
the three SOs who acted under the orders of the accused have
been tried and convicted. In my humble opinion the only
option which is just and reasonable to meet the ends of justice,
in the instant case is to invoke the provisions of Rule 20, to be
read with Sec 10 of the BSF Act.‖

38. He even suggested amending rule 106 by adding a new sub-Rule 9 on

the following lines:-
―(9) Where findings have not been confirmed even on revision
on the ground of being perverse or against the weight of
evidence, the competent authority may, in appropriate cases,
invoke Rule 20 or 22, as the case may be, or take such other
action as deemed just and proper under the circumstances of the
case;

Provided that the process to initiate action commences within

one year from the date of non-confirmation of the finding (s);

Where no action is initiated within one year from the date of

non-confirmation of the finding(s) or sentence by the competent
authority, such proceedings shall be deemed to have attained
finality.‖

39. The matter then went before the DIG (Pers.) who agreed that ―we may
recommend invoking Rule 20 to read with Section 10 of the BSF Act to
MHA for dismissal of the officer from service with pension.‖ The DG, BSF

WP (C) 19014/2006 & 3010/2010 Page 14 of 45

then made the following note on 26th April, 2006
―I have gone through the proceedings of the GSFC and also the
preceding notes recorded in the file. The officer was tried by
GSFC, followed by a revision of findings, but the Court, on
both the occasions, had allowed the ‗plea of no case‘ U/R 92
despite sufficient evidence being available on record. Under the
existing provisions there cannot be any further revision or trial
of the officer. I am, therefore, satisfied that the trial of the
officer is inexpedient. Considering the gravity of the offences,
further retention of the officer in service is undesirable. I,
therefore, recommend his case for termination of service U/R
20, to be read with Section 10 of the BSF Act. The officer may
be asked to resign and in case he fails to do so, he may be
retired compulsorily. The case may be sent to the MHA for
approval before issuing show cause notice to the officer.‖

Impugned Show Cause Notice

40. Apart from issuing a show cause notice (SCN) to the Petitioner
proposing termination of his services with pensionary benefits, it was
decided to seek an explanation from the Presiding Officer, Members and
Law Officers of the GSFC ―as to how they failed to take cognizance of the
evidence on record despite remand of GSFC proceedings for revision by the
Confirming Authority.‖ The BSF was also asked to clarify ―what action has
been proposed to be taken against Shri L.P. Sharma, Dy. Comdt/Adjt for
pressurizing/threatening the victims to change their statements, at the behest
of the Comdt (accused).‖

41. On this basis on 9th September, 2006 the DG, BSF issued a SCN under
Rule 20 read with Section 10 of the BSF Act to the Petitioner asking him to
submit his defence to the proposal why he should not be called upon to

WP (C) 19014/2006 & 3010/2010 Page 15 of 45

resign him from the post.

42. The Petitioner submitted a detailed reply on 23 rd October, 2006 referring

to the evidence and pointing out that the case against him was not
substantiated at all. He stated that he had a strong defence which he had
produced at the time of the ROE. He referred to the statement of Shri R.K.
Thakur, the then IG, BSF, Siliguri who had appeared and witness in the
ROE and stated that: ―I did not receive any report suggesting that the
Commandant (i.e. me) was pressurizing anyone not to disclose the facts.‖

43. The Petitioner stated that in addition he had the tape-recordings of most
of the material prosecution witnesses which corroborated what he had stated
in his defence and what had also emerged in the Court. Additionally he
pointed out as under:
―13. I have put in a total of more than 22 years of service. Under
my command my battalion was adjudged the best in the frontier
and second best battalion of the force in the prestigious General
Chaudhary Trophy, and of more than 30 inspections conducted
during my command, all but one were graded ―very good‖ – the
one exception was graded as ―good‖. In addition, I have been
awarded 3 commendation rolls by the DG BSF and 5 by the IG in
recognition of my services. (In ROE, statement of Sh. RK Thakur,
Inspector General (Retd.) as DW-16 at lines 15 to 18 of page
112, and 8 to 12 of age 113).

14. For the last three and a half years, I and my family have
continuously been under stress, firstly for administrative action
ordered against me in the form of IG‘s displeasure, than secondly
for disciplinary action ordered when the department did not agree
to this administrative action, and thirdly for reverting back to this
administrative action on my acquittal through the Court. This

WP (C) 19014/2006 & 3010/2010 Page 16 of 45

 treatment is being meted out to me in spite of my honourable
acquittal through the Court, and on being abundantly clear that
there was a conspiracy hatched in this case by fabricating
statements, wherein help of Advocates was also taken by the
conspirators.‖

W.P. (C) 19014 of 2006

44. It is at this stage that the WP(C) No. 19014/2006 filed in this Court
challenged the show cause notice. Notice was issued in the petition on 19 th
December, 2006. On 31st January, 2007 an interim order was that ―pending
further orders from this Court and till 26th February, 2007 the Respondent
was not passed any orders pursuant to the show cause notice.‖

45. Thereafter, on 26th February, 2007 the following order was passed:
―We have heard learned counsel for the parties at some
length. It is interesting to note that the petitioner and the
respondents both place reliance upon the decision of the
Supreme Court in Union of India & Ors. vs. Harjeet Singh
Sandhu (2001) 5 SCC 593 in which their Lordships have
clarified the legal position as regards the permissibility of
taking administrative action against a delinquent officer in
the event of the proceedings before the Security Force
Court/court martial did not in the opinion of the confirming
authority go on record. It is argued on behalf of the petitioner
that while the power to take administrative action under
Section 10 of the BSF Act r/w Rule 20 of the BSF Rules
cannot be disputed in the light of the law declared by the
Supreme Court in the above decision, any action which the
respondents may propose to take in exercise of the said
power can be questioned as malafide, inexpedient or
unjustified and also on the ground that the exercise of power
is a fraud on the power vested in the authority concerned.

The respondents have not admittedly passed any order

WP (C) 19014/2006 & 3010/2010 Page 17 of 45

 pursuant to the impugned show cause notice although the
petitioner has already submitted a reply to the same. As a
matter of fact, this Court has vide order dated 31.1.2007
restrained the respondents from passing any order pursuant to
the show cause notice. Having heard learned counsel for the
parties today, we are inclined to modify that order. We
accordingly direct that the respondents shall be free to pass
an appropriate order pursuant to the impugned show cause
notice. The same shall not be given effect to without the
permission of this Court. We further direct that upon the
order being made and served, the petitioner shall be free to
suitably amend the writ petition challenging the validity of
the said order. The needful shall be done by the petitioner
within two weeks from the date the order is communicated to
him. This writ petition is, in the meanwhile, adjourned to be
posted again on 30.4.2007.

Order dasti.‖

Subsequent developments
46. On 21st August, 2007 the Court issued Rule D.B. in the matter. On 22nd
August, 2007 the Petitioner gave a written representation requesting for a
posting out of Kupwara and preferably to Delhi. He made another
representation for posting to Delhi on 14th March, 2008. In the meanwhile
on 1st March, 2008 the Petitioner‘s wife suffered a massive brain stroke and
expired in the hospital on 20th March, 2008. Although he was not posted to
Delhi he was attached to Delhi with effect from 31st March, 2008 for one
year in the Central Police Canteen.

47. On 2nd May, 2008 the Petitioner made a further representation for the
posting at Delhi so that he could meet his domestic obligations. On 22 nd

WP (C) 19014/2006 & 3010/2010 Page 18 of 45

May, 2008 the Petitioner was superseded for promotion to the rank of
additional DIG when his junior was promoted as such. On 26th May, 2008
the Petitioner protested against the above action but received no reply.

48. It is stated on 28th June, 2008 the Petitioner underwent an eye operation
in New Delhi and suffered a post operative complication as a result of which
he was on medical leave upto 19th August, 2008. In the meanwhile, the
CEO of the Central Police Canteen sent a letter to the DG, BSF stating that
since the Petitioner services were likely to be terminated and also since he
had undergone an operation in his eye, he should be replaced with another
officer.

49. On 24th July, 2008 the Petitioner was issued a notice to the Petitioner in
terms of the Rule 20(4)(d) of the BSF Rules read with Section 10 of the BSF
Act calling upon the Petitioner to resign from service. It was however added
in para 6 of the said notice as under:
―The effect of this order shall remain deferred till the
permission is granted by Hon‘ble High Court of Delhi to give
effect to the same i.e. the termination will be operative from the
date of permission granted by Hon‘ble High Court to do so in
compliance to direction of Hon‘ble Delhi High Court dtd 26
Feb 2007.‖

50. On 27th August, 2008 the Petitioner sought to amend the present writ
petition to challenge the aforementioned order dated 24 th July, 2008 which
was served on him on 20th August, 2008.

51. On 10th September, 2008 the Petitioner was de-attached from the Central

WP (C) 19014/2006 & 3010/2010 Page 19 of 45

Police Canteen pre-maturely and was directed to report back to Kupwara.
On 15th September, 2008 the Petitioner protested against the de-attachment
order pointing out that he had not been allowed to complete the attachment
period of even one year. He filed CM No.13078/2008 in the present writ
petition. On 19th September, 2008 notice was issued and it was directed that
―till the next date of hearing further action in pursuance to the detachment
order dated 10th September, 2008 is stayed.‖ This interim order was
continued till 20th May, 2009 on which date the following order was passed:-
―The de-attachment order dated 10.9.2008 was stayed on
19.9.2008 on account of the illness of the wife of the
petitioner. The wife of the petitioner is no more.
Learned counsel for the petitioner states that the
petitioner has two daughters – the younger one in Class
9th while the elder one has written her Class 12th exam.

In the present proceedings, we cannot keep the petitioner

permanently posted at Delhi and the petitioner would
have to be posted as per norms. In case the petitioner
has any grievance in respect of any particular posting that
would be a separate cause of action. At the request of the
learned counsel for the petitioner, we grant liberty to
the petitioner to make any representation in respect of
posting.

However, given the peculiar facts and circumstances of

the case, the de-attachment order should not be given
effect to till 15.8.2009.

Application stands disposed of.

Dasti.‖

52. In the meanwhile on 31st October, 2008 the Petitioner sought an oral

WP (C) 19014/2006 & 3010/2010 Page 20 of 45

hearing. After the order dated 20th May, 2009 the Petitioner again
represented by letter dated 3rd June, 2009 for posting to Delhi as he was
eligible for it. On 5th June, 2009 the CEO of the CPC was relieved and the
Petitioner was asked to look after the job till further orders. However, the
charge was not given to him.

53. On 17th June, 2009 the Directorate General, BSF passed an order retiring
the Petitioner from service with pensionary benefits. However, the effect of
the order was to remain deferred till permission was granted by this Court in
terms of the order dated 26th February, 2007.

54. The Petitioner then applied for stay of the said order and to amend the
writ petition. These amendment applications were allowed on 17th
November, 2009. On 24th November, 2009 the amended writ petition was
filed in the Court. Meanwhile, the Petitioner was not allowed to do any work
in the CPC and kept representing against it.

W.P. (C) 3010 of 2010

55. On 26th March, 2010 the Petitioner was issued a movement order that he
should report to Kupwara. On 12th April, 2010 an order was issued
addressed to the Petitioner at his native place in Rewari that a one man
inquiry had been initiated by the BSF to inquire into the failure of the
Petitioner to attend to his duties in the CPC, Delhi from 3rd July, 2009 to 26th
February, 2010. The Petitioner then applied to this Court by filing CM No.
5831/2010 in the present petition for stay of the said order.

WP (C) 19014/2006 & 3010/2010 Page 21 of 45

56. Meanwhile, the second Writ Petition being WP(C) No. 3010/2010
questioning the said order was filed, in that view of the matter on 4th May,
2010 when CM No. 5381/2010 was listed. Counsel for the Petitioner sought
leave to withdraw the said application.

57. On that very date, notice was issued in WP(C) No. 3010/2010 and there
was stay of the Court of Inquiry that Respondents were directed to place
before the Court the action taken by them on the several representations of
the Petitioner.

58. Thereafter, the Petitioner joined duties of Kupwara and continued to

work there. The Court is informed that at present the Petitioner is
discharging duties at Kolkata.

Orders of this Court

59. For some reason, despite the two writ petitions being listed before
various benches of this Court they could actually not be taken up for final
hearing. The final hearing of the present petitions commenced before this
Bench on 31st January, 2019.

60. On 5th February, 2019 the following order was passed:

―1. Learned counsel for the Respondent has brought the entire
record of the case to the Court, with the relevant pages flagged
along with an index.

2. The Court considers it appropriate to permit counsel for the

Petitioner to inspect the record in the chamber of the counsel for
the Respondent on a date and time mutually convenient, within

WP (C) 19014/2006 & 3010/2010 Page 22 of 45

 the next one week. Copies of whatever documents are sought by
the counsel for the Petitioner will be provided to her to enable
the counsel for the Petitioner to prepare a compilation of the
relevant documents along with a note for being produced before
the Court on the next date.

3. List on 7th March 2019 at 2.15 pm.

4. Matter be treated as part-heard.‖

61. Pursuant thereto inspection of the record was allowed. Compilations

were prepared by both parties and submitted to the Court along with the
written notes of arguments. The arguments concluded on 15 th March, 2019
when orders were reserved.

Submissions on behalf of the Petitioner

62. Ms. V. Mohana, learned senior counsel for the Petitioner made the
following submissions:-

i) the impugned notice issued by the Respondents calling upon the Petitioner
to resign from service under Rule 20 (4) (d) of the BSF Rules dispensing
with inquiry notwithstanding his acquittal twice by the GSFC on the same
charges was without jurisdiction, legal and arbitrary.

ii) The Staff Court of Inquiry (SCOI) was itself illegal the recording officer
blamed the Petitioner by invoking Rule 173(8) of the BSF Rules even before
the Petitioner was allowed to produce his defence witnesses. The occasion to
invoke Rule 173(8) was only after statements of all witnesses were recorded.

WP (C) 19014/2006 & 3010/2010 Page 23 of 45

iii) The illegal SCOI became the basis of future action against the Petitioner
on the administrative side the IG, BSF had directed that IG‘s warning be
issued to the Petitioner for failing to take cognizance of the incident and
suppressing the full facts of the case. The IG also ordered disciplinary
action against the three subordinates who had in fact stripped naked the
three constables on 9th November, 2002. Inexplicably the DG, BSF over-
turned the IG‘s order and directed the disciplinary action be taken against
the Petitioner. This was wholly illegal and uncalled for.

iv) The ROE against the Petitioner on 22nd February, 2004 was on basis of
charges which were entirely different from the lapses attributed to the
Petitioner by the SCOI. The Recording Officer in the ROE allowed
witnesses to produce their previously written statements. The Headquarters,
DG, BSF objected to this and ordered for an additional ROE. While
conducting the additional ROE the Recording Officer again committed an
illegality by allowing witnesses to keep pieces of papers previously written
for their assistance. These witnesses made statements by referring to those
papers.

v) None of the witnesses who appeared in the GSFC on two occasions

supported the case of the prosecution. They even went on to accept that they
had lied before the GSFC. It is in those circumstances, the GSFC allowed
the prayer of the Petitioner that he should not be called upon to make his
defence under Rule 92 of the BSF Rules and he was acquitted upon the
charges.

WP (C) 19014/2006 & 3010/2010 Page 24 of 45

vi) The GSFC also recommended action against the three prosecution
witnesses namely Subedar Jamwal, Constable Mahabir Singh and Constable
Pradip Dey for making false statements before the GSFC. Between April
and June, 2005 three separate GSFCs were held against the aforementioned
three subordinate officers. They were all found guilty of stripping the
constables and punish mildly by forfeiting the service by a few years for
purposes of promotion and pension.

vii) As far as the Petitioner was concerned, the Respondents on 22 nd August,

2005 ordered a revision trial and in this again the GSFC acquitted him. On
9th September 2006, all of a sudden the Petitioner was issued a SCN under
Rule 20(4)(d) of BSF Rules, 1969 read with Section 10 of BSF Act. There
was no material on the basis of which the said provision could be invoked.

viii) The SCN issued thereunder was malafide and based on irrelevant
grounds. Apart from the principles of double jeopardy getting attracted the
entire action was violative of the principles of natural justice.

ix) The actual perpetrators of the offence have been found guilty by the
GSFC and have been awarded a mild punishment of loss of seniority.
However, the Petitioner who is not involved in the incident at all and despite
being acquitted twice by the GSFC is sought to be terminated. There was no
question of change of circumstances for impracticability.

x) There was also no question of inexpediency because the Petitioner has

already been tried twice on the same charges. Sections 107 and 108 of the

WP (C) 19014/2006 & 3010/2010 Page 25 of 45

BSF Act requiring confirmation of a sentence by an empowered officer was
enacted for the purposes of checking misuse or arbitrariness. It was not
meant to perpetuate arbitrariness. The fact that the members of the GSFC
have themselves been issued a SCN speak of the malafides of the
Respondents.

xi) Reliance was placed by Ms. Mohana on the decisions in Union of India
v. Harjeet Singh Sandhu (2001) 5 SCC 593, Tarsem Singh v. State of
Punjab (2006) 13 SCC 581, Major Radha Krishnan v. Union of India
(1996) 3 SCC 507 and the decision dated 28th September 2015 of this Court
in WP (C) No. 7611/2003 (Yacub Kispotta v. Director General, BSF).

Submissions on behalf of the Respondents

63. Mr. Ruchir Mishra, learned counsel appearing for the Respondents,
submitted that the requirements of Rule 20 of the BSF Rules were
completely fulfilled in the present case. The record before the GSFC was
itself material on the basis of which the action was warranted thereunder.

64. He placed considerable reliance on the decisions in Chief of Army Staff

v. Major Dharam Pal Kukrety (1985) 2 SCC 412 and pointed out that the
mere acquittal of the Petitioner by the GSFC could not preclude the
Respondents from taking action under Rule 20 of the BSF Rules. He further
placed reliance on the decisions dated 16th October, 2008 in WP(C)
2003/2006 (S.S. Shekhavat v. Union of India).

65. Mr. Mishra took the Court through the evidence recorded before the

WP (C) 19014/2006 & 3010/2010 Page 26 of 45

GSFC and submitted that this constituted sufficient material to proceed
against the Petitioner under Rule 20 of the BSF Rules. The above
submissions have been considered.

Analysis of relevant provisions

66. The scheme of the BSF Act is that there are three kinds of Security
Force Courts under Section 64 of the BSF Act, 1968. These are (a) General
Security Force (GSFC) (b) Petty Security Force Courts (PSFC) and (c)
Summary Security Force Courts (SSFC). The trial of personnel is conducted
by the GSFC which can, after a person is held guilty of a major offence
punishable under the Act, award him a sentence. On the other hand, SSFC is
for lesser offences and has limited powers as regards sentences.

67. The ordering of the GSFC is a matter of discretion under the Border
Security Force Rules, 1969 (BSF Rules). A Record of Evidence (ROE) is
prepared by the officer recording the ROE or by another officer deputed to
do so. This happens under Rule 48(1) of the BSF Rules. A certificate is
appended by the officer recording the ROE after the completion of that
exercise.

68. There are four options available to the authority on being presented with
the ROE. Under Rule 51(A) (3) he may (i) dismiss the charge; or (ii) dispose
of the case summarily he has so empowered; or (iii) refer the case to the
competent superior officer for disposal; or (iv) apply to a competent officer
or authority to convene a GSFC for trial of the accused.

WP (C) 19014/2006 & 3010/2010 Page 27 of 45

69. In the present case after the ROE there was a SCOI in terms of Rule 170
of the BSF Rules. The case of the Petitioner is that even before his witnesses
could be examined in defence, the officer recording the SCOI proceeded to
conclude the inquiry and recommend action.

70.Rule 173 (8) reads as under:

―(173)(8) Before giving an opinion against any person subject
to the Act, the Court will afford that person the opportunity to
know all that has been stated against him, cross-examine any
witnesses who have given evidence against him, and make a
statement and call witnesses in his defence.

Provided that this provision shall not apply when such inquiry is
ordered to enquire into a case of absence from duty without due
authority.‖

71. Another administrative action is the issuance of ‗displeasure and

warning‘ under Rule 176-A. In the present case that was invoked and at one
stage it was directed to communicate to the Petitioner the IG‘s displeasure.

72. That the GSFCs both in the initial trial and in the revision trial found the
Petitioner not guilty of the charges is an accepted fact. In fact that is the
reason why the Respondents resorted to Rule 20 of the BSF Rules and in
particular Rule 20(4) read with Rule 20(2). Rule 20 reads as under:
―20. Termination of service of officers by the Central
Government on account of misconduct.

(1) When it is proposed to terminate the service of an officer

under section 10 on account of misconduct, he shall be given an
opportunity to show cause in the manner specified in sub-rule (2)
against such action:

WP (C) 19014/2006 & 3010/2010 Page 28 of 45

 Provided that this sub-rule shall not apply

(a) where the service is terminated on the ground of conduct

which has led to his conviction by a criminal court or a Security
Force Court; or

(b) where the Central Government is satisfied that for reasons, to

be recorded in writing, it is not expedient or reasonably
practicable to give to the officer an opportunity of showing cause.

(2) When after considering the reports on an Officer‘s

misconduct, the Central Government or the Director General, as
the case may be, is satisfied that the trial of the Officer by a
Security Force Court is inexpedient or impracticable, but is of the
opinion, that the further retention of the said officer in the service
is undesirable, the Director General shall so inform the officer
together with particulars of allegation and report of investigation
(including the statements of witnesses, if any, recorded and
copies of documents if any, intended to be used against him) in
cases where allegations have been investigated and he shall be
called upon to submit, in writing, his explanation and defence:
Provided that the Director‑ General may withhold disclosure of
such report or portion thereof if, in his opinion, its disclosure is
not in the interest of the Security of the State.

(3) In the event of the explanation of the Officer being considered

unsatisfactory by the Director General, or when so directed by the
Central Government, the case shall be submitted to the
recommendation of the Director General as to the termination of
the Officer‘s service in the manner specified in sub-rule (4).

(4) When submitting a case to Central Government under the

provisions of sub-rule (2) or sub-rule (3), the Director-General
shall make his recommendation whether the Officer‘s service
should be terminated, and if so, whether the officer should be—
(a) dismissed from the service; or
(b) removed from the service; or
(c) retired from the service; or

WP (C) 19014/2006 & 3010/2010 Page 29 of 45

 (d) called upon to resign;

(5) The Central Government, after considering the reports and the
officer‘s defence, if any, or the judgment of the criminal court, as
the case may be, and the recommendation of the Director-
General, may remove or dismiss the officer with or without
pension or retire or get his resignation from service, and on his
refusing to do so, the officer may be compulsorily retired or
removed from the service with pension or gratuity, if any,
admissible to him.

73. Section 10 referred to in the said rule of the BSF Act reads as under:
―Subject to the provisions of this Act and the rules, the Central
Government may dismiss or remove from the service any
person subject to this Act.‖

74. It would therefore appear that Rule 20 in conjunction with Section 10 is

invoked under the conditions specified in Rule 20(2). The individual
ingredients of Rule 20 BSF Rules are as under:

i) There should be a report on an officer‘s misconduct.

ii) On considering such report the Central Government or the Director

General (DG) as the case may be should be satisfied that the trial of the
officer by a Security Force Court is inexpedient or impractical.

iii) However, such officer should be of the opinion that further retention of
the said officer in service is undesirable.

iv) On forming such opinion the DG shall so inform the officer.

WP (C) 19014/2006 & 3010/2010 Page 30 of 45

v) While informing the officer of such opinion the DG will provide to the
officer
a) particulars of allegation;
(b) to report of investigation (including the statements of witnesses if any
recorded and copies of documents if any intended to be used against him) in
cases where allegations have been investigated;

vi) the DG shall call upon the officer to submit it in writing an explanation
in his defence.

75. The DG may then under Rule 20 (4) give his recommendation to the
Central Government whether the officer should be (a) dismissed from
service or (b) removed from service or (c) retired from service or (d) called
upon to resign. The Central Government after considering the reports and
the officer‘s defence or the judgment of the Criminal Court as the case may
be and the recommendations of the DG may follow either of the
recommendations. If they call upon the officer to resign and he refuses to do
so the officer may be compulsory retired or removed from service with
pension or gratuity, if any admissible to him.

No material against the Petitioner

76. It will thus be seen that the sine-qua non for invoking Rule 20 (2) is
report on an officer‘s misconduct. On repeatedly being asked whether there
was in fact any report of the officer‘s misconduct, Mr. Ruchir Mishra kept
referring to the proceedings of the GSFC themselves. Even when asked if
there is any report of investigation, he again drew the attention of the court

WP (C) 19014/2006 & 3010/2010 Page 31 of 45

to the proceedings before the GSFC and prior to that the ROE.

77. The report that Rule 20 (2) talks of is a report of the officer
‗misconduct‘. If the report relied upon indicates the contrary, in other words,
if the report does not prove the officer‘s misconduct then it would not be a
report that forms the basis of action under Rule 20(2). Where the GSFC
proceedings on two occasions have found the Petitioner not to be guilty of
the offence then obviously the GSFC proceedings themselves cannot form
the basis for the action under Rule 20(2) of the BSF Rules. There will have
to be some material not considered by the GSFC which forms the basis of
the action under Rule 20(2) of the BSF Rules.

78. Even when Rule 20(2) talks of ‗report of investigation‘ (including

statements of witnesses) these are documents that are ―intended to be used
against‘ the officer sought to be removed/terminated. This again cannot be
the very GSFC proceedings which were resulted in his exoneration on two
occasions. There will have to be some material other than that considered by
the GSFC which points to the officer‘s misconduct.

79. From the notes on file and the orders passed on the administrative side it
appears that a view was expressed by the Respondents that there was
adequate material before the GSFC, which somehow the GSFC either
missed or deliberately overlooked and which could have proven the
misconduct of the Petitioner.

80. That very same material has been carefully perused by this Court with

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the assistance of Mr. Ruchir Mishra. Viewed from any angle there is nothing
in the statements of any of the witnesses before the GFSC which even prima
facie indicates to the involvement of the Petitioner in the incident of
stripping of the three Constables by his subordinates. In other words there is
no evidence which goes to show that he actually instructed Subedar A.S.
Jamwal to carry out the said act of stripping. The crucial evidence in this
regard is totally missing. In the absence of any material that could have
actually proven the misconduct of the Petitioner and unless such material
was referred to in the order proposing action under Rule 20(2) and such
material if provided to the Petitioner, the action under Rule 20(2) could not
have been taken.

Discussion of case law

81.1 At this stage, the Court considers it necessary to discuss in some detail
the decision of the Supreme Court in Chief of Army Staff v. Major Dharam
Pal Kukrety (supra). There the Respondent, a permanent Commissioned
Officer of the Indian Army, was tried by a General Court Martial (GCM) on
certain charges. The GCM acquitted him of the charges. The GOC of the
area declined to confirm and sent the matter back to the GCM for a revision.
The GCM after hearing both sides once again found the Respondent not
guilty of the charges. The GOC then reserved confirmation of the finding of
the revision by superior authority viz., the GOC in Central command who
again did not confirm the finding.

81.2 The charges against the Respondent the finding and non-confirmation
thereof were promulgated as required by Rule 71 of the Army Rules.

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Thereafter the Chief of Army staff issued notice under Rule 14 of the Army
Rules stating that since a fresh trial by the Court martial is inexpedient and
the Respondent‘s misconduct as disclosed in the proceedings rendered his
further retention in service undesirable, the Respondent should be asked to
submit his explanation in defence. Along with the said notice copies of the
extracts of the notice and the court martial proceedings were forwarded to
the Respondents.

81.3 The Respondent‘s writ petition was allowed by the Allahabad High
Court. The appeal by the Chief of Army Staff against the said decision was
allowed by the Supreme Court and it was held that
(i) the action of the Chief of Army Staff issuing the impugned notice was
neither without jurisdiction nor unwarranted in law.
(ii) In the absence of any confirmation, whether of the original finding or of
the finding by revision, the finding was not valid.
(iii) Since there were decisions against the holding of a fresh court martial
when finding of a court martial on revision was not confirmed, ordering a
fresh trial by court martial was both inexpedient and impractical. The only
option available was to take action under Rule 14.
(iv) It was however noted that the Chief of Army Staff ought to take into
account the conduct in behaviour of the Respondent during the intervening
period and they have been in conformity with good order and military
discipline and high traditions of the Indian Army the Chief of Army Staff
should consider the desirability proceeding further in the matter.

81. 4 The one distinguishing feature as far as the present case is concerned is

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that unlike the Allahabad High Court in Kukrety, this Court has not
interdicted the SCN. This Court has permitted the SCN to be carried to its
logical conclusion i.e., the passing of an order in relation thereto by the
Respondents. The Court has only directed that it should not be given effect
to till further orders of this Court. The judicial review of the order so passed
under Rule 20 (2) is the exercise presently undertaken. Consequently, while
the decision in Kukrety may be relied upon by the Respondents to argue that
the power to take action under Rule 20 (2) was not precluded it also by no
means precludes this Court from judicially reviewing the order passed
thereunder.

82.1 In S.S. Shekhavat v. Union of India (supra) the Petitioner was a

Commissioned Officer in the Indian Army. He was served with a charge
sheet containing five charges alleging supply of unhygienic meat to the
troops and management by mixing water in the carcasses. He was tried by a
GCM which exonerated him of all the charges. The confirming authority did
not confirm the said verdict instead exercised the right of judicial revision
under Section 160 of the Army Act and remanded the matter to the GCM
with directions.

82.2 On remand the GCM recorded additional evidence examined some

more documents but again reiterated its verdict holding the Petitioner not
guilty of the charges. The Respondents again did not confirm the report of
the GCM. A SCN was issued to the Petitioner calling upon to him to explain
why administrative action to convey appropriate censure of the GOC in C
should not be taken against him. Notwithstanding the objection of the

WP (C) 19014/2006 & 3010/2010 Page 35 of 45

Petitioner the SCM Respondents awarded him Censure of ‗Severe
Displeasure (recordable).‘

82.3 The Petitioner contended before this Court that such a course of action
was not available to the Respondents, ‗that it had no sanction of law and was
a time barred action.‘ Further it had come in the way of his promotion to the
rank of Lt. Colonel. His representation challenging the action under Section
16 (2) of the Army Act was rejected by the competent authority.

82.4 This Court referred to the decision in Dharam Pal Kukrety and the
earlier decisions in Harjeet Singh Sandhu and Major Radha Krishnan
(supra). This Court then summarised the legal position as under:
―a) It is not mandatory for the Confirming Authority to confirm
the findings of a Court Martial given on the 2nd occasion after
remand of the case in exercise of the power exercised by the said
authority under Section 160 of the Army Act.

b) Unless the findings of the Court Martial holding an accused

―guilty‖ or ―not guilty‖ are confirmed, the accused can neither be
treated as ―guilty‖ nor can be treated as ―not guilty‖ for the
offences alleged against him despite his trial.

c) There is no provision under the Army Act or the rules which

empowers holding of a fresh Court Martial when the finding of a
Court Martial is not confirmed even for the 2nd time.

d) In an appropriate case, where holding of fresh court martial is

impracticable or inexpedient; the Chief of Army Staff is
authorized to take action against the incumbent under Section 19
of the Act r/w Rule 14 of the Army Rules which empowers the
Chief of Army Staff even to terminate the service of the
incumbent, of course subject to the order passed by the Central

WP (C) 19014/2006 & 3010/2010 Page 36 of 45

 Government in this regard.

e) However, the existence of this power may also include passing

of a lesser sentence other than termination of services including
award of censure in view of their policy decision (supra) in cases
covered by para 5 and 6 thereof.

f) The term used in Sub-rule 2 of Rule 14 which says that a fresh

Court Martial is impracticable or not reasonably practicable has
an element of subjectivity in arriving at the satisfaction by the
Chief of Army Staff/ GOC in C and/or the Central Government
as the case may be, regarding the misconduct committed by an
accused and needs to be reached after taking into consideration
the then prevailing facts and other circumstances as also the
reports of court martial and the misconduct of the accused.

g) As held in Sandhu’s case, situation may arise where it may be

impracticable or inexpedient to have a fresh Court Martial within
the time prescribed under Section 122 of the Army Act, yet there
may be cases where the power vested in the Army Authorities
under Section 19 read with Rule 14 cannot be excluded even if
the report of the GCM is not confirmed for the 2nd time.

h) Exercise of such power may be vitiated as an abuse of power

in a given case. Such power cannot be exercised only because the
findings or the sentence does not meet the expectations of the
Confirming Authority. The power available to the Authorities
under Section 19 read with Rule 14 stands vitiated if it is shown
to be a colourable exercise of power or an abuse of power which
at times has been described in administrative law as fraud of
power, or is only an attempt to enforce will of superior authorities
without justification.

i) A misconduct committed number of years ago, for which

action was not taken promptly within the prescribed period of
limitation may also be a factor to vitiate such proceedings.
However that would all depend on the facts and circumstances of
the case and no hard and fast rules can be laid down in this

WP (C) 19014/2006 & 3010/2010 Page 37 of 45

 behalf.

j) Exercise of such power is always subject to judicial review in

accordance with the well settled principles of law governing
review of Administrative action. As and when it is shown that the
exercise of power is vitiated by mala fide and found to be based
upon irrelevant consideration, or is found to be a clear case of
externs or what is sometimes called fraud of power it may be set
aside.

k) Normally the discretion so exercised must be presumed to

have been rightly exercised and is not to be readily interfered
with, even if two views are possible.

l) In terms of policy letter No. 32908/AG/DV-I power of

awarding of censure is very much available to the Chief of Army
Staff/GCC in appropriate case where it is not practicable or
expedient to hold a fresh Court Martial; provided the offence
alleged to have been committed are offences involving moral
turpitude, fraud or dishonesty and must be tried by Court Martial
or by a Civil Court.

m) Award of Censure has also been described as Custom of

Service even though such award is not part of statute but the
award of the same would also be guided by the Policy framed in
this regard and is subject to para 5 and 6 of the same.‖

82.5 The Court did not stop there but proceeded to consider whether the
―competent authority had sufficient material before it to arrive at the
satisfaction to award such a punishment on administrative side in the facts of
the present case and that the case is not a case of exercising fraud in
Administrative Action.‖

82.6 The Court then examined the evidence and came to the following

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conclusion:
―On having gone through the original record which contains the
process of reasoning as well as analysis of evidence and
reference to relevant instructions which were not followed and
have been simply ignored by the Court Martial in returning the
findings of Not Guilty, we are of the view that the respondents
were justified in forming the opinion to award the punishment
of censure to the petitioner in respect of the subject matter of
the present writ petition. We are satisfied that in the present
case the reasons which have been gone into in the minds of the
concerned Army authorities are sufficient to have adopted the
course of action in passing the impugned order more so because
the Show Cause Memo has been issued about the administrative
lapses and lack of supervision on the part of the petitioner. The
case is clearly covered by para 6 of the Policy Guidelines for
imposition of Censure in such cases.‖

83. In the present case while it is true that it was open to the Respondents to
resort to Rule 20 after exoneration of the Petitioner by the GSFC twice, the
Respondents are obliged to satisfy the Court that the necessary conditions
for invocation of Rule 20 stood fulfilled.

84. At this stage, it must be noticed that the decision in Tarsem Singh v.
State of Punjab was in the context of the subjective satisfaction of the
authority that it is ―not reasonable practical to hold an inquiry‖. This was
also reiterated in the subsequent decisions in Preeti Pal Singh v. State of
Punjab (2006) 13 SCC 314 where it was held that existence of an
exceptional situation must be shown to exist ―on the basis of relevant
materials‖ as emphasized in Tarsem Singh the subjective satisfaction of the
authority had to be based on ‗objective criteria.‘

WP (C) 19014/2006 & 3010/2010 Page 39 of 45

85. In the present case even if the Court is able to accept the plea of the
Respondents that with the GSFC having held the Petitioner not guilty of the
charges twice, it was not practical to order another court martial, the fact
remains that Rule 20 (2) also required there to be sufficient material in the
form of a misconduct report of an officer or a report of investigation on the
basis of which the action under Rule 20 could be initiated. The Court is not
able to accept the plea of the Respondent that the very orders of the GSFC
and the evidence placed before it which resulted in acquittal of the Petitioner
of the same charges could form either the ‗report of the officer‘s
misconduct‘ or the report of investigation which Rule 20(2) talks of. It
appears that these reports were to be relevant for the purposes of the
authority satisfaction on two counts: i) it is inexpedient or impracticable for
another trial by a Security Force Court (ii) retention of the officer in services
undesirable. If the report points to the opposite, it could not be treated as
relevant material to arrive at the above satisfaction on two counts.

86. Notwithstanding the above this Court on examining the entire evidence
which the Court is asked to treat as the report of the officer‘s misconduct is
unable to be persuaded that any reasonable person given the same material
would be satisfied subjectively, if objective criteria were to apply that it is
undesirable to retain the Petitioner in service. There is absolutely no material
whatsoever that would persuade the Court to come to such conclusion.

87. In this context it must be noticed that in S.S.Shekhavat on examining the

material this Court was able to concur with the authorities on the
undesirability of the Petitioner being retained in service. In the present case,

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however, the Court is not so satisfied. The notes on file do show that the
Respondents acted arbitrarily by seeking to subject the Petitioner to severe
punishment even while letting of the subordinates who were actually
involved in the incident of stripping of the Constables with milder
punishment.

Action is malafide
88. There is merit in the contention of the Petitioner that the action taken
against him was malafide. The manner in which the Respondents have gone
about straining the language of the provision to justify their action places
credence to the submission of the Petitioner that the action was colourable
exercise of power based on extraneous considerations.

89.1 In Amiya Ghosh v. the Union of India (2017) 1 Calcutta LT 1 the

Petitioner a Constable of the BSF was found not guilty by the GSFC on a
very serious charge of causing the death of a minor girl. The confirming
authority did not concur with the finding of the GSFC and passed a revision
order requiring the GSFC to again try the case. The GSFC again reiterated
the earlier finding of not guilty. Thereafter, Section 11 of the BSF Act read
with Rule 22 was invoked and a show cause notice was issued to the
Petitioner calling upon him to explain why administrative action should not
be initiated against him.

89.2 That SCN was challenged before the Calcutta High Court. After
analysing the relevant case law and the provisions the High Court
summarised the legal position and in that process held that recourse could be

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held to Rule 22 of the BSF Rules even where findings were returned by the
GSFC. It was held that the conclusions recorded by the confirming authority
that the findings of the GSFC are ‗not convincing‘ and ―perverse‖ and
against the weight of evidences reflected his ipse dixit because it did not
actually advert specifically to the points of disagreement.

89.3 The Court then proceeded to examine the merits of the case and the
evidence and came to the conclusion that indeed there was no evidence to
proceed against the Petitioner. They again therefore decided not to revert the
matter to the confirming authority and set aside the show cause notice.

90. In the present case as already noticed, the Court has permitted the
Respondents to proceed to the next date after the SCN cause notice. No
reasons for disagreeing with the GSFC‘s conclusions have been given
except saying
―In the present case, in spite of sufficient evidence and material
being available on record, the GSFC gave the findings which
were against the weight of evidence. The competent authority
i.e. DG BSF did not find your explanation to be satisfactory
and was of the opinion that your further retention in the service
was undesirable and that you should be called upon to resign
and in case of your failure to do so you should be retired from
service with pensionary benefits under the provision of BSF
Rule 20 read with Section 10 of the BSF Act and accordingly
decided to forward the case to Central Govt.‖

91. The aforementioned reasons are hardly convincing particularly when the
entire evidence has been analysed by the GSFC to come to the conclusion
that the Petitioner is not guilty of the charges for which he was tried.

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Conclusions in W.P. (C)19014 of 2006

92. For all of the aforementioned reasons, the Court finds no justification
whatsoever in the Respondents passing the order dated 17 th June, 2009
terminating the services of the Petitioner with pensionary benefits.
Accordingly, the said order dated 17th June, 2009 is set aside.

93. In that view of the matter, it is not necessary for the Court to separately
set aside the SCN which led to the passing of the above order dated 17th June
2009. The Petitioner is directed to be considered for promotion to the next
higher post on the basis that he was not terminated him from service with all
consequential benefits and seniority including arrears of pay. His promotion
will relate back to the date on which his juniors were promoted.

Findings in W.P. (C) 3010 of 2010

94. As far as W.P. (C) 3010 of 2010 is concerned, the first prayer in that writ
petition has been rendered infructuous more or less with the Petitioner
having been posted now to Calcutta.

95. As far as the second prayer is concerned, the ordering of a COI into the
failure of the Petitioner to attend his duties in the CPC cannot any longer be
enquired into for the simple reason that he was not allotted any duties in the
CPC. It will be raking up a dead and stale claim.

96. There is also merit in the contention of the Petitioner that when the
Petitioner sought copies of the handing/taking over certificates, charge

WP (C) 19014/2006 & 3010/2010 Page 43 of 45

assumption, relinquishment reports etc. through the RTI, he was not
provided those documents. He filed an appeal to the Appellate Authority of
the RTI Act. Vide letter dated 22nd December, 2010 the reply was that
―Shri S.K. Tyagi, Commandant took over the charge of CEO
cum GM from Shri R K.Singh instead of petitioner, which was
erroneously mentioned due to clerical mistake, and as such
documents requested are not available with Respondents.‖

97. The above action of the Respondents in alleging that the Petitioner
handed over charge of CEO-cum-GM to Sh. S.K. Tyagi on 20th July, 2009
stands falsified in the above manner.

98. Further as pointed out by the Petitioner if it is the case of the

Respondents that the Petitioner abandoned his post in the CPC, then they
had to necessarily issue a SCN in terms of Section 62 of the BSF Act
alleging his absence. Under Section 61 of the BSF Act, a CEO had to be
ordered after one month of alleged absence. The Petitioner was never
declared a deserter under Section 62 (2) if indeed he was absent from 3rd
July, 2009 as alleged. The COI was ordered against the Petitioner nine
months after his alleged absence from 3 rd July, 2009 in contravention to the
Section 61 & 62 of the BSF Act read with the applicable rules. There is also
merit in the contention that the one man inquiry has been ordered contrary to
Rule 172 of the BSF Rules. The impugned order proposing the one man
inquiry lacks the material particulars to justify its invocation.

99. For all of the aforementioned reasons, the Court sets aside the impugned
order dated 12th April, 2010 passed by Respondent No.6 for proposing the

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COI against him. W.P. (C) 3010 of 2010 is allowed. The pending
application, if any, is also disposed of.

100. In each of the writ petitions, costs of Rs. 50,000/- will be paid by the
Respondents to the Petitioner within a period of eight weeks from today.

S. MURALIDHAR, J.

SANJEEV NARULA J.
APRIL 12, 2019
mw

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