Dr. Inderjit vs Uoi & Ors.
2009 Latest Caselaw 4841 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Reserved on: 24th November, 2009
                   Judgment Delivered on: 26th November, 2009

+                       WP(C) No. 189/1999

       DR. INDERJIT                           ....Petitioner
                 Through:     Mr. Anil Gautam, Advocate

                              Versus

       UOI & ORS.                           ....Respondents
                 Through:     Mr. Ashwani Bhardwaj, Advocate


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?       Yes

     3. Whether the judgment should be reported in the
        Digest?                                   Yes


PRADEEP NANDRAJOG, J.

1. On 29.1.1996 the Director General BSF issued a

notice to show cause and served the same upon the petitioner

requiring him to respond as to why penalty of severe

displeasure be not imposed upon him. The factual basis and

the reasons for issuing the notice to show cause is contained

in sub-paras (a) to (e) of Para 3 of the show cause notice. It

was informed to the petitioner as under:-

"(a) On 21 Feb 1995 a party comprising of 2 SOs and 53 ORs drawn from various sub-units and under command of SI (G) R.C.Das was detailed and dispatched for conducting area domination in general area of Bhalla - Parannu falling within the area of your Coy; and

(b) One SO and 35 ORs out of the said party were launched into operations in unfamiliar terrain without properly bringing them and providing adequate knowledge of the prevailing tactical situation in that area. Thus they were put on job all by themselves. Detailment of only one constable as guide under the circumstances was not sufficient specially when the said party was sent at about 14:45 hrs during winters when the days were short and;

(c) As Coy Comdr. of the coy deployed in that area you did not personally ensure that area familiarization of the newly induced troops was done under your personal supervision and that they were launched into operations after proper briefing and with adequate number of guide and;

(d) Due to poor motivation and training, inadequate leadership and knowledge of area, this party was ambushed by a group or militants in area of village groundi at about 16:10 hrs on the very first patrolling carried out by them, resulting in death of 5 of the party personnel and injury to another 4 and;

(e) Despite receiving timely information about the ambush which occurred in the area of responsibility of your coy and orders to reinforce the ambush patrol party, you failed to reach the place of occurrence before 11:30 hrs on 22 Feb 1995."

2. The petitioner submitted a detailed response to the

notice show cause aforenoted and to summarize the same,

wrote back that he was stationed at the Malothi Post of the

battalion where the headquarters of the battalion was situated

on the date in question and that Malothi was situated atop a

ridge. The battalion had a platoon post at Bhalla which was

down hill and to reach the said post one had to proceed on

foot and the distance was coverable in 2 hours. He informed

that as the area was heavily infested with infiltrators

(terrorists) 50 jawans from Bhaderwa outpost were deputed to

the platoon force stationed at Bhalla. The said 50 persons

reached Bhalla on 20.2.1995, on which date the petitioner was

stationed at Malothi. SI Ram Chander Das was the head of the

group of the said 50 jawans. That on 21.2.1995 at around 1:30

or 2:00 PM, while at Malothi the petitioner received information

from SI Pushkar Singh the Post Commander at Bhalla that 50

jawans were at the Bhalla outpost. At that point of time i.e. at

around 2:00 PM the petitioner left with some jawans for patrol

duty in a direction opposite to the Bhalla outpost. That the

petitioner had nothing to do with the directions issued to SI

Ram Chander Das and his force to proceed on patrol duty in

the area around Bhalla outpost. The petitioner further

informed that at around 16:00 hrs he heard sound of gunfire

booming in the hills and realized that an incident i.e. an

encounter was taking place with terrorists at the place

wherefrom sound of gunfire was booming. He also intercepted

wireless message between SI Ram Chander Das and the Post

Commander at Bhalla that an ambush had taken place and

that reinforcement was being rushed from all directions. The

petitioner informed that he immediately proceeded with his

men towards the Bhalla outpost which was downhill and when

the troops under his command were on the way, even they

came under fire from the terrorists. The terrain where the

petitioner and his troops came under fire was a trough and this

slowed down their progress towards the place where SI Ram

Chander Das and his men were having an encounter with the

terrorists. The petitioner and his men had to use cover fire to

proceed. With great difficulty the petitioner could lead his

men, who were under constant fire, to a nalla (stream) which

was at a distance of 400 meters from the place where SI Ram

Chander Das and his men were ambushed. His men took up

position under his command. There was heavy firing. It

became dark. The petitioner was compelled to ask his men to

desist from firing lest in the cross fire, in the dark, his men be

shooting at the jawans under the command of SI Ram Chander

Das and vice-versa. It was only by 11:00 PM that

reinforcement from other quarters also reached and as a result

due to the combined efforts of all, whatever could be salvaged

was salvaged. The petitioner highlighted that the

commandant incharge of the battalion Sh.N.D.Palan and the

adjudant Sh.D.S.Sandhu had directed SI Ram Chander Das and

his men to secure the area near the platoon post at Bhalla.

3. In a nutshell, pertaining to sub-paras (a) to (d) of

the show cause notice, the petitioner responded by saying that

he was not incharge of the Post at Bhalla and that he had no

role in deputing SI Ram Chander Das and his men to proceed

on patrol duty on 21.2.1995 and thus the charge against him

of sending jawans into operations in unfamiliar terrain could

not be sustained nor could the charge of commencing

operations in late afternoon be sustained, much less the

charge of showing poor motivation and inadequate leadership.

The charge vide sub-para (e) was refuted by highlighting the

distance between Malothi where petitioner was stated and

Bhalla where the encounter had taken place; the nature of the

hilly terrain and the time of minimum 2 hours required to

cover the distance on foot; it was highlighted by the petitioner

that he and his troops came under heavy fire when they were

on their way and that his men could progress ahead by giving

cover fire which hampered the progress and that by the time

he and his men could reach the rivulet at a distance of 400

meters where the encounter between terrorists and the men

under the command of SI Ram Chander Das was taking place,

it became dark. The petitioner gave reasons for withholding

fire lest there was cross fire between his men and the fellow

BSF jawans under the command of SI Ram Chander Das.

4. Needless to state it was expected that the DIG BSF

would deal with the contentions urged by the petitioner and

look into the relevant record. The relevant record was the

message flashed by the Commandant of the battalion on

22.2.1995 i.e. the very next day when the incident took place;

the evidence recorded as also the findings returned at a Court

of Inquiry ordered by the D.I.G. (BSF); the orders passed

thereon by the DIG BSF and the IG BSF.

5. The Director General BSF disposed of the show

cause notice issued by him imposing the penalty of severe

displeasure which was proposed to be inflicted upon the

petitioner. The order passed by the DIG BSF was

communicated to the petitioner on 13.2.1997 under the

signatures of Sh.V.K.Gaur, Deputy Director (Personnel) BSF.

The same reads as under:-

"Dr.Inderjit, Deputy Commandant (IRLA No.3101) of 162 Bn. BSF was issued "show cause notice" for tentatively proposed award of DG‟s severe displeasure vide this HG Letter No.C-

14011/89/95/CC/Pers./BSF/277-80 dated 29 Jan 1996.

2. The explanation or reply put forward by Dr.Inderjit Deputy Commandant 162 Bn.BSF vide his letter No.Ops/Groundi/96/ dated 12 Oct 1996 received under SHQ BSF Indereswar Nagar, Letter

No.Ops/Groundi/96/8057-58 dated 13 Oct 1996 has been examined in detailment this HQ.

3. The Director General, BSF after careful examination of the entire case has found the explanation/reply of the officer unsatisfactory.

4. The Director General is, therefore pleased to order award of his displeasure instead of proposed „severe displeasure‟ to Dr.Inderjit, Deputy Commandant of 162 Bn.BSF for his following acts of omission and commission:-

(a) On 21 Feb 1995 a party comprising of 2 SOs and 53 ORs drawn from various sub-units and under command of SI (G) R.C.Das was detailed and dispatched for conducting area domination in general area of his coy and;

(b) One SO and 35 ORs out of the said party were launched into operations in unfamiliar terrain without briefing them properly and providing adequate knowledge of the prevailing tactical situation in that area. Thus they were put on job all by themselves. Detailment of only one constable as guide under the circumstances was not sufficient specially when the said party was sent at about 14:45 hrs during winters when the days were short and;

(c) As Coy Comdr. of the coy deployed in that area he did not personally ensure that area familiarization of the newly induced troops was done under his personal supervision and that they were launched into operations after proper briefing and without adequate number of guide and;

(d) Despite receiving timely information about the ambush which occurred in the area of responsibility of his coy and orders to reinforce the ambush patrol party, he failed to reach the place of occurrence before 11:30 hrs on 22 Feb 1995.

I am, therefore, directed to convey the award of DG‟s displeasure to Dr.Inderjit, Deputy Commandant of 162 Bn. BSF for the reasons mentioned hereinabove."

6. The result of the severe displeasure inflicted upon

the petitioner is that when a DPC met in the year 1997,

persons junior to the petitioner were promoted as 2 IC in

November 1997 because the DPC took into consideration the

severe displeasure inflicted upon the petitioner by the Director

General BSF.

7. A perusal of the order dated 13.2.1997, ex facie

reveals that the Director General BSF has simply reproduced

sub-paras (a) to sub-paras (e) of para 3 of the show cause

notice and without considering the reply submitted by the

petitioner thereto has mechanically confirmed the proposed

penalty of severe displeasure. Not a word, far from a

sentence, being further remote being a paragraph, is to be

found in the order dated 13.2.1997. It needs no legal skill or

acumen to label the said order as a non-speaking order. No

reasons have been stated as to why the reply filed by the

petitioner was found to be unsatisfactory.

8. What is a speaking order? An order which reveals

that the mind of the maker of the order has come to grips with

the issues raised and decides the said issues with reference to

the evidence on record and logically brings out the process of

reasoning in the mind of the maker of the order is a speaking

order. Howsoever briefly it may be written, to be entitled to be

put in the category of a speaking order, the order must show

as aforenoted.

9. It would thus be ground enough to quash the order

dated 13.2.1997. But what would happen then? After 12

years we would require the Director General BSF to reconsider

the matter and pass a speaking order. It is unfortunate that

the instant petition has remained pending in this Court; what

could this Court do in the teeth of docket explosion in this

Court. Thus, since the matter was debated at length at the

hearing held on 24.11.2009, and as consented to by learned

counsel for the respondents, we proceed to adjudicate on

merits for the reason the requirement of justice compels us to

decide whether there is any material on record wherefrom the

gravement of the allegations against the petitioner can be

sustained.

10. The first and foremost record of what happened on

21.2.1995 is the message flashed by the Commandant to the

superior authorities on the very next day i.e. 22.2.1995.

Relevant would it be to note that the message highlights that

when the ambush took place near Bhalla Post, the petitioner

was at the Malothi Post and was incharge of the post and was

on patrol duty with jawans and on immediate receipt of

information about the encounter with the terrorist near Bhalla

Post immediately took control of the situation by moving his

jawans to the Bhalla Post; towards the place where the

encounter was taking place between the troops led by SI Ram

Chander Das and terrorists. The second relevant document is

the detailed report dated 3.3.1995 furnished by the

Commandant Shri N.D.Palani, which specifically notes as

under:-

"4. However, No.67900075 SI R.C.Das, the party-in- charge (Assisted by No.91002979 SI V.K.Arya), was personally briefed by the Adjudent and the Commandant separately about the importance of alertness and vigil while on patrolling duty, in the area between Bhalla and Paranu. He was specially instructed to move on the hilly riges tactically always remembering "FIRE AND MOVE" and employing the support of auto weapons like LMG, BMG and field weapons like 2" Mor. He was also briefed about the action to be taken when encountered by militants.

5. xxxxxxxxx After lunch and rest the post Cmdr. Bhala post, in consultation with SI R.C.Das, sent out a patrol in general area Bhala temple, Kotla, Groundi (SQ 5201), Thalsara (SQ 5102) and back to Bhala (SQ 5202). xxxxxxxxxxx At about 1610 hours, it was reported by Bhala post/R C Das, Patrol Cmdr. that the party came under fire in area Groundi from a double storeyed RCC Building of the Vill-Groundi. It was also informed that there was no injury to any of own personnel and that the troops had almost surrounded the house which was on corner side of the village. Details of the house, position of the patrol party etc. are shown in the sketch enclosed. Immediately Shri D.S.Sandhu, AC doing the duties of Adjudent, was ordered to take out a strong party and reach the place of occurrence as quickly as possible, simultaneously, the Coy Comdt. „B‟ Coy, Ex-Malothi (GR 525006), also moved with the strong party along with MMG det to the place of occurrence enroute Dr.Inderjit, DC Coy Comdr „B‟ Coy, also came under fire from Dugga (SQ

5201) village whom he engaged instantly. The patrol party in fact, was fired upon from three directions namely from the corner house in Groundi, a house from the height in Dugga village and from Thalsara village. xxxxxxxxx The Commandant was monitoring the situation and controlling the entire scenario from Tac HQr as alone officer available. xxxxxxxxxxxxxx

9. xxxxx

10. xxxxx

11. Earlier, on receiving information about the encounter Coy Cmdr. of that area Dr.Inderjit, DC with a party of 14 ORs moved from Malothi at about 1630 hrs along with a MMG Det. Malothi is about 2,5 Km south from the place of occurrence. On his way to place of occurrence he was also fired upon from Dugga village. He could not, as such, further move from that point, instead kept that militant group engaged. Dugga is about one KM away from the place of occurrence, in between Dugga and place of occurrence there is a big nala Kankhela Nala (SQ 5201). Party of 14 personnel under HC Nazrul Islam of „B‟ Coy were moving the axis to Malothi to report to Coy HQ. When the encounter took this party had cross Kankhela Nala and was fired upon by the militants from Vill-Dugga side. However, the DC who was enroute on his offensive move. Dr. Inderjit, DC took his party also under his command for further actions.

12. xxxxxx

13. xxxxxx

14. xxxxxx

15. xxxxxx COMMENTS :

xxxx

2. xxxxx

3. xxxxxxxxxxxx Though, Dr.Inderjit DC Coy Comdr Malothi, reacted promptly, he could not reach the

place of occurrence, as he also came under fire in Dugga village enroute."

11. From a perusal of the afore-noted extracts from the

detailed report submitted by the Commandant Shri N.D.Palan

on 3.3.1995, it is apparent that the stand of the petitioner was

independently justified inasmuch as in para 4 and 5 of the

report it is clearly mentioned that SI Ram Chander Das was

personally briefed by the Adjutant and the Commander

separately as to how the combing operations were to be

performed and that at the Bhala post the Commander of the

Post in consultation with SI Ram Chander Das sent out the

patrol. We may note that SI Pushkar Singh was the

Commander of the Post. Para 5 of the report brings out that

when the men under charge of SI Ram Chander Das moved

out, the petitioner was commanding at Malothi Post and with

his party was on patrol duty. Same paragraph brings out that

when petitioner learnt about the ambush he immediately

proceeded towards the place of the ambush. Para 11 of the

report brings out that the petitioner and his men came under

fire near Dugga village which was at a distance of about 1 km

from the place where SI Ram Chander Das and his men were

facing an encounter and that as the petitioner and his men

crossed Kankhela Nala, they once again came under fire from

the militants.

12. Commenting upon the incident, the concluding

portion of the report extracted herein above clearly brings out

that the petitioner and his men reacted promptly but could not

reach the place of occurrence due to having come under fire

enroute. Ex facie, each and every fact stated by the petitioner

in his reply to the notice to show-cause finds independent

corroboration in the report submitted by the Commandant and

we see no reason why the Director General BSF should have

ignored the said report.

13. The third relevant documentary evidence relied

upon by the petitioner is the report of the Court of Inquiry

directed to be conducted by the DIG BSF of the Northern

Region. The said Court of Inquiry has clearly returned a

finding that the Adjutant, Assistant Commandant D.S.Sandhu

and the Commandant had taken the decision that SI Ram

Chander Das and his men would comb the area around Bhalla

Post and it was they who gave the briefing to SI Ram Chander

Das. The Court of Inquiry also highlights that on 21st February

1995 the petitioner and his men were on patrol duty around

Village Groundi which was far away from Bhala Outpost and

that the BSF patrol was trapped in a bowl like location with the

militants occupying the heights when SI Ram Chander Das and

his men came under fire. The Court of Inquiry highlights that

when SI Ram Chander Das sent a wireless message to the Post

Commander Bhalla informing about the encounter, the

petitioner and his men immediately moved towards Bhalla and

faced resistance from militants at village Dugga and when

they overcame the resistance, darkness had set in. The Court

of Inquiry concluded that: the Commanders at all level

definitely appreciated the scenario under catastrophic

condition and tried to adjust their troops for retaliatory and

aggressive action but the devastating fire of MMGs had caused

a heavy damage/casualties. The report concludes by writing

that if there was anyone to blame, SI Pushkar Singh the Post

Commander at Bhalla Post was responsible as he was well

conversant with the topology of the area and knew that

militants could be present in the area, but failed to provide a

proper guide to SI Ram Chander Das.

14. Relevant would it be to note that the DIG BSF who

ordered the inquiry concurred with the opinion of the Court.

We may further note that the Inspector General BSF also

concurred, noting that it appears to be case of pre-planned

ambush by the militants and it was an apparent case that

somebody had leaked out information to the militants that a

combing operation would be executed. We further note that

the Inspector General BSF has returned a definite finding in the

following words: As it happened, on being ambushed, no

worthwhile pursuit or QRT operation could prove effective.

15. Relevant would it be to note that the petitioner

relied upon the proceedings of the Court of Inquiry; the

findings returned; the acceptance thereof by the DIG BSF as

also the IG BSF. All of which have been ignored by the

Director General BSF.

16. The only worthwhile thing which was pointed out to

us by learned counsel for the respondents at the hearing of the

appeal was that, in the Court of Inquiry, the petitioner

admitted that on 21st February 1995 at about 14:00 Hours he

was told that 12 personnel had arrived at Bhalla Post after

operation and that 50 personnel who had also arrived at Bhalla

would further proceed to Jammu for opening the Bhalla-Doda

access. Therefrom, learned counsel for the respondents

sought to urge that it was apparent that the petitioner knew

about SI Ram Chander Das and his men proceeding for

combing operations and that it was his duty as a Commander

to take effective charge i.e. ensure that SI Ram Chander Das

and his men were sent in the company of somebody who knew

the topology of the area.

17. We are surprised at the submission made.

18. As noted above, Bhalla Post is at a considerable

distance from the post at Malothi. The petitioner was at

Malothi post as Commander in charge of the post on

21.2.1995. His learning at 14:00 Hours that SI Ram Chander

Das and his men would be leaving Bhalla Post for combing

operations is neither here nor there for the reason it was

around same time that SI Ram Chander Das and his men had

left Bhalla Post. We wonder as to what role could the

petitioner had played from Malothi with respect to the

operations at Bhalla Post. That apart, the issue at hand is

whether the petitioner was responsible for the combing

operations undertaken by SI Ram Chander Das and his men at

Bhalla Post. Obviously, he had no role in the same. The

petitioner was commanding the Malothi Post. He was not the

Commandant of the unit. The Commander of Bhalla Post was

SI Pushkar Singh and it was he who ought to have ensured that

somebody having knowledge of the topology of the area

should accompany SI Ram Chander Das and his men.

19. No material whatsoever was shown to us that the

petitioner was responsible for deputing SI Ram Chander Das

and his men to carry out combing operations on 21.2.1995,

much less directed that operation should commence at 14:30

Hours in the afternoon. The question of the petitioner being

the Company Commander of the area i.e. Bhalla Post does not

arise since he was the Company Commander at Malothi Post.

The question of the petitioner showing inadequate leadership,

poor motivation and training does not arise. Thus, the factual

foundation of the allegations in sub paras (a) to (d) of the

show-cause notice are found wanting and without any basis.

On the contrary, the same conclusively stand disproved by the

message flashed by the Commandant on 22.2.1995 as also the

evidence and the finding returned at the Court of Inquiry. The

allegation and the charge in para (e) of para 3 of the show-

cause notice of the petitioner reacting slowly and reaching late

the place where SI Ram Chander Das and his men were having

an encounter with the militants stands clearly disproved in the

afore-noted documents. The same bring out that the

petitioner was on patrol duty at Malothi which was at a

distance which required at least two hours to cover the journey

by foot to reach Bhalla Post and that on the way the petitioner

and his men came under fire from the militants. They had to

resort to cover fire to move ahead. Overcoming the resistance

they moved ahead and by the time they reached the rivulet at

a distance of about 400 metres from the place where SI Ram

Chander Das and his men were having an encounter with the

militants, it became dark. Likewise, other men in the area also

zeroed to the place in question. The militants had a height

advantage and this further hampered the operations. It is

apparent that the stand of the petitioner that in darkness if his

men had resorted to firing, there was a possibility of cross-fire

between his men and other BSF jawans is justified.

20. Looked at from any angle, it is apparent that the

petitioner has been made to suffer for no fault of his.

21. Lest the command structure of BSF is adversely

affected we refrain from commenting any further.

22. The writ petition is allowed. The impugned order

dated 13.2.1997 imposing penalty of severe displeasure

inflicted upon the petitioner is quashed.

23. A mandamus is issued directing the respondents to

convene a Review DPC as on November 1997 and reconsider

the candidature of the petitioner for promotion to the post of 2

IC, ignoring the penalty of severe displeasure. If the petitioner

is found entitled to be promoted, we direct that a promotion

order be issued granting promotion to the petitioner to the

post of 2 IC with effect from the date the person immediate

junior to the petitioner was promoted. The petitioner would be

entitled to the benefit of seniority and pay, including arrears of

pay and all other allowances and all benefit of service with

retrospective effect from the date he is so promoted; if found

eligible for promotion.

24. Before concluding we note that during the

pendency of the writ petition the petitioner has been promoted

to the post of 2 IC and while complying with the mandamus as

per para 23 above, if the petitioner is given retrospective

promotion, while fixing the pay and allowances including

increments the pay received by the petitioner in the post of 2

IC would be adjusted.

25. The petitioner is held entitled to cost in sum of

Rs.11,000/- which shall be borne by the respondents.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE November 26, 2009 mm / DHARMENDER