Delhi High Court
Dinesh Kumar vs Uoi &Ors. on 25 February, 2010
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.5523/2008
% Date of Decision: 25th February, 2010
DINESH KUMAR ..... Petitioner
Through: Ms. Meenu Mainee, Advocate
versus
UOI &ORS. ..... Respondents
Through: Dr. Ashwani Bhardwaj & Mr.
Jitender Chaudhary, Advocates
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers may
be allowed to see the judgment? : No
2. To be referred to Reporter or not? : No
3. Whether the judgment should be reported
in the Digest? : No
% JUDGMENT (Oral)
VIPIN SANGHI, J.
1. The petitioner has preferred this writ petition to challenge
the orders dated 27th May, 2007 and 24th December, 2007 passed by
the respondents. By the first order dated 27th May, 2007 the
respondents i.e. the Border Security Force have terminated the
services of the petitioner who was serving with them as a Constable,
under Rule 26 of the Border Security Force Rules, 1969. The
subsequent order dated 24th December, 2007 has been passed
rejecting the representation under Rule 28A of the Border Security
Force Rules, 1969, made by the petitioner seeking reinstatement in
service.
2. The submission of Ms. Mainee, learned counsel for the
petitioner is that though the petitioner had received various
punishments during the tenure of his service, the last of these
punishments was awarded in the year 2001, and from that time
onwards till the passing of the impugned order on 27th May, 2007
there were no further punishment awarded or adverse remarks
communicated to the petitioner which could justify the termination of
his services by resort to Rule 26 of the Border Security Force Rules.
She submits that there was no immediate cause for the respondents
to invoke Rule 26 when it was done. The service of the petitioner had
been blemishless between 2001 and 2007, and the impugned action
was, therefore, arbitrary and whimsical.
3. Rule 26 of the Border Security Force Rules, 1969 reads as
follows:
"26. Retirement of enrolled persons on
grounds of unsuitability - Where a Commandant
is satisfied that an enrolled person is unsuitable to
be retained in the Force, the Commandant may,
after giving such enrolled person an opportunity of
showing cause (except where he consider it to be
impracticable or inexpedient in the interest of
security of the State to give such opportunity),
retire such enrolled person from the Force".
4. Before passing the impugned order dated 27th May, 2007
the respondents issued a show cause notice dated 07th April, 2007 to
the petitioner, requiring him to explain and show cause, as to why his
services be not terminated by resort to Rule 26 aforesaid. The
punishments earlier imposed upon the petitioner were noted in the
said show cause notice issued to the petitioner, and the same read as
follows:
"S/No. BSF Act Punishment Date of Punishment
01. U/S 19 (a) 07 days RI 12.10.1993
02. U/S 19 (a) 14 days RI 03.01.1996
03. U/S 19 (a) 14 days RI 24.11.1997
04. U/S 40 14 days RI 19.05.1998
05. U/S 19 (a) 07 days life 05.10.1998
confinement
06. U/S 19 (b) 07 days life 13.05.1999
confinement
07. U/S 19 (b) 28 days RI 22.05.2000
08. U/S 19 (b) 28 days RI 04.06.2001"
Besides these punishments it was also observed that the
petitioner had also received 02 warnings and 01 Show Cause Notice.
The petitioner submitted his reply to this notice, whereafter the order
dated 27th May, 2007 came to be passed.
5. The respondents were called upon to file their counter
affidavit. The same has been filed. The respondents have disclosed
that, apart from the aforesaid punishments, the record of the
petitioner even in the subsequent years has been far from
satisfactory. In the counter affidavit, the respondents have detailed
the annual assessments of the petitioner as endorsed in his service
record, from the year 1999-2000 onwards till 2005-2006 by the
different Company Commanders, which are as under:
"1999-2000 - A below average Const. He is habitual of
overstaying leave.
2000-2001 - An indisciplined Const who is habitual of
overstaying leave.
2001-2002 - A totally indisciplined Const. He is habitual of
taking liquor and quarreling with superiors.
2002-2003 - He is habitual to taking liquor and below
average Const.
2003-2004 - As above
2004-2005 - Habitual drinker and not committed to duty,
an average Const.
2005-2006 - Average."
6. Since the petitioner disputed the knowledge of his aforesaid
service record, we directed the respondents to produce the original
service record of the petitioner. The same has been produced and we
have perused the same. A perusal thereof shows that the entries
made in the ACRs of the petitioner have been correctly extracted in
the counter affidavit. The petitioner also appears to have
acknowledged communication thereof on a separate sheet all these
years.
7. We may note that in relation to the entries for the years
2003 and 2004, the petitioner has disputed his signatures in the
service book. However, he does not dispute his signatures in relation
to the other entries, and in particular the entries for the years 1999 to
2002. Though it appears from the service record that the signatures
attributed to the petitioner for the years 2003 and 2004 are different
from those appended in respect of the other years, a perusal of the
writ petition shows that the signatures of the petitioner in the
supporting affidavit is entirely different from any of those to be found
in the service record. It, therefore, appears that the petitioner does
not consistently sign in the same fashion. In any event, the petitioner
did not disclose in the writ petition the adverse entries to be found in
his service record for the period from the year 1999 to 2002 which, as
per the record, had been communicated to him.
8. The notice to show cause issued to the petitioner and the
impugned order shows that the respondents have taken into
consideration his continuous service record while passing the
impugned order. Rule 26 empowers the Commandant to retire such
enrolled persons of the force whose retention is found to be
unsuitable in the force. Admittedly, the petitioner has been given due
notice to show cause in this case and he had responded to the same.
The respondents have considered the petitioners response and on the
basis of the petitioner's continuous service record, passed the
impugned order.
9. Looking to the abovesaid service record, it cannot be said
that there was no germane or relevant material available with the
respondent for passing the impugned order dated 27th May, 2007. It
is not for us to substitute the discretion exercised by the competent
authority in these proceedings, by our own. Neither are we sitting in
appeal against the impugned orders. No violation of statutory
provisions or principles of natural justice is pointed out. We find no
infirmity in the action of the respondents.
10. We also find that the petitioner is receiving his service
pension and the impugned order does not impact his right to receive
his pension for the service rendered by him. Accordingly, we dismiss
the writ petition leaving the parties to bear their respective costs.
GITA MITTAL, J.
VIPIN SANGHI, J.
FEBRUARY 25, 2010
rsk
