Delhi High Court
Lal Chand vs Uoi & Ors. on 8 July, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 8th July, 2011
+ W.P.(C) 5233/1997
LAL CHAND ..... Petitioner
Through: Mr.H.S.Dahiya, Advocate.
versus
UOI & ORS. ..... Respondents
Through: Mr.Bhupinder Sharma,
Dy.Commandnat, BSF
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. Petitioner was enrolled as a Constable (Driver) with
BSF on 15.6.1990 and within a short span of less than 7 years
earned 4 penalties, all of which were connected with petitioner
being found to be intoxicated and under influence of alcohol;
either absenting from duty or doing another act which was an
offence. On all 3 occasions the petitioner was awarded
rigorous imprisonment in force custody for periods ranging
between 14 days to 28 days.
2. Being vested with a power under Rule 26 of the BSF
Rules, which empower the Commandant to compulsorily retire
a force personnel who is found to be not suitable or whose
continuation in service is opined to be unwarranted; after
serving show-cause notice upon the petitioner requires him to
respond as to why power be not exercised under Rule 26 and
listing in the show-cause notice dated 6.3.1997, the grounds
on which proposed action was contemplated; needless to state
being a reference to the 3 past penalties earned by the
petitioner, vide impugned order dated 2.5.1997 the petitioner
was compulsorily retired from service.
3. It may be noted at the outset that in the order
dated 2.5.1997 it has been noted that after the show-cause
notice dated 6.3.1997 was issued, once again the petitioner
was found intoxicated and since he was quarreling with the
civilians in Barmer town under influence of alcohol he had to
be apprehended by the local police.
4. At the hearing, learned counsel for the petitioner
states that the final action taken under cover of the order
dated 2.5.1997 has taken into account an incident dated
30.4.1997, which did not form subject matter of the show-
cause notice. Second contention urged is that for the past
misdemeanours the petitioner suffered rigorous imprisonment
in force custody and thus said misdeameanour could not be
the foundation of the proposed action.
5. Both pleas are meritless.
6. As regards the first it may be noted that the order
dated 2.5.1997 rests itself on the show-cause notice.
Reference to the continuing wrong committed by the petitioner
is to bring home the point that the petitioner seems to be an
incorrigible person.
7. It is not a case where the final order is premised on
a reason other than the proposed.
8. As regards the second plea, suffice would it be to
state that penalizing a person for committing a wrong is an
issue entirely different than considering whether a person who
repeatedly indulges in wrong-doing should or should not be
retained in service. We clarify, the first relates to the domain
of a criminal law and the second relates to the domain of civil
law.
9. We note that the power to compulsorily retire
Border Security Force personnel in exercise of the power
vested under Rule 26 of the BSF Rules has been upheld by a
Division Bench of this Court in the decision dated 27.10.1997
deciding the 3 writ petitions, lead matter being CW
No.4822/1995 'Ex.HC Satbir Singh vs. UOI & Ors.'.
10. We note that in all the 3 writ petitions decided by
the Division Bench, exercising power under Rule 26 was found
justified where 2 of the 3 writ petitioners were found to have
been penalized 4 times in the past and the 3rd petitioner 3
times; the penalties being earned between 5 to 7 years of
service rendered.
11. Accordingly, finding no merit in the petition we
dismiss the same but refrain from imposing any costs.
PRADEEP NANDRAJOG, J.
SUNIL GAUR, J.
JULY 08, 2011
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