Delhi High Court
Arvind Ghildiyal vs Union Of India And Ors. on 3 September, 2019
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 9673/2018
ARVIND GHILDIYAL ..... Petitioner
Through: Mr. Ankur Chhibber with Mr. Bhanu
Gupta, Advocates.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mrs. Bharathi Raju, CGSC for R1 to
R3.
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE TALWANT SINGH
ORDER
% 03.09.2019
Dr. S. Muralidhar, J.:
1. This petition questions the validity of the impugned order dated 11th July,
2016 passed by the Deputy Inspector General (Confd.) on behalf of the DG,
Border Security Force („BSF‟) conveying the DG‟s displeasure to the
Petitioner, who is a Commandant with the BSF, and the subsequent order
dated 15th November, 2016 rejecting his representation against it.
2. For the purposes of the present petition, it requires to be noticed that there
was an incident involving the Petitioner while he was posted at the Sector
Headquarters, Dubri in Assam as Commandant in April 2015 pursuant to
which an FIR was registered by the Petitioner‟s wife on 13th April, 2015 at
Gauripur Police Station. A Staff Court of Inquiry („SCOI‟) was initiated on
the order of the IG against whom the wife of the Petitioner had registered
the above FIR.
3. On 10th November, 2015, a Show Cause Notice („SCN‟) was issued to the
Petitioner requiring him to show cause as to why the DG‟s displeasure
should not be conveyed to him. The Petitioner then wrote to the
Respondents on 18th January, 2016 seeking a copy of the report of the SCOI,
which was supplied to him. However, according to the Petitioner, what was
not supplied to him were the findings and opinion of the SCOI and the
recommendation of the competent authority on such findings. The Petitioner
nonetheless replied to the SCN on 29th January, 2016.
4. The Petitioner‟s reply dated 29th January, 2016 has been perused by this
Court. It appears that the Petitioner did not specifically ask for the above
documents while filing that reply. Nevertheless, Mr. Ankur Chibber, learned
counsel for the Petitioner, refers to the judgment of this Court in Major R.
K. Sareen v. Union of India ILR (2011) 2 Del 684 to urge that it was
mandatory for the Respondents to supply not only the report of the SCOI but
also the findings and directions along with the recommendations of the
competent authority on such findings in order to enable the Petitioner to
make an effective representation in terms of Rule 173 (8) of the BSF Rules
against the proposed punishment of the conveying of the DG‟s displeasure.
5. In the counter-affidavit filed on behalf of the Respondents, it is asserted
that the requirements of Rule 173 (8) of the BSF Rules were complied with
in letter and spirit and that the Petitioner did have a copy of the SCOI
proceedings.
6. In Major R. K. Sareen v. Union of India (supra) this Court explained the
requirement of the law as under:
"35. In the instant case, in view of the fact that the award of
punishment is an administrative action it was incumbent
upon the GOC to observe the rules of natural justice while
awarding said punishment to the appellant. A bare reading of
the show cause notice dated 28.04.1995 and the order dated
25.08.1995, extracted in foregoing paras, shows that the
findings, directions and recommendation of the Court of Inquiry
weighed heavily with the GOC in awarding punishment of
censure to the appellant. In such circumstances, the rules of
natural justice require that the GOC ought to have supplied the
findings, directions and recommendations of the Court of
Inquiry to the appellant along with the show cause notice dated
28.04.1995. The non-supply of the said documents to the
appellant implies that the appellant has not been granted a
reasonable opportunity of being heard and has resulted in
violation of rules of natural justice.
36. Before proceeding further, let us analyse Rule 184 of Army
Rules relied upon by the Single Judge to justify non- supply of
the findings, recommendations and directions of the Court of
Inquiry to the appellant. Rule 184 of the Army Rules reads as
under:-
"184. Right of certain persons to copies of
statements and documents -
(1) Any person subject to the Act who is tried by a
court-martial shall be entitled to copies of such
statements and documents contained in the
proceedings of a court of inquiry, as are relevant to
his prosecution or defence at his trial.
(2) Any person subject to the Act whose character or
military reputation is affected by the evidence
before a court of inquiry shall be entitled to copies
of such statements and documents as have a bearing
on his character or military reputation as
aforesaid unless the Chief of Army Staff for reasons
recorded by him in writing, orders otherwise."
(emphasis supplied)
37. As noted in foregoing paras, clause (1) of Rule 184 was read
by the Single Judge to mean that a person is not entitled to
receive the findings/recommendations of the Court of Inquiry.
In this regards, suffice would it be to state that the learned
Single Judge failed to note that Rule 184 is applicable in cases
where a person is tried by the Court Martial, which was not the
position in the instant case.
38. The sum and substance of the above discussion is that the
order dated 25.08.1995 passed by the GOC awarding
punishment of censure by way of severe displeasure to the
appellant is liable to be quashed as the same is violative of rules
of natural justice. Ordered accordingly."
7. The Court finds that in the present case also the failure by the
Respondents to supply to the Petitioner along with the SCN the opinion and
findings of the SCOI along with the directions and recommendations of the
competent authority has vitiated the impugned order dated 11th July, 2016
conveying the DG‟s displeasure.
8. Accordingly, the Court hereby quashes the impugned order dated 11th
July, 2016 conveying the DG‟s displeasure and the subsequent order dated
15th November, 2016 rejecting the Petitioner‟s representation.
9. As directed in Major R. K. Sareen v. Union of India (supra), the Court
now directs the Respondents to supply the opinion and findings of the SCOI
along with the recommendations and directions of the competent authority
including the evidence recorded by the SCOI to the Petitioner within a
period of 4 weeks from today. The Petitioner is permitted to file a response
to the said SCN within a further period of 4 weeks thereafter. A fresh order
would be thereafter passed in accordance with law within a further period of
four weeks and communicated to the Petitioner within 2 weeks thereafter. If
the said order is adverse to the Petitioner, then it will be open to the
Petitioner to seek appropriate remedies as are available to him in accordance
with law.
10. The petition is disposed of in the above terms with no order as to costs.
11. A copy of the order be given „dasti‟ under the signatures of the Court
Master.
S. MURALIDHAR, J.
TALWANT SINGH, J.
SEPTEMBER 3, 2019
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