Delhi High Court
Jadhav Arjun vs Dg, Bsf, & Anr. on 24 July, 2020
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 24th July, 2020
+ W.P. (C) 4532/2020
JADHAV ARJUN ..... Petitioner
Through: Mr. Manoj Kumar and Mr. Ajay
Kumar Bhargava, Advocates
versus
DG, BORDER SECURITY FORCE & ORS. ..... Respondents
Through: Mr. Ruchir Mishra, Advocate
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
ASHA MENON, J.
C.M. Appln.16351/2020 (Exemption)
1. Allowed, subject to just exceptions and as per the extant rules.
2. The application is disposed of.
W.P. (C) 4532/2020
3. This petition has been filed under Article 226 of the Constitution of
India by the petitioner, who had joined the Border Security Force (BSF)
on 3rd October, 1992, and served in it till he was dismissed from service
on 31st May, 2018, with the following prayers: -
"a) Issue a writ of Mandamus for Re-installation in
service on the same Rank i.e. HC/GD of the
Petitioners as well as deployments to the same location
and unit, the period of absence shall be regularized
and he shall be paid fully pay and allowances.
b) Issue a writ of Mandamus or any other writ/order or
direction in the nature of Mandamus
directing the Respondents I & 2 to provide the all the
benefits from the date of unlawful Dismissal, and the
court of law has power to put a cost on the that
Commandant for instant
relief to the petitioner for impugn dismissal order.
c) Issue a writ of Mandamus or any other writ/ order
or direction in the nature of Mandamus
quashing the impugned dismissal decision of the
Competent Authority dated 31.05.2018 and Resulting
impugned dismissal order in respect of the Petitioner
being arbitrary,
discriminatory against Article 14, Article 21 & Article
311 of the constitution.
d) Grant any other order or direction which this
Hon'ble court may deem fit to pass in the
present matter to meet the ends of justice."
4. The brief facts, as are relevant for the disposal of the present
petition, are that the petitioner was serving as a Head Constable/GD in
the 29th Battalion, BSF at the International Border and was asked to
perform duty at the Border Outpost (OP). On 15th January, 2018, the
Offg. Coy. Comdr. of the 'F' Coy Inspector Ashiq Ali directed him to
attend to the First HIT, i.e., 18:30 PM to 00:30 AM., but the petitioner
refused to attend the same claiming that he had been on continuous duty
from 6:30 AM to 12:30 PM that day and secondly, his health card
reflected that his medical category exempted him from staying out in the
cold night of the winter. According to the petitioner, he also told the Offg.
Coy. Comdr. that he had severe pain over his body and was having fever
and had just taken medicine from the First Aid Box and due to giddiness,
he was not able to go for the duty and, therefore, to allow him the second
or the third shift. According to the petitioner, while disregarding his
request, the Offg. Coy. Comdr. made a representation against the
petitioner on 15th January, 2018 and sent him to the Unit Headquarter for
disciplinary action.
5. The petitioner claims to have been under anxiety on account of his
wife's ill health as he had received a call from his elder son on 17th
January, 2018, at about 21.30 p.m. that his wife's condition had become
worse and that she had been admitted at the Samarth Navjeevan hospital
till 28th January, 2018. According to the petitioner, he had applied for 40
days earned leave in the month of December, 2017 to proceed on leave
from 25th January, 2018 and after the leave was sanctioned, had obtained
the Railway Warrant for the journey.
6. According to the petitioner, in view of the information received
about the hospitalization of his wife, he sought permission from the Unit
officers for being relieved early but not only was he not allowed to leave
but his sanctioned leave was also cancelled. Thus, losing patience, he
decided to escape from the Unit on 23rd January, 2018 at midnight, i.e.,
02:20 AM, and he purchased a new Railway ticket for emergency journey
dated 24th January, 2018. On 25th January, 2018, 29th Battalion, BSF
lodged an FIR against him at the Police Station Mamdot, District
Ferozepur, Punjab for deserting the Unit.
7. The petitioner claims that after his wife was discharged on 28th
January, 2018, he posted an application on 30th January, 2018 to DG, BSF
and also informed the Superintendent of Police, District Latur on 30th
January, 2018 about all the facts. Thereafter, he returned to the Unit on
23rd February, 2018 to join duty after completing AWL (Absent Without
Leave), along with his unwell wife, as recorded in the General Diary
(GD) of the Unit, 29th Bn., BSF.
8. Mr. Manoj Kumar, learned counsel for the petitioner, submitted
that the Court of Inquiry (COI) had been constituted for three charges as
mentioned in Annexure P-1 at page-39, which are reproduced as under: -
FIRST CHARGE MALINGERING OR FEIGNS
BSF ACT
Sec 24(b) In that he,
while at BOP on 15/01/2018,
denied to perform HIT duty under
the pretext of LMC and argued that
he is exempted from such kind of
duty. Whereas, as per his health
card, he was not exempted to do so.
SECOND CHARGE ABSENTING HIMSELF WITHOUT
BSF ACT LEAVE
Sec-19 (a)
In that he,
while at BN HQ Mamdot, 29 Bn
BSF, made himself absent without
leave at about 0700 hrs on
25/01/2018. Thereafter, he
voluntarily reported to Bn HQ
Mamdot at 1830 hrs on
23/12/2018.
Total Period of ansence = 30 days
THIRD CHARGE MAKES A FALSE ACCUSATION
BSF ACT AGAINST ANY PERSON
Sec-34 (a) SUBJECT TO THIS ACT,
KNOWING OR HAVING REASON
TO BELIEVE SUCH
ACCUSATION TO BE FALSE.
In that he,
on 30/01/2018, addressed an
application to the DG BSF levelling
therein allegations of harassment
by Coy Comdr 'F' Coy of 29 Bn
BSF. The allegations as levelled
were investigated into by a duly
constituted Departmental COI and
found to be false and fabricated.
He misused the channel of
reporting in Force for self gain and
also tried to malign the image of 29
Bn BSF.
9. He submitted that the record of duties placed at Page 139 of the
petition established the fact that the petitioner had in fact performed his
assigned duties in the morning of 15th January, 2018 and his refusal to
perform additional duties in the evening/night could not be viewed as
disobedience since the medical category, as reflected in the
medical/health card (Annexure P-2 to the petition) and the medical
guidelines (placed at Page 141 of the petition), exempted him from doing
such night duty in the cold and, therefore, the first charge was not
substantiated.
10. With regard to the second charge, the learned counsel submitted
that the medical papers brought on the record as Annexure P-6 would
establish the fact that the wife of the petitioner was hospitalized between
18th January, 2001 and 28th January, 2018. Further, the very fact that the
Railway tickets (Annexure P-3) showed that it was at zero cost, supported
his claim that the leave had been duly sanctioned. He also submitted that
the petitioner had joined after 29 days of absence and it was absence of
30 days that attracted penal consequences. Therefore, the dismissal was
against the Rules and the Guidelines placed on the record as Annexure
P-15.
11. The third charge was that he had given a false complaint against
the Company Commander 'F' Coy. of 29th Battalion, BSF, but according
to learned counsel, the denial of permission to leave when the petitioner's
wife was unwell and the duties unfairly assigned to him had compelled
the petitioner to file the complaint against Mr. Aashiq Ali. Moreover, the
entire departmental COI and the Summary Security Force Court (SSFC)
were not properly conducted as the defence of the petitioner was not
properly considered. Lastly, it was also urged that in other cases
involving similar facts, lesser punishments had been awarded whereas the
petitioner was given the extreme punishment of demotion and dismissal
and had been discriminated against.
12. Learned counsel for the respondents, Mr. Ruchir Mishra appearing
on advance notice, however submitted that the action taken against the
petitioner was fully justified as he did not belong to a medical category
that suggested a disability to perform night duty and he had remained
away without permission for 30 days and moreover, he had made false
allegations against his superiors. He submitted that the charges had been
duly proved against the petitioner and he had been found guilty under
three Sections of the BSF Act, 1968, i.e., Section 19(a), punishable with
imprisonment for three years or a lesser punishment; Section 24(b),
punishable with imprisonment of upto seven years or a lesser punishment;
and Section 34(a), punishable with imprisonment for three years or a
lesser punishment, and since no term of imprisonment had been imposed
that there was no ground to interfere with the punishment of reduction in
rank and dismissal, as awarded.
13. We have heard learned counsel for the parties and have perused the
record. It may be noticed at the outset that, as per the medical/health card
of the petitioner, there is no observation to the effect that the petitioner is
unable to or should not be put on night duties particularly, in winter
months. The observation in Annexure P-2 is to the following effect:-
"Obesity with HTN
Adv- Reduce wt., Regular physical exercise, low salt diet,
low fat diet, Regular BP monitoring."
Therefore, the claim of the petitioner that he was justified in
refusing to perform duty at the Border Outpost from 1830 hours to 0030
hours, is not tenable. The medical guidelines cannot come to the rescue of
the petitioner as the advice given was to take regular exercise and reduce
weight. Moreover, the mere fact that the petitioner had performed his
duties in the morning shift, cannot be a reason to exempt him from further
duty if the need arose. That is to be determined by the Unit/Commanding
Officers. Admittedly, the petitioner had refused to perform his duties,
even as per the case of the petitioner and when his explanation has been
found wanting, the SSFC rightly held that the first charge was duly
proved against him. However, it may be noted that while disposing of the
Statutory Petition, it has been noticed that "while countersigning the
SSFC trial proceedings, DIG SHQ BSF Ferozepur set aside the finding on
first charge and countersigned the findings on 2nd & 3rd charges and the
sentence on 17.10.2018".
14. It is the very version of the petitioner that he had "escaped" from
his Unit on 23rd January, 2018 at midnight, i.e., 02:20 AM, and had
purchased a Railway ticket for emergency journey on 24th January, 2018.
It is his own case that he returned to the post on 23rd February, 2018 and
as per the entry made in the Register, he entered his return at 1830 hours.
It may be noticed that he has dated his absence from 25th January, 2018,
which was the date of registration of the FIR against him for deserting the
Unit. It is thus clear that the petitioner joined the Unit after 30 days. Thus,
the second charge was also rightly found proved against him. It may be
also significant to note that though his wife was discharged on 28th
January, 2018, yet the petitioner did not choose to return immediately to
the Unit and took his own time doing so. That action of his was clearly at
his own peril.
15. As to the third charge, it was conclusively held that the accusations
made against Mr.Aashiq Ali were false and the petitioner was found
guilty under this charge too. In order to cover up his own misdemeanors,
the petitioner levelled allegations of bias against his Commanding Officer
knowing that these were false and such action would be detrimental to the
overall discipline in the Unit. Nothing has been pointed out for us to
conclude otherwise.
16. As regards the claim that he was not given adequate opportunity
during the SSFC, the records do not bear out this claim. The order
disposing of the Statutory Petition, filed at Page 217 of the petition,
records that the petitioner had been given the opportunity to cross-
examine all the witnesses examined and allowed to make his statement,
which he did by filing an unsworn one and despite opportunity, did not
examine any witness in his defence. While awarding the sentence, his
previous convictions, character and rewards were duly considered. While
rejecting the Statutory Petition, the DG, BSF has once again considered
the evidence that has come against the petitioner in detail.
17. With regard to the quantum of punishment, we do not find any
reason to interfere with the same. As noticed hereinbefore, all the
offences under Section 19(a), Section 24(b) and Section 34(a) of the BSF
Act, with which the petitioner was charged, all entail imprisonment for
periods ranging from a maximum of three years to a maximum of seven
years or a lesser punishment. Section 48 of the BSF Act provides for
punishments that may be inflicted by Security Force Courts according to
scale with each of the punishments prescribed being inferior in degree to
every punishment preceding it and dismissal from service is listed below
imprisonment for a period exceeding three months. Considering that the
petitioner has been found guilty of three offences punishable by varying
periods of imprisonment, the order of reduction in rank and dismissal
from service do not appear to be disproportionate or unduly harsh.
18. Another fact to be noticed is that there is no explanation as to the
reason for the delay in approaching this Court against the order of
dismissal dated 31st May 2018. Though the learned counsel claimed that
the petitioner had been repeatedly making representations, it is borne
from the record that the Statutory Petition was rejected on 2nd April, 2019
and the petitioner had also been duly informed on 22nd April, 2019 that
his representations, including to the Chief Minister of Maharashtra, for
reinstatement, dated 24th June, 2018 and 26th February, 2018, had been
rejected vide Annexure P-18 and, therefore, the contention that he was
making other efforts for reconsideration of his dismissal, are not
convincing.
19. In these circumstances, this Court does not find that the order of
dismissal was excessive or disproportionate.
20. There is no merit in the present petition, which is accordingly
dismissed.
ASHA MENON, J.
RAJIV SAHAI ENDLAW, J.
JULY 24, 2020
s/ak
