Delhi High Court
Ashok Vishwakarma vs Union Of India & Ors. on 29 September, 2020
$~VC-4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 29th September, 2020
+ W.P. (C) 7192/2020
ASHOK VISHWAKARMA .....Petitioner
Through: Mr. Kushal Choudhary, Ms. Neela
Gokhale, Mr. Harshal Gupta & Ms.
Shruti Dixit, Advocates
versus
UNION OF INDIA & ORS. .....Respondents
Through: Ms. Anju Gupta, Advocate along
with Deputy Commandant Vinod
Kumar, Law Officer, BSF.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
JUSTICE ASHA MENON
C.M. Appln. No.24314/2020 (Exemption from filing certified copy of
documents & orders, documents and annexures)
1. Allowed, subject to just exceptions and as per extant rules.
2. The application is disposed of.
W.P. (C) 7192/2020
3. The petitioner has filed the instant petition against the order dated
6th March, 2019 passed by the office of the Commandant, 38 Bn BSF,
Roopnagar, Coochbehar, West Bengal, by virtue of which, the petitioner
was retired from service w.e.f. the date of the order on the grounds of
unsuitability under the provision of Rule 26 of the Border Security Force
Rules, 1969 (BSF Rules, 1969) without pensionary benefits for having
allegedly entered into plural marriages.
4. The facts as set out in the petition are that the petitioner had
enrolled in the Border Security Force (BSF) on 29th June, 2010. His
marriage was solemnized with one Ms. Rachana Vishwakarma on 25th
April, 2012 as per Hindu rituals. A daughter was born to them in 2013.
5. The trouble started for the petitioner when a letter dated 24th
August, 2018 was received from the Additional Family Judge/ADJ Fast
Track Court No.2, Azamgarh directing the Director General (DG), BSF
to recover Rs.7500/- per month w.e.f. 12th April, 2013 from the petitioner
towards maintenance payable to Ms.Rachna Vishwakarma. When the
office perused the service record of the petitioner, it was found that one
Mrs. Bulbul was named as his wife in the nomination form. Later on 15 th
January, 2016, one Smt. Neha Vishwakarma addressed a letter to the
Prabandhak Adhikari, Seema Suraksha Bal, 140 Bn BSF, HQ, South
Bengal in which she claimed to have entered into a marriage with the
petitioner on 10th June, 2013 and that a child had been born to them and
alleging that the petitioner has not been taking care of them for over one
year. She requested for a direction to be issued to the petitioner for grant
of maintenance of Rs.15,000/- per month for her survival and survival of
the child. Since the petitioner was at that time serving under the 82 Bn of
the BSF, this letter was transferred to the Commandant, 82 Bn BSF for
necessary action and the office of the Commandant issued a letter dated
6th February, 2016 to the petitioner seeking his comments on this
complaint. Subsequently, Smt. Neha Rajak filed a petition under Section
23(2) of the Protection of Women from Domestic Violence Act, 2005 on
which the court of the Judicial Magistrate, 6th Court, Alipore directed the
payment of maintenance to her to the tune of Rs.13,000/- per month to be
deducted from the salary of the petitioner.
6. When these letters were received, a summary of the case was
forwarded to Ftr HQ BSF, Guwahati on 23rd September, 2018. On the
basis of the claims of the two ladies and the court orders and due to the
discrepancy in the service record, a Court of Inquiry (COI) was
conducted by the 38 Bn BSF vide O/No.Estt/COI/Payment-allowances/
38Bn/18/15881-85 dated 7th October, 2018 against the petitioner on the
charge of having contracted plural marriages. The COI concluded that the
petitioner had contracted plural marriages and recommended
administrative action to be taken. On the basis of the findings of the COI,
the Office of Commandant, 38 Bn BSF, Roopnagar, Coochbehar (WB)
issued a Show Cause Notice to the petitioner which he replied and finding
the reply unsatisfactory it was directed by the impugned order dated 6th
March, 2019 that the petitioner‟s name be struck off from the Force and
he be retired from service without any pensionary benefits.
7. The learned counsel for the petitioner Mr.Kushal Choudhary
vehemently argued that the action taken against the petitioner was against
all provisions of law and principles of natural justice. It was submitted
that only the Security Force Court (SFC) could impose a punishment of
dismissal from service as provided under Section 48 of the Border
Security Force Act, 1968 (BSF Act) as it was a major punishment. Only
other punishments could be imposed without SFC under Section 52 of the
BSF Act i.e. minor punishments provided under Section 53 and read with
Section 54 of the BSF Act. Under Section 55 of the BSF Act, the DIG
could also impose punishments but they were of a minor kind. It was
further argued that plural marriage was not provided for anywhere in the
Act or the Rules and therefore, the action taken against the petitioner was
erroneous. It was also submitted that since there was nothing on record to
show that the petitioner was not discharging his duties effectively, no
order retiring him from service without pensionary benefits could be
justified. Learned counsel also argued that even in the Court of Inquiry,
no proof of plural marriages had been produced as neither lady produced
evidence of their marriage. Thus on the basis of very perfunctory
proceedings, the petitioner had been wrongly removed from service.
8. Though the learned counsel for the respondents, Ms. Anju Gupta,
who appeared on advance notice, sought some time to file a response,
Deputy Commandant Vinod Kumar, Law Officer, BSF on our query
regarding the procedure, pointed out that this was a case of „retirement‟
and not „dismissal from service‟ and therefore the Commandant was fully
empowered to issue an order of retirement on grounds of unsuitability.
When queried about the power of the Commandant to do so, Sh. Vinod
Kumar pointed to Rule 177 of the BSF Rules read with Section 11 (2) of
the BSF Act and further to Rule 21 of the Central Civil Services
(Conduct) Rules, 1964, to submit that contracting plural marriages was to
be treated as a „misconduct‟ for which the officer could be removed from
service.
9. The argument of the learned counsel for the petitioner that the
dismissal from service could only be after a trial by a SFC, may have
been valid if the order was one of „dismissal‟ by a Commandant. It is
completely misplaced in the present case as the order is one of
„retirement‟ on the grounds of unsuitability in terms of Rule 26 of the
BSF Rules. The said Rule reads as under:-
"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 when he considers 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."
10. All that is required under this Rule is (a) the satisfaction of the
Commandant that the person is unsuitable to be retained in the Force and
(b) that a Show Cause Notice is issued to the enrolled person to give him
an opportunity to explain. In the present instance, there are two court
orders directing payment of maintenance to two different ladies in their
capacity as "wife" of the petitioner. The petitioner before the Court of
Inquiry has himself admitted to contracting these two marriages. It is a
specious plea taken by the learned counsel to explain the admission made
by the petitioner, that it was under duress that he had made the admission,
as in a Court of Inquiry he had no opportunity to state the correct facts. In
fact, the record of the statement shows that the petitioner had gone to the
extent of giving his assessment of the character of both the ladies, which
we refrain from reproducing out of deference to the dignity of those
ladies. The Court of Inquiry also recorded their testimonies. It is on the
basis of all this material that the Commandant had recorded his
satisfaction that during the subsistence of the first marriage, the petitioner
had entered into a second marriage in violation of Rule 21(1)(2) of the
CCS (Conduct) Rules, and recorded the unsuitability of the continuation
of the petitioner in the service of the BSF. That the Commandant was
empowered to do so is clear from the provisions of Section 11(2) of the
BSF Act read with Rule 177 of the BSF Rules.
11. We do not find any force in the contention of the learned counsel
for the petitioner that proper procedure has not been followed in
removing the petitioner from service or that the principles of natural
justice have been violated. Furthermore, had there been any shortfall in
the strict adherence to the procedure, this is certainly not a case in which
this Court would exercise its jurisdiction under Article 226 of the
Constitution of India in favour of such a petitioner.
12. At this stage, the learned counsel for the petitioner seeks an
opportunity to file a statutory petition under Rule 28A of the BSF Rules.
13. Deputy Commandant Vinod Kumar on our query states that the
period of limitation prescribed for filing a statutory petition is three
months from the date of termination and if the petitioner was to file an
application explaining the delay, the statutory petition would be
considered on merits.
14. Granting this liberty to the petitioner, the petition is dismissed.
ASHA MENON
(JUDGE)
RAJIV SAHAI ENDLAW
(JUDGE)
SEPTEMBER 29, 2020
ck/s
