Delhi High Court
Guddu Kumar vs Union Of India & Ors. on 1 December, 2021
$~42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 1st December, 2021
+ W.P.(C) 13572/2021
GUDDU KUMAR ..... Petitioner
Through Ms. Saahila Lamba, Advocate
versus
UNION OF INDIA &ORS. ..... Respondents
Through Mr. V.N. Goyal, Advocate
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
1. This petition has been filed by the petitioner challenging the
order dated 29.12.2020 passed by the Commandant 148 BN, Border
Security Force (hereinafter referred to as 'BSF'), directing the
dismissal of the petitioner from service; the order dated 13.04.2021
passed by the respondent no. 3, dismissing the representation of the
petitioner against the above order of removal from service; and the
order dated 09.06.2021 passed by the respondent no. 2 wherein the
representation of the petitioner for setting aside the impugned order
dated 29.12.2021 was again dismissed on the ground that under
Section 117 of the Border Security Force Act, 1968 (hereinafter
referred to as the 'Act') read with Rule 167(2) of the Border Security
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Signed By:SHALOO BATRA
Location:
Signing Date:03.12.2021
Force Rules, 1969 (hereinafter referred to as the 'Rules'), a person
aggrieved by any order passed by the Summary Security Force Court
(hereinafter referred to as 'SSFC') can present only one petition to any
of the officers mentioned in Section 117 of the Act and since the
petitioner had already availed said opportunity by submitting a
statutory petition to the respondent no. 3 which was duly considered,
there is no provision to entertain another representation in the same
regard.
2. It is the case of the petitioner that a hearing under Rules
45/45A/45B of the Rules was conducted against the petitioner on
18.12.2021 on six charges viz. (i) on 16.12.2020 at about 1845 hours
while on duty the petitioner was found in a state of intoxication; (ii) on
16.12.2020 at about 1845 hours while on duty the petitioner
misbehaved and abused Insp/Offg Coy Commander Sunil Yadav; (iii)
on 16.12.2020 at about 1845 hours while on duty the petitioner used
threatening language against Const/GD P M Rao; (iv) on 16.12.2020
at about 1845 hours while on duty the petitioner was found in
unauthorized possession of a pouch of 180 ml Officer Choice
whiskey; (v) on 16.12.2020 at about 1845 hours while on duty the
petitioner was found in possession of mobile phone which is against
the instructions and (vi) on 16.12.2020 at about 2130 hours while on
duty the petitioner refused to sit in the ambulance for proceeding for
his medical test despite order by SI Ganpat Lal to do so. The charges
so framed were corroborated by six witnesses and vide order dated
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Signed By:SHALOO BATRA
Location:
Signing Date:03.12.2021
18.12.2020, a Record of Evidence was directed to be prepared against
the petitioner.
3. On 29.12.2020, after the preparation of the Record of Evidence,
the SSFC was conducted against the petitioner wherein he was found
guilty on all six of the aforementioned charges. The petitioner is
alleged to have admitted to being guilty of the six charges hence, the
order of dismissal from service was passed.
4. The learned counsel for the petitioner submits that the petitioner
was forced to enter plea of guilty on the six charges against him and
on the basis of this forced plea of guilt entered by the petitioner, the
SSFC held the petitioner to be guilty of the charges framed against
him without recording any evidence whatsoever and awarded the
sentence of dismissal from service to the petitioner. She further
submits that the petitioner did put on record his version of the events
by admitting to consuming liquor on 16.12.2020 as he claimed to be
under duress due to his father's hospitalization and was not aware of
what happened. The learned counsel for the petitioner contends that
this admission is only with respect to the first charge framed against
the petitioner, that is, intoxication, and not qua the remaining five
charges. Placing reliance on the judgment dated 11.07.2011 of this
court in Ashok Kumar v. DG. BSF & Ors. (W.P. (C) 2145/1998) she
submits that the petitioner was suffering from mental tension and
therefore, deserved leniency. She submits that the punishment of
dismissal from service is therefore, disproportionate.
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Signed By:SHALOO BATRA
Location:
Signing Date:03.12.2021
5. We have considered the submissions made by the learned
counsel for the petitioner and find no merit in the same.
6. The charges found against the petitioner to be proved is that
while being deputed on duty on 16.12.2020, the petitioner was found
to be under the influence of alcohol and used threatening and
insubordinate language to his superior officers. The above charges
framed against the petitioner are extremely grave. The same clearly
reflect gross indiscipline on part of the petitioner. The petitioner is a
member of a disciplined force and was found to be indulging in these
activities while being on duty. Moreover, we find no merit in the
argument by the learned counsel of the petitioner that the admission of
guilt was forced as the petitioner has appended his signature on the
proceeding sheet. The proceeding sheet also records that the petitioner
was warned of the repercussion of such admission. The said
proceedings are dated 29.12.2020 and surely the petitioner understood
the same.
7. In Union of India & Ors. vs. Diler Singh, (2016) 13 SCC 71,
the Supreme Court has held that unless the punishment imposed by the
Disciplinary Authority or the Appellate Authority shocks the
conscience of the Court, there is no scope for interference. When a
member of the disciplined force deviates to such an extent from the
discipline, it is difficult to hold that punishment of dismissal is
disproportionate or shocking to the judicial conscience.
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Signed By:SHALOO BATRA
Location:
Signing Date:03.12.2021
8. In Union of India & Ors. vs. Lt. Col. Kuldeep, (2019) 10 SCC
449, the Supreme Court reiterated that though the Tribunal/Court is
competent and empowered to interfere with the punishment awarded
by the appropriate authority in any departmental action on the ground
of the same being excessive or disproportionate to the misconduct
proved against the delinquent officer, however, exercise of such power
is circumscribed and can be invoked only in exceptional and rare
cases, when the punishment awarded by the Disciplinary Authority
shocks the conscience of the Tribunal/Court or is so unreasonable that
no reasonable person could have taken such an action. The
Tribunal/Court cannot act as a court of appeal and substitute its own
view and findings by replacing the subjective satisfaction arrived at by
the competent authority in the backdrop of the evidence on record.
9. In the present case, as noted hereinabove, the charges against
the petitioner are of grave nature and we do not find the penalty
imposed on the petitioner to be disproportionate.
10. The observation of this court in Ashok Kumar (supra) cannot
be considered as having laid down as a rule that in every case where
an officer of Armed Force is found to be intoxicated on duty and
indulging in unruly behavior, he would deserve leniency.
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Signed By:SHALOO BATRA
Location:
Signing Date:03.12.2021
11. We, therefore, find no merit in the present petition. The same is
dismissed. There shall be no order as to cost.
NAVIN CHAWLA, J
MANMOHAN, J
DECEMBER 1, 2021/AB
Signature Not Verified
Signed By:SHALOO BATRA
Location:
Signing Date:03.12.2021
