Neutral Citation Number 2022/DHC/005265
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: November 17, 2022
Pronounced on: December 02, 2022
+ W.P.(C) 2768/2014
AJAY RAWAT ..... Petitioner
Through: Mr. Sudhanshu Tomar and Mr. D.
S. Chauhan, Advocates
Versus
UNION OF INDIA & ORS. .... Respondents
Through: Mr. Sushil Kumar Pandey, Senior
Panel Counsel with Mr. Kuldeep
Singh, Advocate
Mr. Paramveer Singh, AC (Law)
BSF
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MR. JUSTICE SAURABH BANERJEE
JUDGMENT
SAURABH BANERJEE, J.
1. As per petitioner, after joining the Border Security Force 1 on 19.07.1989 and completing his training, he was posted in different parts of the country from time to time, lastly at Border Out Post, Nandanpur, District Nadia, West Bengal2 in 2001 for discharging duties at the India-Bangladesh Border.3
1 Hereinafter referred as "BSF"
2
Hereinafter referred as "BOP"
3
Hereinafter referred as "IBB"
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2. On 18.01.2002 at 07:15 AM, while the petitioner was manning Gate no. 1, BOP along with a Lance Naik, who was detailing the particulars of the farmers crossing the said gate for daily routine work in the Register maintained there, his senior Head Constable responsible for opening/closing the said gate, left his post and ordered the petitioner to allow farmers to pass through for carrying out their routine work. As such, the petitioner claims to have allowed farmers to cross over the border and thenceafter closing the gate, locked it.
3. During that time, one Sub Inspector (G) on routine patrol duty, saw some suspicious movement on Gate no.1, BOP and after crossing it, returned from some distance to enquire about activities occurring there. On being confronted, the petitioner claims to have informed the said Sub Inspector (G) about the factual situation of his filling in for the Head Constable who permitted him to allow the farmers to cross the border but the said Sub Inspector (G) in turn told him about an order of the Commanding Officer whereby the petitioner was not allowed to handle the keys of Gate no.1, BOP. Though the petitioner claims to have apprised the said Sub Inspector (G) about being unaware of the same as he had returned from his annual leave after two months only a day before, i.e., on 17.01.2002, but the said Sub Inspector (G) snatched away the keys from him and instead made false allegations about the petitioner allowing cattle, being four buffalos, one cow and one calf to pass through Gate no.1, BOP to Bangladesh. Not only that, the petitioner was ordered to be disarmed and was also placed under suspension vide order dated 19.01.2002.
4. Thereafter, vide order dated 23.01.2002, BSF ordered that the
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Recording of Evidence4 against petitioner had to be completed on or before 03.02.2002 without withdrawing or cancelling his suspension order and after getting him under a legal custody of detention. The petitioner, after being charge-sheeted by BSF on 26.02.2002, was ordered to be tried by Summary Security Force Court5 for committing an offence under Section 40 of the Border Security Force Act, 19686. As per petitioner, the ROE proceedings which commenced on 01.02.2002 were in complete violation of the rules with the sole purpose of punishing and dismissing the petitioner from service. According to petitioner, the same was evident from the fact that after conducting the said proceedings, BSF, not only found him guilty, but vide order dated 01.03.2002 sentenced him 'to be dismissed from service'.
5. Being aggrieved, the petitioner filed a statutory appeal before the Deputy Inspector General, BSF, District Nadia, West Bengal on 05.03.2002 seeking to set aside the above order of dismissal dated 01.03.2002 and to be reinstated in the BSF. As per petitioner, as no response was forthcoming from the BSF, petitioner was forced to send a legal notice dated 24.07.2007, albeit, belatedly, after a gap of more than five years. BSF, vide response dated 11.08.2007, informed the petitioner about his appeal being devoid of merit was disposed of long back.
6. Thereafter, though the petitioner neither challenged the same nor made any representation, however, his wife made personal representations on 23.05.2011 and 24.05.2011 for and on behalf of him to Secretary,
4 Hereinafter referred as "ROE"
5
Hereinafter referred as "SSFC"
6
Hereinafter referred as "BSF Act"
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Ministry of Home Affairs and the BSF, once again, belatedly, after a further gap of almost five years. In response thereto, the Director General, BSF vide letter dated 02.09.2011 apprised the wife of petitioner that since the appeal of petitioner had already been considered and rejected, there was no provision for a second appeal.
7. It was finally on 25.03.2014, once again after a belated period of almost three years that the petitioner filed the present writ petition primarily inter-alia seeking cancellation/ withdrawal/ recall of the order of dismissal dated 01.03.2002 passed by SSFC and setting aside the order dated 02.09.2011 dismissing his appeal and his reinstatement in service along with all the consequential benefits with interest in his favor.
8. Learned counsel for the petitioner, relying upon A.K. Roy vs. Union of India7 to put forth his case, submitted that the order of dismissal dated 01.03.2002 is bad in facts and law as the petitioner was not provided 'next friend' during the course of the SSFC proceedings, thus there was no legal assistance in terms of the BSF Act.
9. Per contra, the respondents contended that though the petitioner has filed the present writ petition for setting aside the order of dismissal dated 01.03.2002, no objection regarding violation of procedural law during the SSFC proceedings have been raised therein. Even otherwise, there is no error or violation of law or violation of principles of natural justice and the dismissal of the statutory petition of the petitioner under Section 117 of the BSF Act, on 30.05.2002 it was duly communicated to him vide letter dated 07.06.2002, thus, the present writ petition is not maintainable as
7 (1982) 1 SCC 271
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there is a serious delay of twelve years in challenging the finding and order of dismissal dated 01.03.2002, for which there is no explanation.
10. The respondents also contended that the petitioner has withheld information qua his pleading guilty during the SSFC proceedings and further state that petitioner himself had declined to cross-examine the prosecution witness during ROE and did not apply to the authorities for engaging counsel during the SSFC proceedings but the BSF provided one Mr. Rajender Kumar to act as his next friend during the said SSFC proceedings.
11. Learned counsel for respondents, in furtherance of his case qua the stand of respondents submitted that they followed all the procedures, Section(s) and Rule(s) stipulated in the BSF Act before/while dismissing petitioner from service for violation of good order and discipline; that the BSF took into consideration that he was not authorized/ allowed to handle the keys of Gate no.1, IBB that he acted for his personal gains in connivance with the smugglers; that there was a gross delay of twelve years by petitioner in approaching this Court; and lastly there is/was no provision for a Second Appeal from the order of dismissal of SSFC proceedings.
12. Learned counsel for respondents thence relies upon Chairman cum Managing Director, Coal India Limited & Anr. Vs. Mukul Kumar Choudhuri & Ors.8 and Ex. Const/GD Rana Pratap Singh vs. Union of India & Ors.9, contended that the jurisdiction of a High Court under Article 226 of the Constitution of India is limited in re-evaluating the 8 (2009) 15 SCC 620 9 2011 SCC OnLine Del 3849
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evidence on record which is forming the basis of sustaining the finding and punishment of the Court Martial/Security Force Courts to an error of jurisdiction only when it is a case of total lack of evidence and it is not open to the High Court(s) to reappreciate evidence as it is not an appellate Court but, only acting under judicial review.
13. Based on the arguments addressed by learned counsel for both the parties, who have been heard at considerable length and on careful perusal of all the documents on record, we note that the issues for deliberation before us are qua the delay of petitioner approaching this Court and the scope of power of judicial review of this Court under Article 226 of The Constitution of India over the decision arrived at by the SSFC.
14. The facts of the present case reveal that undisputedly when the petitioner was patrolling Gate no.1, IBB the Sub-Inspector(G) found him with the keys of the said Gate no.1 and it was at the same time, though the crossover of cattle was not conclusive but the petitioner neither raised any voice or suspicion or denied the same nor was his case of only point of time, either before, during or after the SSFC that he was coerced into making submissions which were untrue, false or which never happened. Moreover, the petitioner has been unable to show or belie that he had himself not pleaded guilty during the SSFC proceedings. Though the petitioner had made some claims about his pleading 'not guilty' and not being given opportunity, however, the petitioner has failed to show/ give any plausible reasons which can lead to vitiating the SSFC proceedings. Also, the facts of this case further reveal that the SSFC proceedings were carried out in the presence of responsible officers and were concluded on
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the basis of reliable witnesses.
15. The records also reveal that undisputedly the appeal of the petitioner was dismissed as early as 30.05.2002 and the petitioner has filed the present writ petition after a lapse of twelve years therefrom. Yet again, the petitioner has failed to explain the lapse of highly belated period of almost twelve years in approaching this Court by way of the present petition. Though, there is no fixed time limit for initiation of a petition under Article 226 of Constitution of India, however, delay defeats justice and such writ petition(s) can only be maintainable, provided the reasons of delay are well explained as per the facts and circumstances of each case.
16. Alas, the present writ petition is not such a case as there was a lull from the side of the petitioner, not once but repeatedly. Coupled with his earlier conduct, it is improbable for anyone in the shoes of the petitioner to have laid low like a sleeping duck for such a lengthy period. It is unfathomable to think that the petitioner did not, could not and would not want to agitate his grievance at the earliest. It is highly tough, in fact, seemingly impractical for someone like the petitioner to be in a slumber when faced with an order of dismissal, and that too, according to him when there was no cogent reason therefor. Coming from the armed forces, the petitioner is expected to be and ought to have been more diligent in taking action more spontaneously within time. That he failed to do so, raises a serious doubt and suspicion over the belated issues sought to be lacerated after an unexplainable gap of twelve years. Had the petitioner been aggrieved, he would surely have approached this Court at the earliest, within no time and as expeditiously as possible, but that is
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certainly not the situation. In view of the aforesaid and seeing the conduct of the petitioner, it is extremely difficult for this Court to allow the petitioner to reopen and/ or to reagitate the issues de-novo. The petitioner cannot be allowed to open a can of dead worms after substantial lapse of time to let the stale smell escape.
17. De-hors the delay and without going into the merits of the issue regarding delay of petitioner approaching this Court, even if this Court wishes to extend the benefit of doubt in his favor and condone the delay in approaching this Court, regrettably this Court will not be able to help the petitioner on merits. As per settled law, it is not open for this Court to rake open, much less, even tinker with the SSFC proceedings in this case as the scope of judicial interference by a Court of law under Article 226 of The Constitution of India is extremely limited, in fact miniscule, under the circumstances involved in the present case. The High Court under Article 226 of The Constitution of India is not allowed to re-appreciate the evidence or act as a fact-finding authority. This Court has an extremely limited scope of judicial review and cannot go into the decision but only the decision-making process, especially if there is anything perverse therein. Whereas, in the present case, the petitioner himself pleaded guilty and accepted the final decision of the respondents.
18. We find able support in Chairman cum Managing Director, Coal India Limited (supra) wherein it has been held as under: -
18. It has been time and again said that it is not open to the High Court to examine the findings recorded by the Inquiry Officer as a Court of Appeal and reach its own conclusions and that power of judicial review is not directed against the decision but is confined to the decision making process. In a case such as the present one where
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the delinquent admitted the charges, no scope is left to differ with the conclusions arrived at by the Inquiry Officer about the proof of charges. In the absence of any procedural illegality or irregularity in conduct of the departmental enquiry, it has to be held that the charges against the delinquent stood proved and warranted no interference.
19. We also find able support in Bharat Coking Coal Limited and Ors. Vs. AMR Dev Prabha and Ors.10 wherein it has been held as under: -
28. The scope of judicial review in tenders has been explored in-depth in a catena of cases. It is settled that constitutional courts are concerned only with lawfulness of a decision, and not its soundness. Phrased differently, Courts ought not to sit in appeal over decisions of executive authorities or instrumentalities. Plausible decisions need not be overturned, and latitude ought to be granted to the State in exercise of executive power so that the constitutional separation of powers is not encroached upon. However, allegations of illegality, irrationality and procedural impropriety would be enough grounds for courts to assume jurisdiction and remedy such ills. This is especially true given our unique domestic circumstances, which have demonstrated the need for judicial intervention numerous times. Hence, it would only be the decision−making process which would be the subject of judicial enquiry, and not the end result (save as may be necessary to guide determination of the former).
20. We also find able support in State Bank of India and Ors. Vs. Ramesh Dinkar Punde11 wherein it has been held as under:-
9. It is impermissible for the High Court to re-appreciate the evidence which had been considered by the Inquiry Officer a Disciplinary Authority and the Appellate Authority. The finding of the High Court, on facts, runs to the teeth of the evidence on record. xxxx
12. From the facts collected and the report submitted by the Inquiry Officer, which has been accepted by the Disciplinary Authority and the Appellate Authority, active connivance of the respondent is eloquent enough to connect the respondent with the issue of TDRs and overdrafts in favour of Bidaye.
10
(2020) 16 SCC 759 11 (2006) 7 SCC 212
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13. We are, therefore, clearly of the view that the High Court was erred both in law and on facts in interfering with the findings ofthe Inquiry Officer, the Disciplinary Authority and the Appellate Authority by acting as a court of appeal and re- appreciating the evidence.
21. We also find able support in B. C. Chaturvedi vs. Union of India and Ors.12 wherein it has been held as under: -
12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on
12 (1995) 6 SCC 749
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that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
22. In view of the aforesaid cited judgments, the judgment in A.K. Roy (supra) cited by the learned counsel for petitioner is of no avail and the judgment in Ex. Const/GD Rana Pratap Singh (supra) cited by the learned counsel for respondents, though applicable, but needs no deliberation. We are afraid, the facts of the present case coupled with conduct of the petitioner, do not exude any confidence, more so, as the petitioner has never disputed the factual position qua the date, venue, his being present along with a Lance Naik at the time of incident, the patrol party nabbing him and the keys being in his possession and all the subsequent acts thereafter, as enumerated hereinabove. The fact that the petitioner has been unable to show anything perverse which shocks the conscience of this Court to call for any kind of interference with the order of dismissal or the SSFC proceedings. Moreover, there is no merit in the submissions advanced by the learned counsel for the petitioner. In addition, the present writ petition is hit with gross delay and latches as the petitioner is guilty of approaching this Court well beyond a reasonable time and more so, as the petitioner has failed to cite any valid reason or give any justification for such delay.
23. Accordingly, the present writ petition is not only dismissed on the ground of limitation being hit by delay and latches but also on merits.
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24. Thus, in view of the aforesaid factual position and settled law, the present petition is dismissed alongwith the pending applications, if any, leaving the parties to bear their own costs.
(SAURABH BANERJEE) JUDGE
(SURESH KUMAR KAIT) JUDGE DECEMBER 02, 2022/rr
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