Karnail Singh vs Union Of India & Others
2022 Latest Caselaw 826 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU



                                                WP(C) No.4174/2019
                                                CM No.8603/2019


                                                Reserved on : 22.04.2022
                                                Pronounced on : 23.05.2022



Karnail Singh                                  .....Appellant(s)/Petitioner
                         Through: Mr. Ajay Sharma, Advocate
                versus
Union of India & others                        ..... Respondent(s)
                         Through: Mr. Vishal Sharma, ASGI

Coram:    HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE


                                 JUDGMENT

1. Through the medium of this writ petition, the petitioner is seeking to quash

notice dated 05.11.2019 issued by Deputy Inspector General, respondent No.6

herein, by virtue of which the petitioner has been directed to appear before him

for hearing the charges under BSF Rule 45-B.

2. The facts-in-brief, as gathered from the writ file, are that the petitioner

came to be appointed as Assistant Commandant/Medical Officer on 25.05.1992

in the BSF. Thereafter, he came to be promoted as Deputy Commandant/Senior

Medical Officer, then as Chief Medical Officer and then as Commandant

(Medical)/CMO and, thereafter, was given the grade pay of DIG rank. It is

averred that the genesis of the case started when the petitioner was on 32 days

leave with effect from 28.01.2013 to 28.02.2013 with permission to depart on 2 WP(C) 4174/2019

25.01.2013. During the period when the petitioner was on leave, Inspector

Vigilance, SHQ, BSF wrote a letter to DIG, SHQ, BSF on 28.01.2013 informing

the persons from outside Mizoram as well as local civilians were visiting the

houses of BSF personnel who were living outside the force premises alone. He

also informed that one Sub Inspector/Staff Nurse Miss Khunguiliu Gonmei lives

alone and a male person of other state stays with her occasionally and this can

be harmful for an individual on security point of view and also may spoil the

image of BSF. It is averred by the petitioner herein that in order to protect her

own image and to divert the attention of vigilance department, which initiated a

report against her, moved a false and frivolous complaint of harassment before

Director General, BSF against the petitioner and some other BSF officials.

Accordingly, a Staff Court of Inquiry was initiated against the petitioner

comprising of two inquiry officers. Alongside the Staff Court of Inquiry, another

inquiry was also conducted by the sexual harassment committee comprising of

one Dr. Neelam Srivastava, Chairman and four other members of the committee.

It is averred that in the Staff Court of Inquiry nothing was proved against the

petitioner, but it recommended the transfer of petitioner as well as complainant

Miss Khunguiliu Gonmei and other staff nurses. Even the sexual harassment

committee in its report categorically stated that nothing was proved against the

petitioner and, as a result of which, the Director General, BSF, treated the

complaint against the petitioner as closed.

3. Further, it is submitted that after the culmination of proceedings in the

Staff Court of Inquiry and the sexual harassment committee, Miss Khunguiliu

Gonmei again on 01.05.2014 moved a complaint before the National

Commission for Women. Accordingly, acting on the complaint made before the 3 WP(C) 4174/2019

National Commission for Women, Inspector General, FTR Headquarter, BSF,

again constituted a committee comprising of Chairman Dr. Ms Subhansani

Besra, CMO, 53 Bn. and six members including co-opted member, who was

from a NGO recognized Department of Women and Development. It is averred

that a detailed inquiry was conducted for the third time also and finally in the

inquiry report it has been held that there was no direct evidence including the

circumstantial evidence to substantiate the allegations levelled by the

complainant Miss Khunguiliu Gonmei. However, the committee recommended

that DG's displeasure be issued to the petitioner.

4. Now the grievance of petitioner is that after a lapse of almost four years

and nine months Deputy Inspector General, Sector Headquarter BSF, Jammu,

respondent No.6 herein, issued notice dated 05.11.2019, impugned herein, by

virtue of which the petitioner has been directed to appear before him regarding

the same set of charges under Rule 45-B of BSF Rules, 1969, whereas the matter

has already attained finality. Hence the present petition.

5. Learned counsel appearing for petitioner argued that the allegations

levelled against the petitioner have already enquired into three times by three

different committees and on all the occasions nothing was found against the

petitioner regarding harassment, much less sexual harassment. He further argued

that once the DG's displeasure was issued to the petitioner, the matter attained

its finality; therefore, issuance of impugned notice by respondent No.6 after a

lapse of four years and nine months is otherwise not legally sustainable in the

eyes of law, rather the same has been issued with oblique motive of harassing

and victimizing the petitioner and is sheer abuse of process of law.

4 WP(C) 4174/2019

6. Objections have been filed on behalf of respondents contending therein

that three different committees were constituted to go through the allegations

levelled by Miss Khunguiliu Gonmei. It is further contended that the committee

on sexual harassment after detailed inquiry found the petitioner guilty of

misconduct of having visited the house of Miss Khunguiliu Gonmei well

knowing that she was unmarried and had been staying alone. The committee

also found him guilty of asking her to meet at about 2200 hours on 11.01.2013

at Delhi Airport. The committee, thus, opined that the petitioner's conduct

amounted to harassment but not sexual harassment and recommended for DG's

displeasure. Accordingly, the DG's displeasure was conveyed to the petitioner

on 13.02.2015. It is averred in the objections that the action had been completed

with the issuance of DG's displeasure to the petitioner under BSF Act and Rules

(paragraph-10), as such the case was submitted to the Ministry of Home Affairs,

Government of India, New Delhi. However, the Ministry of Home Affairs in

exercise of its power of superintendence directed to initiate disciplinary action

against the petitioner under the provisions of BSF Act and the Rules.

Accordingly, in compliance to the above directions, Sector Headquarter BSF,

Jammu has issued notice to the petitioner vide Letter

No.Estt/25/195/2019/17541-42 dated 05.11.2019 (impugned herein) for

conducting his hearing under Rule 45-B of BSF Rules, 1969.

7. Learned counsel appearing for respondents argued that the Central

Government is competent to pass any direction or order that may be required to

ensure complete and full compliance with the mandate of law. He further argued

that there was no ulterior or oblique motive in initiating the disciplinary

proceedings against the petitioner.

5 WP(C) 4174/2019

8. Heard learned counsel appearing for the parties, considered their rival

contentions and also perused the file at length.

9. Admittedly, on the complaint of Miss Khunguiliu Gonmei, a Staff Court

of Inquiry was initiated against the petitioner, and one Raja Paul, Commandant

of 57 Bn. was detailed to conduct Staff Court of Inquiry. During the period of

Staff Court of Inquiry, complainant-Miss Khunguiliu Gonmei made an appeal

objecting the detailment of said Raja Paul. Accordingly, after the objection was

raised by Miss Khunguiliu Gonmei, the name of Mr. Raja Paul was cancelled

and a new Staff Court of Inquiry was constituted comprising of one Mridul

Sonwal, DIG of SHQ BSF, Manipur as the Presiding Officer and one Dr. (Mrs.)

A Surbala Devi, CMO, a female member, to enquire into the allegations leveled

by the complainant. Here, it is to be seen that the replacement of earlier staff

court of inquiry with the new one was only on account of objections raised by

complainant-Miss Khunguiliu Gonmei so that a fair and impartial inquiry could

be conducted. The said Staff Court of Inquiry after detailed inquiry

recommended for transfer of petitioner herein as well as complainant-Miss

Khunguiliu Gonmei.

10. It is to be seen here that alongside the Staff Court of Inquiry, another

inquiry was also conducted by the Sexual Harassment Committee comprising of

one Dr. Neelam Srivastava, Chairman and four other members of the committee.

Even the sexual harassment committee in its report stated that nothing was

proved against the petitioner and, as a result of which, the Director General,

BSF, treated the complaint against the petitioner as closed.

6 WP(C) 4174/2019

11. Even after the culmination of proceedings in the Staff Court of Inquiry

and the sexual harassment committee, complainant-Miss Khunguiliu Gonmei

being not satisfied again moved a complaint before the National Commission for

Women on 01.05.2014. Acting on the said complaint, Inspector General, FTR

Headquarter, BSF, again constituted a committee comprising of Chairman Dr.

Ms Subhansani Besra, CMO, 53 Bn. and six members including co-opted

member, who was from a NGO recognized Department of Women and

Development. Once again, for the third time also, a detailed inquiry was

conducted and finally in the inquiry report it has been held that there was no

direct evidence including the circumstantial evidence to substantiate the

allegations levelled by the complainant-Miss Khunguiliu Gonmei. However, the

committee recommended that DG's displeasure be issued to the petitioner and

the matter attained finality.

12. It seems that when the matter was being conducted by the Sexual

Harassment Committee, the petitioner herein submitted a representation dated

01.09.2014 to the Home Secretary, MHA to cancel the Sexual Harassment

Committee constituted by the BSF. It seems during the pendency of said

representation, the Sexual Harassment Committee submitted the inquiry report

recommending the issuance of DG's displeasure against the petitioner. Once the

Sexual Harassment Committee had already concluded the inquiry and its

recommendations had also been accepted and acted upon by the respondents, in

my view the said representation automatically lost its significance, as the same

deemed to have been rendered infructuous because it was not the complainant,

rather it was the petitioner herein himself who had submitted the representation 7 WP(C) 4174/2019

to the Ministry of Home Affairs for cancellation of Sexual Harassment

Committee.

13. However, the Ministry of Home Affairs kept the said representation

pending since 01.09.2014 till 31.05.2019, i.e., for four years and nine months,

when vide communication dated 31.05.2019 it was directed to initiate

disciplinary action against the petitioner herein. Obviously such an inordinate

delay on the part of Ministry of Home Affairs in deciding the representation of

petitioner itself defeats equity and would clearly amount to breach of the

constitutional imperative. Therefore, on this sole ground of delay, the impugned

notice is liable to be quashed.

14. Further, this Court vide order dated 03.12.2019 had directed the

respondents not to act upon the impugned notice dated 05.11.2019. A perusal of

the said order reveals that the DG's displeasure was issued to the petitioner on

13.02.2015, as a consequence of which the petitioner was deprived of Grade Pay

of Rs.10,000/- and adverse remarks were also recorded in his APAR for the

period 01.04.2013 to 31.03.2014. Once the recommendations of the committee

have already been implemented and the DG's displeasure had been issued to the

petitioner, as a consequence of which penalty has also been imposed upon the

petitioner, in my view the matter has attained finality and nothing remains to

adjudicate upon, more particularly when it seems the complainant-Miss

Khunguiliu Gonmei also did not question the recommendations of the

committee that DG's displeasure be issued to the petitioner. Further, declaring

the DG's displeasure, issued on 13.02.2015, as non-est vide order dated

08.11.2019 after a period of about four years and nine months is nothing but 8 WP(C) 4174/2019

abuse of process of law. Hence, on this ground too, the impugned notice is liable

to be quashed.

15. What is held by the Apex Court in paragraphs 13 and 14 in case, titled as,

K.R. Deb vs Collector of Central Excise, AIR 1971 SC 1447, after referring to

Rule 15(1) of the Central Civil Services (Classification, Control and Appeal)

Rules, is reproduced hereunder:

"13. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.

14. In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant before the judicial commissioner....."

16. Before proceedings further, I would like to reproduce hereunder the

relevant portion of communication dated 28.01.2013 written by Inspector

(Vigilance) BSF, to Deputy Inspector General, SHQ BSF:

".....For instance, SI/Staff Nurse Gonmai also living alone and male person of other State stays with her occasionally. This can be harmful for an individual on security point of view and also may spoil the image of the BSF....."

17. Here, it would also be appropriate to reproduce herein paragraph-5 and

relevant portion of paragraph-6 of the objections filed by the respondents:

"5. That on receipt of the said communication from the Inspector (Vigilance), the DIG, Sector Head Quarter BSF Aizawl called the 9 WP(C) 4174/2019

available medical officers of the composite hospital as well as others including SI/Staff Nurse Miss K Gonmei, to discuss and sort out the matter. During the meeting, said Staff Nurse K Gonmei admitted that a rajasthani male person visits her residence and they are going to marry soon. During this interaction she levelled allegations against the petitioner for having flared up this issue for no reason. Since the petitioner was on leave at that time, hence the DIG Sector HQ BSFR Aizawl decided that he would enquire these allegations after the petitioner arrived at the station from his leave and SI/Staff Nurse Miss K. Gonmei also agreed for the said course.

6. That before DIG, SHQ BSF Aizawl could pursue the matter after arrival of the petitioner from leave, a written complaint dated 18/03/2013 was submitted by SI/Staff Nurse Miss K Gonmei addressed to the Director General, BSF, New Delhi with copy to DIG SHQ BSF Aizawl and the same was received through Composite Hospital Aizawl vide its L/No.Estt/Misc/CH- Azl/2013/127-28 dated 19/03/2013. In this complaint, SI/Staff Nurse Miss K. Gonmei of Composite Hospital Aizawl had leveled various allegations of harassment against the petitioner and other officials of SGQ BSF Aizawl....."

18. The respondents have themselves averred in their objections that after the

communication from Inspector (Vigilance), Miss K Gonmei appeared before the

DIG, Sector Headquarter BSF, and had admitted that a rajasthani male person

had been visiting her residence and that she had levelled allegations against the

petitioner for having flared up this issue, i.e., a male person from other State had

been visiting to live occasionally with her at a rented private accommodation.

Admittedly, Miss K Gonmei did not make a complaint against the petitioner

when he actually visited her residence on 25.07.2012, rather on 18.03.2013 she

made a complaint against the petitioner after Miss K Gonmei was called by the

DIG after receiving a communication from Inspector (Vigilance) that a male

person had been visiting her residence. Further, one cannot lose sight of the fact

that the Sexual Harassment Committee while recommending the issuance of

DG's displeasure against the petitioner, also noticed shortcomings on the part of

complainant Miss Khunguiliu Gonmei.

10 WP(C) 4174/2019

19. Therefore, in view of what has been discussed above, I deem it proper to

allow the writ petition. Accordingly, the same is allowed and the notice dated

05.11.2019 issued by the Deputy Inspector General, respondent No.6 herein, is

hereby quashed. Connected CM(s), accordingly, stands disposed of.

           Jammu:                                                           (Tashi Rabstan)
           23.05.2022                                                           Judge
           (Anil Sanhotra)


                                        Whether the order is reportable ?        Yes
                                        Whether the order is speaking ?          Yes




ANIL SANHOTRA
2022.05.24 11:48
I attest to the accuracy and
integrity of this document