THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Extra Ordinary Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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W.P. (C) No. 24 of 2023
Mr. Chandan Bikomiya Deori,
S/o Shri Lankeswar Bikomiya Deori,
Aged about 36 years,
R/o Mahadevpur-I,
P.O. & P.S. Mahadevpur,
District Namsi, Arunchal Pradesh.
..... Petitioner
Versus
1. Ministry of Home Affairs, Government of India,
Through the Secretary,
Department of ITBP 11 Wahini,
Indo-Tibetan Border Police Force,
Via 99 Force Post Office
Pin-110001.
2. The Deputy Inspector General,
Indo-Tibetan Border Police (ITBP),
Sector Head Quarter (SHQ),
Gangtok
Pin-737101.
3. The Commandant,
Indo-Tibetan Border Police (ITBP),
Sector Head Quarter (SHQ),
Gangtok
Pin-737101.
.....Respondents
Application under Article 226/227 of the Constitution of India.
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Appearance:
Ms. Rachhitta Rai, Advocate for the Petitioner.
Ms. Sangita Pradhan, Deputy Solicitor General of India
assisted by Ms. Natasha Pradhan and Ms. Purnima
Subba, Advocates for the Respondents.
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Date of hearing : 14.08.2023
Date of judgment : 21.08.2023
2
W.P. (C) No. 24 of 2023
Chandan Bikomiya Deorai vs. Ministry of Home Affairs & Ors.
JUDGMENT
Bhaskar Raj Pradhan, J.
1. This writ petition seeks to challenge the
impugned order of compulsory retirement dated
25.06.2020 (compulsory retirement order) and impugned
office memorandum dated 19.12.2022 (order in appeal) by
which the appeal preferred by the petitioner was rejected by
the respondent no.2. Heard the learned counsel for the
parties.
2. The petitioner was working as constable in Indo-
Tibetan Border Police Force (the Force). He joined the Force
in the year 2007 and was later posted at 11BN,
Chungthang, North Sikkim since 2018.
3. According to the petitioner on 10.05.2020 while
he was on duty at Chubaka Station one Manoj Kumar, the
Sport Coordinator met him at the Advance Station along
with some of his friends celebrating a friend's birthday and
having consumed alcohol. Thereafter, there was verbal
altercation between them. The Sport Coordinator reported
the incident to the higher authority. On 17.06.2020 the
petitioner was served with show cause notice giving him
three days to show cause his defense. The petitioner 3 W.P. (C) No. 24 of 2023 Chandan Bikomiya Deorai vs. Ministry of Home Affairs & Ors.
tendered his apology in writing. He now explains that he
tendered apology as he did not know what the show cause
actually meant. Pursuant to the show cause notice and his
written apology the compulsory retirement order was
issued. Thereafter, the petitioner filed an application under
Rule 28 of the Indo-Tibetan Border Police Force Rules,
1994 (the ITBPF Rules, 1994) before the respondent no.2.
The petitioner did not receive any response and therefore,
he sent a letter dated 06.11.2020 seeking the status of his
letter dated 22.08.2020. On 02.12.2020 the petitioner
received a letter from the respondents informing him that
his appeal was dismissed reiterating that necessary
investigation had been done before issuing the compulsory
retirement order and that the appeal was devoid of merit.
4. The petitioner thereafter, filed a Writ Petition (C)
No. 10 of 2021 before this Court challenging the impugned
order of retirement dated 25.06.2020 as well as the
Department Memorandum dated 02.12.2020. This Court
disposed of the writ petition on the following terms:-
"4. In view of the submissions made, without going into the merits of the case, the impugned Department Memorandum dated 02.12.2020 passed by the respondent no.2 is set aside. The appeal under Rule 28 of the ITBPF Rules, 1994 shall be heard afresh by the concerned authority after giving an opportunity of hearing including opportunity to file written submissions and personal 4 W.P. (C) No. 24 of 2023 Chandan Bikomiya Deorai vs. Ministry of Home Affairs & Ors.
hearing to the petitioner on a convenient date after due written notice. The writ petition is disposed of accordingly."
5. Thereafter, on 16.12.2022 the petitioner filed written
submissions before the respondent no.2 raising his
grounds to set aside of the compulsory retirement order. In
the written submissions the petitioner raised the following
three issues:-
1. Section 29 of the Indian Tibetan Border Police Force Act, 1992 (ITBPF Act, 1992) does not contemplate termination or compulsory retirement of any of its employees if he is found in a state of intoxication whether on duty or not. Rule 25 of the ITBPF Rules, 1994 therefore cannot override the provisions of the ITBPF Act, 1992. The order of compulsory retirement dated 25.06.2020 is therefore, illegal.
2. The petitioner was never provided with any opportunity of hearing before he was compulsorily retired vide order dated 25.06.2020.
3. Although the departmental memorandum dated 02.12.2020 informed the petitioner that necessary investigation had been done before the impugned order of compulsorily retirement no such investigation have been made.
6. The compulsorily retirement order details the
numerous instances of indiscipline committed by the
petitioner over a period of time. It includes the various 5 W.P. (C) No. 24 of 2023 Chandan Bikomiya Deorai vs. Ministry of Home Affairs & Ors.
offences and the punishments undergone by him for the
year 2013, 2014, 2015, 2016 and 2019. It also details the
various opportunities given to him to improve. The
compulsory retirement order also narrates the incident of
10.05.2020 in which the petitioner was found drunk and
thereafter, started physically fighting with the sports
coordinator running after him with a 'khukuri' to kill him. It
refers to the medical examination by the Medical Officer,
the finding that he had in fact consumed intoxicants and
the fact that he was in an intoxicated state. A perusal of
the compulsory retirement order does not reflect that he
was compulsorily retired only because he admitted to his
guilt in his reply to the show cause notice.
7. The impugned order in appeal issued by the
respondent no.2 records that in order to conduct in-depth
examination of the points made by the petitioner during his
personal hearing on 16.12.2022 and the appeal, the Force,
11th Corps had been directed to provide paragraph wise
comments and detailed report. Thereafter, it was found:- 6
W.P. (C) No. 24 of 2023 Chandan Bikomiya Deorai vs. Ministry of Home Affairs & Ors.
8. The order in appeal deals with all the points
raised by the petitioner. The order in appeal notes that the
post held by the petitioner was of sensitive nature. It also
notes the various instances of repeated indiscipline
committed by the petitioner which led to the judicial
committee being constituted on 09.01.2020. It also records
that the petitioner was given one more chance to continue
service on the condition that he would not indulged in 7 W.P. (C) No. 24 of 2023 Chandan Bikomiya Deorai vs. Ministry of Home Affairs & Ors.
indiscipline in the future. It notes that the petitioner
however, did not live up to the expectation and indulge in
the act of gross indiscipline on 10.05.2020 when after
consuming alcohol the petitioner disobeyed the orders of
his superior, manhandled him and ran to kill him with the
"khukuri".
9. The petitioner admits that he was found drinking
alcohol on the date of the incident in the writ petition. The
challenge to the compulsorily retirement order in the writ
petition is not on merits but only on technical and
peripheral grounds.
10. The ITBPF Act, 1992 is an Act to provide for the
constitution and regulation of the Armed Force of the
Union for ensuring the security of the borders of India and
for matters connected therewith. The ITBPF Act, 1992
provides for the constitution of the Force and conditions of
service of the members of the Force. Section 11 relates to
dismissal, removal or reduction of any person by the
Director General and by other Officers. Chapter III deals
with various offences which can be tried by a Force Court.
Section 29 is part of Chapter III and provides that if any
person subject to the ITBPF Act, 1992 is found in a state of 8 W.P. (C) No. 24 of 2023 Chandan Bikomiya Deorai vs. Ministry of Home Affairs & Ors.
intoxication, whether on duty or not, shall on conviction by
a Force Court, be liable to suffer imprisonment for a term
which may extend to six months or such less punishment.
11. In the present proceedings the petitioner was not
charged under Section 29 of the ITBPF Act, 1992 but under
Rule 25 of the ITBPF Rules, 1994 for his termination on the
ground of unsuitability.
12. The ITBPF Rules, 1994 was enforced in exercise
of the powers conferred by Section 156 of the ITBPF Act,
1992. Rule 25 of the ITBPF Rules, 1994 which was invoked
in the petitioner's case reads as under:-
"25. Termination of service of enrolled persons on the grounds of unsuitability.-Where a Commanding Officer not below the rank of Commandant is satisfied than an enrolled person is unsuitable to be retained in the Force, the enrolled person shall be-
a) so informed;
b) furnished with the particulars of all matters adverse to him; and
c) called upon to urge any reasons he may wish to put forward in favour of his retention in the service:
Provided that clauses (a), (b) and (c ) shall not apply, if the Commanding Officer not below the rank of Commandant is satisfied that for reasons to be recorded by it in writing, it is not expedient or reasonably practicable to comply with the provisions thereof;
Provided further that such competent authority may not furnish to the enrolled person any matter adverse to him, if in his opinion, it is not in the interest of the security of the State to do so.
(2) After considering the explanation, if any, the Commanding Officer not below the rank of Commandant, may call upon the enrolled person to retire or resign and on his refusing to do so, 9 W.P. (C) No. 24 of 2023 Chandan Bikomiya Deorai vs. Ministry of Home Affairs & Ors.
the enrolled person may be compulsorily retired or discharged from the service."
13. A perusal of Rule 25 of the ITBPF Rules, 1994
makes it clear that it is a complete disciplinary rule to
proceed against a person on the ground of unsuitability
and not anything to do with offences covered by Chapter III
of the ITBPF Act, 1992. It requires the satisfaction of the
Commanding Officer not below the rank of a Commandant
that the enrolled person is unsuitable to be retained in the
Force. On such satisfaction the enrolled person is required
to be (a) informed; (b) furnished with the particulars of all
matter adverse to him; and (c) called upon to urge any
reasons he may wish to put forward in favour of retention
in the service. The proviso states that if the Commanding
Officer not below the rank of Commandant is satisfied that
for reasons to be recorded by it in writing, it is not
expedient or reasonably practicable to comply with the
provisions thereof he may not even comply with the
requirement of (a) , (b) and (c) above. Further, the
competent authority may not furnish any matters adverse
to the enrolled person, if in his opinion it is not in the
interest of the security of the State. Sub-section (2) thereof
provides that after considering the explanation, if any, the 10 W.P. (C) No. 24 of 2023 Chandan Bikomiya Deorai vs. Ministry of Home Affairs & Ors.
Commanding Officer not below the rank of the
Commandant, may call upon the enrolled person to retire
or resign and on his refusing to do so, the enrolled person
may be compulsorily retired or discharge from the service.
14. It is the petitioner's case that he was furnished
with a show cause notice. As such it is clear there has been
compliance of all the three requirements contemplated in
Rule 25. The excuse of not understanding Hindi and
therefore, admitting his guilt in the petitioner's reply to the
show cause notice has been examined by the respondent
no.2 who has held that the petitioner having passed Class
X from a Government Higher Secondary School had enough
knowledge of the Hindi language.
15. The learned Counsel for the petitioner also urged
that although during the relevant time three persons were
punished for the same act only the petitioner was issued
with compulsorily retirement order. Besides this assertion
nothing else is furnished to examine the correctness of the
allegation. In writ proceedings this court is required to
correct errors of law, procedural errors leading to manifest
injustice or gross violations of principles of natural justice.
This Court cannot examine the correctness of the allegation 11 W.P. (C) No. 24 of 2023 Chandan Bikomiya Deorai vs. Ministry of Home Affairs & Ors.
made by the petitioner regarding other persons who are not
before this Court. Furthermore, this Court does not
exercise appellate powers while exercising power under
Article 226/227 of the Constitution of India. The power of
judicial review exercised by constitutional courts does not
assume the role of the appellate authority. What may be
examined, in an appropriate case, is whether there is any
error in the decision making process. The merits of the
quantum of punishment imposed cannot be interfered with
unless the exercise of discretion in awarding punishment is
perverse as the punishment is grossly disproportionate. In
a Force constituted for ensuring the security of the borders
of India discipline is paramount and the writ court would
hesitate from interfering in exercise of the discretionary
jurisdiction of the authorities constituted and appointed
under the ITBPF Act, 1992 and the ITBPF Rules, 1994
unless it is shown that the exercise of power was
unconstitutional, arbitrary or perverse. The authorities are
best judges to maintain the discipline of the Force. Unless
gross violation of natural justice or perversity in the
quantum of punishment compared to the quantum
specified is seen it would not be wise to interfere in writ 12 W.P. (C) No. 24 of 2023 Chandan Bikomiya Deorai vs. Ministry of Home Affairs & Ors.
jurisdiction although the power of this Court is sufficiently
wide to root out any illegality wherever found.
16. Thus, this Court is of the considered view that
no case has been made out by the petitioner to invoke the
judicial review jurisdiction of this Court against the
compulsory retirement order and the order in appeal
rejecting his appeal. The writ petition is dismissed. No
orders as to costs.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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