Important point
Under Rule 20 of Border Security Force Rules both the Director General and Central Government can act in different situations and consideration by the Director General is not ruled out.

Headnote:Border Security Force Act, 1968—Section 10 r/w Rule 20 of Border Security Force Rules, 1969—Respondent delinquent officer was Deputy Inspector General under whose supervision commandant raided hideout of militants where in a huge amount of arms, ammunition and gold ornaments were recovered—Complete recovery was not shown in seizure report sent to higher authorities—Staff Court of inquiry was order and delinquent officer was found responsible for acts of omission and commission—Director General recorded his satisfaction that trial of delinquent officer before Court was inexpedient and impracticable and further retention of officer in service was undesirable—Order to remove delinquent officer from services without pensionary benefits was passed—Writ petition challenging the order was dismissed—Writ appeal was allowed holding that only Central Government could have taken action and not the Director General and it was incumbent on Central Government to record satisfaction that it was inexpedient and impracticable to hold trial before jurisdiction to take further action could be assumed—Appeal—High Court erred in holding that it was only Central Government which was competent to act in terms of Rule 20(2) of the Rules—Both Director General and Central Government could act in different situations and consideration by Director General was not ruled out—Enquiry could be either by Central Government or Director General—Plea of delinquent officer that order suffered from vice of non-application of mind or suffered from mala fide was untenable—Impugned order was liable to be set aside.
Held : A bare reading of Rule 20 makes the position clear that both the Director-General and the Central Government can act in different situations and consideration by the Director-General is not ruled out. Sub-rule (3) makes the position clear that the explanation is to be considered by the Director-General and only when it is directed by the Central Government, the matter shall be submitted to the Central Government with the officer’s defence and the recommendations of the Director-General. When Director-General finds the explanation unsatisfactory he recommends for action. There may be cases where the Central Government directs the Director-General to submit the case. There can be a case where the Central Government finds that the explanation is unsatisfactory. In that case the Central Government may direct the case to be submitted to it. At the first stage the consideration is by the Director-General. When he finds the explanation unsatisfactory, he recommends action by the Central Government. But even if he finds explanation to be satisfactory, yet the Central Government can direct the case to be submitted to it. Recommendations in terms of sub-rule (4) are made by the Director-General and the final order under Rule 20(5) is passed by the Central Government. The expression “as the case may be” is used in sub-rule (2) and sub-rule (5). It obviously means either of the two. It is to be further noted that the order in terms of sub-rule (5) is passed by the Central Government. But the enquiry can be either by the Central Government or the Director-General, as the case may be. There is another way of looking at sub-rule (2). Where report of the officer’s misconduct is made by the Director-General, the matter is to be placed before the Central Government and in all other cases the consideration is by the Director-General. The words “as the case may be” means “whichever the case may be” or “as the situation may be”. (See Shri Balaganesan Metals v. M.N. Shanmugham Chetty and Ors. 1987 (2) SCC 707). The expression means that one out of the various alternatives would apply to one out of the various situations and not otherwise. Therefore, the High Court’s conclusions that Central Government is the only authority to consider the matter whether holding of trial is inexpedient or impracticable is clearly indefensible. (Paras 16 to 18)

Judgment

Arijit Pasayat, J.—Leave granted in S.L.P. (C) 21363 of 2005 CC No. 6855 of 1999.

2. Both these appeals have matrix in a judgment rendered by a Division Bench of the Jammu & Kashmir High Court in a Letters Patent Appeal filed by Ashok Kumar, the respondent in Civil Appeal No. 4792 of 1999 and the appellant in the connected appeal. For the sake of convenience said Ashok Kumar is described hereinafter as the ‘delinquent officer’. By the impugned judgment the High Court held that the removal of the delinquent officer from service was in violation of the provisions contained in Section 10 of the Border Security Force Act, 1968 (in short ‘the Act’) read with Rule 20 of the Border Security Force Rules, 1969 (in short ‘the Rules’). The appeal filed by the delinquent officer was allowed upsetting the judgment of the learned Single Judge who had dismissed the writ petition filed by the delinquent officer.

3. Factual position, filtering out unnecessary details, is as follows:

There was a raid in the house of militants on 23rd and 24th March, 1992. The delinquent officer being Deputy Inspector General in Command was having Supervisory power over the Commandant who raided the hideout of militants. On the night intervening 23rd and 24th March 1992 house of one Mohd. Maqbool Dhar in Bemina Colony of Srinagar was raided by 23 men of the force. During the raid two militants described as ‘dreaded militants’ namely Javed Ahmed Shalla and Mohd. Siddiqui Soffi were apprehended. According to the authorities huge quantity of arms, ammunitions and explosives and household articles including gold ornaments were recovered. The recovery of arms, ammunition and explosives and gold ornaments were not reflected in the seizure report sent to higher authorities. Respondent was not present at the spot and he indicated his presence at the scene of operation with a view to claim undue credit of achievements of the operation. Full quantity of seized articles was not reflected in the report. 31 major weapons were recovered but only 22 were shown. Two pistols, five AK-56 rifles, one rocket launcher and one Telescopic Rifle were not shown in the list of ammunition. Out of 31 gold ornaments 25 pieces were not shown in the list of seized articles. Second situation Report was also sent, but the same also did not reflect recovery of complete articles. To cover up these lapses another encounter was shown to have taken place and a report regarding fake encounter was sent vide No. 0-7209 which indicated the recovery of some gold ornaments. Another report was also sent from office of delinquent officer declaring goods which were not declared earlier. It was admitted that recovery of some weapons was not reflected in earlier report.

4. Therefore, a Staff Court of Inquiry was ordered to be held on 16th May, 1992 and the delinquent officer was found responsible for following act of omission and commission:

(a) Falsely showing his presence at the scene of operation and search.

(b) Failure to make any observations regarding serious omissions and discrepancies in the unit site report and detailed report.

(d) Suppression of information regarding seizure of household items.

(e) Suppression of information regarding seizure of a substantial quantity of gold ornaments.

(f) Failure in supervisory duties by not giving expected directions to the Commandant in regard to accounting and disposal of seized items.

5. On 18.9.1992 Director General recorded his satisfaction that the material witnesses connected with case will not be available and as such the trial of the delinquent officer before Security Force Court was inexpedient and impracticable and opined that further retention of the delinquent officer in service was undesirable.

6. On 23/25.9.1992 show-cause notice was served upon the delinquent officer as to why his services be not terminated in accordance with Rule 20 o

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Judicial Analysis

SupremeToday

2005 Supreme(SC) 1362

Important pointUnder Rule 20 of Border Security Force Rules both the Director General and Central Government can act in different situations and consideration by the Director General is not ruled out.

Cases Referred (5)

Judicial Analysis

Important point
Under Rule 20 of Border Security Force Rules both the Director General and Central Government can act in different situations and consideration by the Director General is not ruled out.