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2008 Supreme(Del) 830
IN THE HIGH COURT OF DELHI
T.S.THAKUR,S.N.AGGARWAL
RAKESH SHARMA - Appellant
Versus
UNION OF INDIA - Respondent
W.P.(C) 623/2005
Decided On : 07-08-2008
Mr. Anil Gautam, adv.
Mr. A.K. Bhardwaj, adv.
The main legal point established in the judgment is that disciplinary proceedings must adhere to the prescribed rules and procedures, ensuring fairness and compliance with legal requirements.
Headnote:
DISOBEYING - Border Security Force - BSF Act, 1968, Section 21(2), Section 24(b), Section 35(a) - The court discussed the charges against the petitioner under Sections 21(2), 24(b), and 35(a) of the BSF Act, 1968, which pertained to disobedience of lawful command, malingering, and making false allegations against superiors. The court highlighted the legal provisions and their interpretations, emphasizing the requirement to reduce allegations to writing, the discretion of the Commandant in hearing charges, and the necessity of fair investigative processes.
Fact of the Case:
The petitioner, a Commandant in the Border Security Force, faced trial for disobedience of lawful command, malingering, and making false allegations against superiors. He filed a writ petition seeking to quash the trial order and disciplinary proceedings.
Finding of the Court:
The court found that the disciplinary proceedings were initiated in accordance with the rules and there was no interference with the exercise of discretion by the Commandant. The court also rejected the petitioner's claims of denial of hearing and lack of opportunity for cross-examination.
Issues: The issues revolved around the legality of the disciplinary proceedings, including the initiation of charges, hearing of the petitioner, and the fairness of the investigative process.
Ratio Decidendi: The court held that the disciplinary proceedings were conducted in accordance with the prescribed rules and procedures, and there was no evidence of prejudice or unfairness in the process.
Final Decision: The writ petition was dismissed, and the petitioner was allowed to question the outcome of the court martial on legal grounds.
The petitioner is serving as Commandant in the Border Security Force. He is facing trial by the General, Security Force hereinafter referred to as GSFC for disobedience of lawful command given to him, malingering and for making false allegations against his superiors punishable under Sections 21(2), 24(b) and 35(a) of the BSF Act, 1968. The charges framed against the petitioner read as under: “CHARGE SHEET The accused Shri Rakesh Sharma, Second-in-Command, IRLA No. 18430868 of 131 Bn BSF attached with 26 Bn BSF is charged with:- (FIRST CHARGE) DISOBEYING A LAWFUL COMMAND GIVEN BSF ACT SEC 21(2) BY HIS SUPERIOR OFFICER in that he, at Sector Headquarter BSF Baramulla on 25 Aug 2002 when asked by DIG BSF Baramulla to take over the charge of Commandant SB-II Adhoc Battalion deployed on election duty under Frontier/Sector HQ Baramulla, did not take over the charge of said Battalion as reported by SHQ Baramulla Frontier vide Signal No. O/4989 dated 29.08.02 and FTR HQ BLA L/No. Ops/517/B Ftr/02/2558-59 dated 25 Sep02. (SECOND CHARGE) MALINGERING BSF ACT SEC 24(b) in that he, at Sector Headquarter BSF Baramulla on 28 Aug 2002 with intention of evading his duties to take over charge of SB-II Adhoc Battalion pretended to be sick whereas he was not so suffering as intimated by SHQ Baramulla vide signal No. O/4992 dated 28.08.02. BSF ACT SEC 35(a) IN A DOCUMENT SIGNED BY HIM 3RD CHARGE KNOWINGLY MAKING A FALSE STATEMENT In that he, At 131 Bn BSF Seemanagar (WB) on 29.07.03 when performing the duty of Second in Command of 131 Bn BSF in a letter No. Nil dated 29.07.03 signed by him and addressed to DG BSF, New Delhi, made a statement that Shri R P Singh, DIG/PSO is a interested party as serious allegation are against him in the case, he is manipulating things at various Hqrs and till the time he is there at SB, the question of justice does not arise, knowing well such statement to be false.”
2. Aggrieved by the proposed trial by Court Martial on the above counts, the petitioner has filed the present writ petition for a writ of certiorari quashing the order by which he has been put on trial as also the record of evidence and the attachment of the petitioner under the command of the South Bengal Frontier. The petitioner has also prayed for a writ of prohibition restraining Sh Rajender Singh, IG BSF from dealing with the discplinary proceedings against him and for a mandamus directing the respondents 1 and 2 to initiate appropriate criminal/departmental proceedings against respondents no. 7 to 10.
3. Briefly stated the petitioners case is that he was denied 7 days casual leave on extreme compassionate grounds in the year 2002 only because Sh. M.S. Sharma, Second-in-command had to be allowed to proceed on leave even when the latter had already availed leave for the year where as the petitioner had not done so. Aggrieved by the alleged unfair denial of casual leave the matter was reported by the petitioner to DG, BSF who asked for the comments of the officers concerned in response to which Sh. R.P. Singh the then DIG/Principal Staff Officer who was officiating as IG had according to the petitioner sent a concocted reply dated 24th October, 2002 in an attempt to save his skin and to implicate the petitioner. The said communication had also enumerated the alleged acts of misconduct of the petitioner and recommended disciplinary action against him. On receipt of a copy of the above communication, the DIG, BSF, Krishnanagar had asked the Commandant of the petitioner to initiate disciplinary action against him.
At the same time, the petitioner was, in terms of a signal dated 12th June, 2003 attached to 26 Bn BSF, New Delhi for disciplinary purposes. The petitioner alleges that he sought an interview with the Director General of the Force and prayed for cancellation of the attachment order who, according to the petitioner, ordered a Staff Court of Inquiry (hereinafter referred to as SCOI). No such inquiry was, however, initiated against
