Back
IN THE HIGH COURT OF DELHI
S. RAVINDRA BHAT, DEEPA SHARMA, JJ.
Yacub Kispotta & Ors. - Petitioners
Versus
Director General BSF & Ors. - Respondents
W.P. (C) 7611/2003
Decided on : 28.09.2015
BORDER SECURITY FORCE ACT, 1968 - SECTION 14(C), 40, 48, 49, 64, 70, 74, 170, 171, 173, 174, 175 - BORDER SECURITY FORCE RULES, 1969 - RULE 22, 23, 36, 47, 48, 49, 51, 170 - FACT OF THE CASE: Petitioners, BSF constables, were dismissed from service without inquiry for allegedly abandoning their post and losing government property during a militant attack. They challenged the dismissal, arguing that it was not reasonably practicable to hold an inquiry and that the BSF's decision was based on prejudice and predisposition. The BSF contended that the petitioners' conduct was cowardly and that it was not reasonably practicable to hold an inquiry due to the unavailability of witnesses and the security risk involved. - FINDING OF THE COURT: The Court held that the BSF's decision to dispense with an inquiry was not based on objective facts and was therefore unreasonable. It noted that the petitioners were kept in close arrest for two years, that a SCOI and RoE were conducted, and that several witnesses, including independent witnesses, deposed during these proceedings. The Court also found that the BSF's assertion that it was not reasonably practicable to hold a Force Court was belied by the availability and willing participation of the witnesses in the RoE. The Court concluded that the BSF's prejudice and predisposition to say that the petitioners were somehow culpable was based on the fact that they were unharmed and not injured, and that the BSF had deliberately withheld relevant materials from the petitioners. - ISSUES: Whether the BSF's decision to dispense with an inquiry was based on objective facts and was therefore reasonable. Whether the BSF's assertion that it was not reasonably practicable to hold a Force Court was belied by the availability and willing participation of the witnesses in the RoE. Whether the BSF's prejudice and predisposition to say that the petitioners were somehow culpable was based on the fact that they were unharmed and not injured. - RATIO DECIDENDI: The Court held that the BSF's decision to dispense with an inquiry was not based on objective facts and was therefore unreasonable. It noted that the petitioners were kept in close arrest for two years, that a SCOI and RoE were conducted, and that several witnesses, including independent witnesses, deposed during these proceedings. The Court also found that the BSF's assertion that it was not reasonably practicable to hold a Force Court was belied by the availability and willing participation of the witnesses in the RoE. The Court concluded that the BSF's prejudice and predisposition to say that the petitioners were somehow culpable was based on the fact that they were unharmed and not injured, and that the BSF had deliberately withheld relevant materials from the petitioners. - FINAL DECISION: The Court quashed the termination orders and directed the Respondents to reinstate all the Petitioners in service from the date of their illegal termination i.e. 08.05.2002. They shall be entitled to all consequential benefits including increments, pay revision and due consideration for promotions in accordance with the applicable rules and policy. However, arrears of salary shall be restricted to 50%. An Order of reinstatement and consequential pay fitment/fixation shall be issued within 8 weeks and amounts shall be paid in 12 weeks. The writ petition is allowed in the above terms.
Fact of the Case:
Petitioners, BSF constables, were dismissed from service without inquiry for allegedly abandoning their post and losing government property during a militant attack. They challenged the dismissal, arguing that it was not reasonably practicable to hold an inquiry and that the BSF's decision was based on prejudice and predisposition. The BSF contended that the petitioners' conduct was cowardly and that it was not reasonably practicable to hold an inquiry due to the unavailability of witnesses and the security risk involved.
Finding of the Court:
The Court held that the BSF's decision to dispense with an inquiry was not based on objective facts and was therefore unreasonable. It noted that the petitioners were kept in close arrest for two years, that a SCOI and RoE were conducted, and that several witnesses, including independent witnesses, deposed during these proceedings. The Court also found that the BSF's assertion that it was not reasonably practicable to hold a Force Court was belied by the availability and willing participation of the witnesses in the RoE. The Court concluded that the BSF's prejudice and predisposition to say that the petitioners were somehow culpable was based on the fact that they were unharmed and not injured, and that the BSF had deliberately withheld relevant materials from the petitioners.
Issues: Whether the BSF's decision to dispense with an inquiry was based on objective facts and was therefore reasonable. Whether the BSF's assertion that it was not reasonably practicable to hold a Force Court was belied by the availability and willing participation of the witnesses in the RoE. Whether the BSF's prejudice and predisposition to say that the petitioners were somehow culpable was based on the fact that they were unharmed and not injured.
Ratio Decidendi: The Court held that the BSF's decision to dispense with an inquiry was not based on objective facts and was therefore unreasonable. It noted that the petitioners were kept in close arrest for two years, that a SCOI and RoE were conducted, and that several witnesses, including independent witnesses, deposed during these proceedings. The Court also found that the BSF's assertion that it was not reasonably practicable to hold a Force Court was belied by the availability and willing participation of the witnesses in the RoE. The Court concluded that the BSF's prejudice and predisposition to say that the petitioners were somehow culpable was based on the fact that they were unharmed and not injured, and that the BSF had deliberately withheld relevant materials from the petitioners.
Final Decision: The Court quashed the termination orders and directed the Respondents to reinstate all the Petitioners in service from the date of their illegal termination i.e. 08.05.2002. They shall be entitled to all consequential benefits including increments, pay revision and due consideration for promotions in accordance with the applicable rules and policy. However, arrears of salary shall be restricted to 50%. An Order of reinstatement and consequential pay fitment/fixation shall be issued within 8 weeks and amounts shall be paid in 12 weeks. The writ petition is allowed in the above terms.
S. Ravindra Bhat, J.
1. The Petitioners are aggrieved by the respondent Border Security Force's (hereafter "BSF") action dismissing them from its services without holding any inquiry or giving them opportunity to explain their alleged misconduct in accordance with its parent law, the Border Security Force Act, 1968 ("the Act") or the Border Security Force Rules, 1969 (“Rules”) framed thereunder.
2. The facts necessary to decide this case are that all the petitioners were enrolled as constables with BSF at different points of time. The first two Petitioners who had joined BSF in 1986 and 1987 as Constables were promoted subsequently to Head Constable and L. Naik. The third and fourth petitioners had joined the BSF in 1994 and 1997. During the months of January-February 2000, five Companies of BSF were deployed for election duty in the erstwhile State of unified Bihar. All the petitioners were in “F” Company, which was deployed at Chatru Bandu under Police Station Ranka, District Garhwa. The area was at that time pre-dominantly active with Maoist Communist Centre (MCC) and Peoples War Group (PWG) activities and was considered hyper sensitive and militancy prone. It is stated that the layout of the terrain with hilly features and thick forests around provided free movements to militants. The company was accommodated in the building of a Primary School. The polling booths under Police station Ranka were quite far from each other and were located in remote interior villages. It is alleged that the sensitivity of the area and the threat to security forces were reported in newspapers much before the elections.
3. The petitioners contend that on 11.02.2000 the Company Commander Shri Kartar Singh, Deputy Commander briefed the troops and informed that earlier the Company was to conduct patrolling duty in 18 polling booths on the election day i.e. 12.02.2000; however, later the instructions were changed and the company was directed to be deployed at the polling booths. In view of this, one section each of the company was to be deployed at a polling booth. In terms of the prevailing instructions, for the security of polling booths, a platoon consisting of 37 personnel was to be deployed. In this view, deployment of one company was alleged as highly inadequate having regard to the disturbed nature of the area.
4. The first two petitioners belonged to 16th Platoon but were shifted to 18th Platoon Section 7. The other petitioners were already in the18th Platoon. On 11.02.2000 at about 1500 hrs, they were asked to proceed to polling booth no. 232 at Village Kudrum along with Head Constable Hanumant Singh Sodha, Section Commander and others. Three sections left for Bishrampur cluster point, which was a distance of about 25 km. from Company Headquarters, where the section of the petitioners halted at night. On 12.02.2000 at about 0630 hrs the section of BSF comprising 9 personnel (the section was short of two persons as a section ordinarily consists of 11 persons) along with polling staff left for Kudram, Polling Booth No. 232 on foot and reached there at about 0730 hrs. The polling booth was in the building of a school. The petitioners say that the school building and its surrounding areas were thoroughly searched. Constable Didar Singh and Sanjeev Kumar, i.e. LMG No. 1 and 2 were positioned on the roof of the school building and the others were deployed all around the building. The petitioners L. Nk. JhariLal with 7.62 mm SLR and Ct. Umesh Chand with 51 mm Mortar were deployed behind the school building and Constable Nilkanth, L. Nk. Naveen, Ct. Chandra Pal. HC Hanumant Singh Soda took position towards the front of the school building. It is submitted that the school building was located in a depression/valley ringed on all sides by hilly terrain and surrounded by bushes. Besides, there were arhar (dal or lentil) crop of six feet height and wheat crop of 3 feet around the building. Polling started at about 0800 hrs on a slow pace. Head Co
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
