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2020 Supreme(Del) 1095
IN THE HIGH COURT OF DELHI AT NEW DELHI
Rajiv Sahai Endlaw, Asha Menon, JJ.
Ashok Vishwakarma - Appellant
Versus
Union Of India & Ors. - Respondent
Writ Petition (Civil) No. 7192 of 2020
Decided On : 29-09-2020
Kushal Choudhary, Advocate, Neela Gokhale, Advocate, Harshal Gupta, Advocate, Shruti Dixit, Advocate, Anju Gupta, Advocate
The court upheld the retirement order based on Rule 26 of the BSF Rules, which empowers the Commandant to retire an enrolled person on grounds of unsuitability.
Headnote:
Plural Marriages - Border Security Force Rules - Rule 26 of the BSF Rules, 1969 - Section 11(2) of the BSF Act - Rule 21 of the Central Civil Services (Conduct) Rules, 1964
Fact of the Case:
The petitioner, a BSF officer, was retired from service without pensionary benefits for allegedly entering into plural marriages. The court considered evidence from multiple women claiming to be his wives and upheld the retirement order based on Rule 26 of the BSF Rules.
Finding of the Court:
The court found that the petitioner had entered into plural marriages during the subsistence of his first marriage, violating Rule 21(1)(2) of the CCS (Conduct) Rules, and upheld the retirement order based on Rule 26 of the BSF Rules.
Issues: The issues included the validity of the retirement order, the applicability of Rule 26 of the BSF Rules, and the adherence to principles of natural justice.
Ratio Decidendi: The court held that the retirement order was valid under Rule 26 of the BSF Rules, as the Commandant was empowered to retire an enrolled person on grounds of unsuitability, and the petitioner's admission to contracting plural marriages was considered as evidence.
Final Decision: The petition was dismissed, and the petitioner was granted the liberty to file a statutory petition under Rule 28A of the BSF Rules.
JUDGMENT
Asha Menon, J. - C.M. Appln. No.24314/2020 (Exemption from filing certified copy of documents & orders, documents and annexures)
1. Allowed, subject to just exceptions and as per extant rules.
2. The application is disposed of.
W.P. (C) 7192/2020
3. The petitioner has filed the instant petition against the order dated 6th March, 2019 passed by the office of the Commandant, 38 Bn BSF, Roopnagar, Coochbehar, West Bengal, by virtue of which, the petitioner was retired from service w.e.f. the date of the order on the grounds of unsuitability under the provision of Rule 26 of the Border Security Force Rules, 1969 (BSF Rules, 1969) without pensionary benefits for having allegedly entered into plural marriages.
4. The facts as set out in the petition are that the petitioner had enrolled in the Border Security Force (BSF) on 29th June, 2010. His marriage was solemnized with one Ms. Rachana Vishwakarma on 25th April, 2012 as per Hindu rituals. A daughter was born to them in 2013.
5. The trouble started for the petitioner when a letter dated 24th August, 2018 was received from the Additional Family Judge/ADJ Fast Track Court No.2, Azamgarh directing the Director General (DG), BSF to recover Rs.7500/- per month w.e.f. 12th April, 2013 from the petitioner towards maintenance payable to Ms.Rachna Vishwakarma. When the office perused the service record of the petitioner, it was found that one Mrs. Bulbul was named as his wife in the nomination form. Later on 15th January, 2016, one Smt. Neha Vishwakarma addressed a letter to the Prabandhak Adhikari, Seema Suraksha Bal, 140 Bn BSF, HQ, South Bengal in which she claimed to have entered into a marriage with the petitioner on 10th June, 2013 and that a child had been born to them and alleging that the petitioner has not been taking care of them for over one year. She requested for a direction to be issued to the petitioner for grant of maintenance of Rs.15,000/- per month for her survival and survival of the child. Since the petitioner was at that time serving under the 82 Bn of the BSF, this letter was transferred to the Commandant, 82 Bn BSF for necessary action and the office of the Commandant issued a letter dated 6th February, 2016 to the petitioner seeking his comments on this complaint. Subsequently, Smt. Neha Rajak filed a petition under Section 23(2) of the Protection of Women from Domestic Violence Act, 2005 on which the court of the Judicial Magistrate, 6th Court, Alipore directed the payment of maintenance to her to the tune of Rs.13,000/- per month to be deducted from the salary of the petitioner.
6. When these letters were received, a summary of the case was forwarded to Ftr HQ BSF, Guwahati on 23rd September, 2018. On the basis of the claims of the two ladies and the court orders and due to the discrepancy in the service record, a Court of Inquiry (COI) was conducted by the 38 Bn BSF vide O/No.Estt/COI/Payment-allowances/ 38Bn/18/15881-85 dated 7 th October, 2018 against the petitioner on the charge of having contracted plural marriages. The COI concluded that the petitioner had contracted plural marriages and recommended administrative action to be taken. On the basis of the findings of the COI, the Office of Commandant, 38 Bn BSF, Roopnagar, Coochbehar (WB) issued a Show Cause Notice to the petitioner which he replied and finding the reply unsatisfactory it was directed by the impugned order dated 6 th March, 2019 that the petitioner''s name be struck off from the Force and he be retired from service without any pensionary benefits.
7. The learned counsel for the petitioner Mr.Kushal Choudhary vehemently argued that the action taken against the petitioner was against all provisions of law and principles of natural justice. It was submitted that only the Security Force Court (SFC) could impose a punishment of dismissal from service as provided under Section 48 of the Border Security Force Act, 1968 (BSF Act) as it was a major punishment. Only other punishments could be i
