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IN THE HIGH COURT OF DELHI AT NEW DELHI
Suresh Kumar Kait, Neena Bansal Krishna, JJ.
Rajesh Kumar P V – Appellant
Versus
Union of India & Anr. – Respondents
W.P.(C) 1099 of 2020 &CM APPL. 23338 of 2022
Decided On : 04-07-2023
Double Jeopardy - BSF Officer - Sections 35 and 40 of the BSF Act, 1968 - The court quashed the second chargesheet and order of severe reprimand, holding that the petitioner cannot be tried twice for the same charges, and the punishment of severe reprimand cannot be a basis to deny promotion.
Fact of the Case:
The petitioner, a BSF officer, was charged under Sections 35 and 40 of the BSF Act, 1968. He was exonerated in the first inquiry but was later charged again for the same offenses and punished with severe reprimand, leading to denial of promotion for multiple years.
Finding of the Court:
The court found that the second inquiry was illegal and arbitrary, and the punishment of severe reprimand cannot be a reason to deny promotion. It directed a review DPC to be commenced for the petitioner and granted seniority from the year 2016-17 with all consequential benefits if found suitable.
Issues: The issues involved were the application of double jeopardy, the legality of the second inquiry, and the use of severe reprimand as a basis for denying promotion.
Ratio Decidendi: The court held that the second inquiry on the same charges was a violation of double jeopardy and that the punishment of severe reprimand cannot be a reason to deny promotion.
Final Decision: The court quashed the second chargesheet and order of severe reprimand, directed a review DPC for the petitioner, and granted seniority from the year 2016-17 with all consequential benefits if found suitable.
JUDGMENT
Neena Bansal Krishna, J.
1. The petitioner has filed the present petition under Article 226 of the Constitution of India to issue Writ of Certiorari to set aside the Chargesheet dated 19.08.2017, Order of Sentence of "Severe Reprimand" dated 21.08.2017, and also issue Writ of Mandamus to direct the respondent No. 1 to notionally promote him to the Rank of AC/Elect. against the vacancy year 2016-17 or 2017-18 or 2018-19 along with all consequential benefits and seniority.
2. The facts in brief as narrated in the present petition are that the petitioner is presently working as Inspector/Junior Engineer (Electrical) with the Border Security Force (hereinafter referred to as "BSF") and is currently posted at STS-BSF, Tigri, New Delhi. While working as Junior Engineer, a Summary Trial was initiated against him by DIG, Barmar and he was served with Chargesheet dated 14.10.2016 and was charged with two charges under Border Security Force Act 1968 (hereinafter referred to as the "Act, 1968"), namely: Section 35(a) for knowingly making a false statement in a document signed by him; and Section 40 for committing an omission prejudicial to good order and discipline of the force.
3. The DIG BSF, Barmar/respondent No. 2 directed preparation of the Record of Evidence (ROE) which was completed on 10.12.2016 after which the petitioner was absolved from all the charges on 31.12.2016 by DIG BSF, Barmar on the ground that no evidence was found to substantiate the charges levelled against him. Consequently, vide Letter dated 02.01.2017 STS, BSF, New Delhi, the service record of the petitioner was returned to Departmental Promotion Committee (hereinafter referred to as "DPC") for consideration for promotion to the Rank of Assistant Commandant (Elec.) for the vacancy year 2016-2017.
4. However, after about eight months, the Inquiry was re-initiated against him for the same above-mentioned charges by the same DIG who had conducted the first Chargesheet, despite having been already exonerated, as the Charges had been found to be not substantiated by any evidence. The second Chargesheet was issued on 19.08.2017 which contained the same charges verbatim as mentioned in the first Chargesheet dated 14.10.2016. However, no ROE was prepared after issuance of second Chargesheet and the ROE prepared in the first Chargesheet was used in the second Chargesheet.
5. The petitioner, on directions filed Written Submissions in his defence dated 21.08.2017. He was held guilty of both the Charges and sentenced to "severe reprimand" on 21.08.2017, the copy of which is not available with the petitioner.
6. Thereafter, the petitioner filed a Representation dated 31.08.2017 through proper channel, which was rejected on 08.01.2018.
7. Aggrieved by the said rejection order, petitioner filed the Statutory Petition dated 24.02.2018 for setting aside the finding of the Summary Trial and the sentence of "severe reprimand" and the Rejection Order. This Statutory Petition was treated as Petition under Section 117 of the Act, 1968 vide Inter Office Note dated 26.02.2018. However, no decision was conveyed to the petition on his Statutory Petition leading to the filing of another Statutory Petition dated 28.09.2018. After 18 months, the respondent No. 1 rejected the said application/petition vide Order dated 06.11.2019. The Rejection has been challenged on the ground that the respondent No.1 has failed to appreciate and deal with the grounds taken/raised in the Statutory Petitions and the Order has been passed in an arbitrary manner without affording any opportunity to the petitioner of being heard.
8. The petitioner's grievance is that the respondent No.1 failed to appreciate that the petitioner was not involved at any stage of the work of "Renovation of El of 06 Nos Old Barracks (03 Nos old location & 03 Nos in firing range) at 99 Bn BSF (now 63 Bn BSF), Jalipa under SHQ BSF Barmer". It was Shri R.C. Yadav, AC/AE(Elect.) and SI/JE (Elect.) Dharamveer Singh who we
The principle of double jeopardy and the inadmissibility of severe reprimand as a basis for denying promotion were established in the judgment.
Departmental proceedings must adhere to principles of natural justice, and acquittal in criminal cases does not preclude disciplinary action but requires proper evidence examination.
The court affirmed the principle that judicial review of administrative actions in disciplinary processes is limited to procedural correctness, not evidential review, and mandated reconsideration of ....
The main legal point established in the judgment is the requirement for following the prescribed procedure, including issuing a show cause notice and conducting a departmental enquiry, before imposin....
The court emphasized the importance of ensuring fair and legal disciplinary proceedings and held that disciplinary actions must be based on valid grounds and not be initiated for collateral purposes.
The main legal point established in the judgment is that 'displeasure' is not a penalty enlisted in Rule 11 of the CCS (CCA) Rules, 1965, and cannot be used to deny promotion.
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