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IN THE HIGH COURT OF DELHI AT NEW DELHI
Suresh Kumar Kait, Neena Bansal Krishna, JJ.
Rajdeep Chowdhary – Appellant
Versus
Union of India & Ors. – Respondents
W.P.(C) 8135 of 2019
Decided On : 14-07-2023
BSF - Promotion Dispute - BSF Act, 1968, NDPS Act, 1985 - Sections 8/221/29/25 NDPS Act, BSF Rules 59/1/5 - The court discussed the disciplinary action against the petitioner under Section 40 of the BSF Act and the issuance of DG's 'displeasure' as well as the Ministry of Home Affairs OM dated 27.03.2015, which states that 'displeasure' is not a penalty enlisted in Rule 11 of the CCS (CCA) Rules, 1965. The court allowed the petition, setting aside the 'displeasure' and directing a review DPC to consider the petitioner's promotion from the date it became due.
Fact of the Case:
The petitioner, an Assistant Company Commandant at 66th Battalion of BSF, was charged under Section 40 of the BSF Act for failure to exercise proper border domination, following an incident of heroin smuggling. Despite being recommended for discharge due to lack of evidence, the petitioner was served with a Show Cause Notice conveying DG's 'displeasure' and was denied promotion from 01.04.2014.
Finding of the Court:
The court found that the petitioner was given a clean chit in the inquiry and that 'displeasure' is not a penalty enlisted in Rule 11 of the CCS (CCA) Rules, 1965. The court allowed the petition, setting aside the 'displeasure' and directing a review DPC to consider the petitioner's promotion from the date it became due.
Issues: The issues revolved around the disciplinary action against the petitioner, the denial of promotion due to DG's 'displeasure', and the applicability of the Ministry of Home Affairs OM dated 27.03.2015.
Ratio Decidendi: The court held that 'displeasure' is not a penalty enlisted in Rule 11 of the CCS (CCA) Rules, 1965, and directed a review DPC to consider the petitioner's promotion from the date it became due.
Final Decision: The court allowed the petition, setting aside the 'displeasure' and directing a review DPC to consider the petitioner's promotion from the date it became due.
JUDGMENT
Suresh Kumar Kait, J.
1. The present petition has been filed by the petitioner seeking quashing of Show Cause Notice dated 12.05.2016 and order dated 22.07.2016 issued by the respondents. In addition, a writ of mandamus directing the respondents to promote the petitioner from the post of Assistant Commandant to the post of Deputy Commandant w.e.f. 01.04.2014 with all consequential benefits, is also sought.
2. Petitioner claims to have been working as Assistant Company Commandant at 66th Battalion of BSF and was also administratively looking two other platoon posts. An FIR bearing No.306/2012, under Sections 8/221/29/25 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) was registered at Jaisalmer, Rajasthan on 08.08.2012 alleging that four civilians in Jaisalmer City were arrested with 8 kg heroin and Rs.4.35 lacs of Indian currency, was smuggled from Pakistan during intervening night of 04/05.08.2012.
3. A staff Court of Inquiry was ordered by Inspector General (IG) (Head Quarter), BSF, Jodhpur to investigate the circumstances in which the heroin crossed the said area. On 06.11.2012, the Presiding Officer completed the Inquiry and submitted his opinion that AOR between BP No.717/l-S to BP N0.717/2-S is the responsibility of BOP SKD Ex.66 Bn BSF from where the suspected crossing of Heroin has been reported, however no specific area has been pointed out by the apprehended persons and no khura has been detected by the BSF; the evidence available was totally circumstantial; the main accused was at large and so, there was nothing to point out negligence or laxity on the part of individuals on duty.
4. In view of the aforesaid inquiry report dated 06.11.2012, the Deputy Inspector General (DIG) SHQ, BSF recommended the IG (HQ) that investigation was complete and no one is to be blamed till the time investigation is complete or the incident is confirmed by the police. Ignoring the report dated 06.11.2012 and recommendation of the DIG (SHQ) dated 10.12.2012, the IG (HQ) on 30.05.2013 recommended action against the petitioner for failure on his part in proper domination of AOR as per BSF Act, 1968. Consequently, the Special Director General (DG) (West), BSF vide communication dated 18.06.2013 recommended that disciplinary action be taken against the petitioner and Sub Inspector Gopal Dass, who was the then senior most platoon officer.
5. Vide order dated 06.08.2013, the disciplinary action was taken and the DIG, BSF on 14.12.2013 recorded evidence against six BSF officials, including the petitioner herein. On the even date, charge-sheet was issued under Section 40 of the BSF Act alleging that the petitioner had failed to exercise proper border domination in AOR as a result whereof, crossing of 8 kg heroin and Rs.4.35 lacs of Indian Currency took place on 04/05.08.2012. The additional evidence was recorded on 19.12.2014.
6. The DIG concerned after analyzing the evidence prepared his remarks dated 09.04.2015 and observed that no evidence emerged to substantiate the charge prepared against the petitioner.
7. The grievance raised by the petitioner in the present petition is that despite the afore-noted remarks dated 09.04.2015, he was served with a Show Cause Notice dated 12.05.2016 by the DIG, whereby he conveyed DG's `displeasure' to the petitioner. Vide letter dated 18.05.2016, petitioner requested the concerned authorities to furnish him copies of Record of Evidence (ROE) and Additional Record of Evidence (ROE) along with other documents to enable him to file reply to the aforesaid show cause notice. In response thereto, the respondents had provided him copy of ROE and Additional ROE, however, copy of remarks/recommendations of senior officers were not supplied to him. Vide his reply dated 05.06.2016, petitioner conveyed the DG that despite there being no implication by him directly or indirectly, ROE was initiated against him and he was subjected to untold miseries and agonies. So, he prayed for an acqui
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.
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 ....
Contempt proceedings require clear evidence of willful disobedience; mere surmises are insufficient.
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.
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