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IN THE HIGH COURT OF DELHI
Rajiv Sahai Endlaw, Amit Bansal, JJ.
Rajesh Kumar Tomar (Commandant/GD) - Appellant
Versus
Union of India - Respondent
W.P.(C) 6927 of 2021
Decided On : 23-07-2021
Important Points
Subject
Administrative Law - Military Law
Act Referred
INDO-TIBETAN BORDER POLICE FORCE RULES: R.116, R.67, R.68, R.73, R.74, R.75, R.76, R.77, R.78, R.79, R.80, R.81, R.82, R.83, R.84, R.85, R.86, R.87, R.88, R.89, R.90, R.91, R.92, R.93, R.94, R.95, R.96, R.97
Headnote
(B) Jurisdiction - The GSFC is permitted to resolve jurisdictional objections before an arraignment is considered complete, allowing for substitution of members to maintain a quorum. (Paras 11-21)
Facts of the case:
Petitioner sought to challenge the legality of GSFC orders on grounds of quorum being affected by member disqualification, claiming proceedings were unlawful.
Findings of Court:
The Court endorsed the action of the Convening Authority in substituting the disqualified member and concluded no violation of rules occurred, ruling that the petitioner did not demonstrate any prejudice.
Issues: The core issue addressed was the interpretation of 'arraignment' under the ITBP Rules and the timing for substituting members in the GSFC.
Ratio Decidendi: The Court held that arraignment under the ITBP Rules includes both the reading of charges and the plea, confirming that substitution of a member is valid prior to that stage.
Result: Petition dismissed.
| Table of Content |
|---|
| 1. petitioner challenges gsfc proceedings. (Para 3) |
| 2. gsfc composition and trial process details. (Para 5) |
| 3. substitution of disqualified member in gsfc. (Para 6 , 10) |
| 4. timeline and impact of arraignment. (Para 8) |
| 5. rules governing addition of members to gsfc. (Para 14 , 16) |
| 6. petition is dismissed. (Para 24) |
JUDGMENT
[VIA VIDEO CONFERENCING]
Rajiv Sahai Endlaw, J.
CM 21873/2021 (for exemption)
1. Allowed, subject to just exceptions and as per extant rules.
2. The application is disposed of.
W.P.(C) 6927/2021 & CM 21872/2021 (for interim direction).
3. The petitioner, a Commandant (GD) in the respondents Indo-Tibetan Border Police (ITBP) and against whom, on 28th October, 2020 a General Security Force Court (GSFC) has been convened, has filed this petition, (i) impugning the order dated 12th April, 2021 of the Director General, ITBP and the order dated 16th February, 2021 of the Convening Authority of the GSFC; and, (ii) for declaration, that the proceedings conducted against the petitioner in pursuance to the convening order dated 28th October, 2020 of the Convening Authority, are unlawful for all practical purposes.
4. We have heard the counsel for the petitioner.
5. The counsel for the petitioner has argued, that (i) the GSFC was constituted vide order dated 28th October, 2020 and assembled on 18th November, 2020; (ii) as per Section 80 of the ITBP Act, 1992, GSFC has to have minimum five members and as constituted, had five members; (iii) the trial of the petitioner before the GSFC commenced with effect from 2nd December, 2020; (iv) the petitioner was "arraigned" under Rule 73, on 30th December, 2020; (v) the petitioner, before pleading to the charge, elected to submit statutory plea of jurisdiction under Rule 74 of the ITBP Rules, 1994, that GSFC had no jurisdiction to try the petitioner; (vi) the GSFC recorded evidence of the petitioner on the said plea of the petitioner and the prosecutor also adduced evidence in reply; (vii) thus, the trial continued post "arraignment" of the petitioner; (viii) on 11th February, 2021, GSFC found that one of its five members was disqualified from being a member of the GSFC; with such disqualification, GSFC fell short of the stipulated coram of five, under Section 80 of the ITBP Act; (ix) GSFC, on 11th February, 2021, wrote to the Convening Authority that one of the members of the GSFC suffered from disqualification to be a member of the GSFC and without him, the GSFC had fallen short of the coram stipulated in Section 80 of the ITBP Act; the GSFC thus, on 11st February, 2021 adjourned the proceedings sine die and referred the matter to the Convening Authority for passing appropriate orders; (x) the Convening Authority, vide impugned order dated 16th February, 2021, inter alia ordered:
