A charged official cannot defend himself by claiming others engaged in similar misconduct; legal authority is required for actions taken in official capacity.

JUDGMENT

[VIA VIDEO CONFERENCING]

Rajiv Sahai Endlaw, J.

CM No.19576/2021 (for exemption)

1. Allowed, subject to just exceptions and as per extant rules.

2. The application is disposed of.

W.P.(C) 6180/2021 & CM No.19575/2021 (for stay)

3. The petitioner, a Deputy Inspector General (DIG) in the respondents Border Security Force (BSF) and under trial by a General Security Force Court (GSFC), has filed this petition seeking mandamus, directing the respondents BSF to summon the defence witnesses as requested by the petitioner in his representation dated 11th June, 2021.

4. It is the case of the petitioner, that (i) the Ministry of Home Affairs (MHA) issued Office Memorandum (OM) dated 21st September, 2016 on the subject of "Deployment of Central Armed Police Forces (CAPFs) Personnel at the Residences of Retired Officers" and issued directions for withdrawal of all such personnel from residences of retired officers; (ii) the aforesaid OM dated 21st September, 2016 has never been complied with and on the date of filing of the petition also, hundreds of CAPFs personnel were deployed at the residences of retired as well as serving officers; (iii) as per the aforesaid OM dated 21st September, 2016, the punishment prescribed for misuse of BSF manpower, is only of monetary recovery from officer concerned; (iv) on 6th November, 2018, a Staff Court of Inquiry (SCOI) was ordered against the petitioner, based on a complaint made by one Constable Bhupender Sharma, alleging misuse of manpower by the petitioner and further alleging that the petitioner got his personal work done from BSF constables; (v) on 21st May, 2021, a chargesheet was served upon the petitioner and recording of evidence was ordered and conducted; (vi) thereafter, the petitioner was directed to be tried by a GSFC; (vii) the petitioner has been charged as under:

"First Charge BSF Act, Sec-40: An act prejudicial to good order & discipline of the force in that he, while as the DIG SHQ BSF, Bhilai, during the period from Jan'2017 to May'2018, had improperly and without authority engaged/deployed BSF personnel for supervising the construction and related work of his personal house at Plot No.3/275, Sector-O, Mansarowar Yojana Lucknow, UP.

Second Charge BSF Act, Sec-40: An act prejudicial to good order & discipline of the force in that he, while as the DIG SHQ BSF, Bhilai, during the period from April'2017 to May'2018, did not pay sum of Rs.69,624/- to No.042551391 Const Bhupender Sharma of 125 Bn BSF, which was incurred for the personal work at his native place Sohalla, Agra as well as the construction site of his personal house at Plot No.3/275, Sector-O, Mansarowar Yojana Lucknow, UP.

Third Charge BSF Act, Sec-38: Having been duly affirmed before a court of inquiry making a statement which he knew to be false in that he, on 05 Jan 2019, at THQ IG BSF (Spl Ops) Chhattisgarh, when examined as a witness before a Staff Court of Inquiry constituted to investigate the complaints made by No.042551391 Const Bhupender Sharma of 125 Bn BSF (now 183 Bn BSF) against him, stated on affirmation that he had not engaged, BSF personnel for the construction of his house at Plot No.3/275, Sector-O, Mansarowar Yojana Lucknow, UP, which he knew that the said statement was false.";

(viii) the GSFC convened on 21st May, 2021 and assembled on 1st June, 2021; (ix) on 7th June, 2021, the petitioner submitted a representation to the Convening Authority, seeking permission to call certain defence witnesses; (x) the Convening Authority, vide order dated 9th June, 2021 directed the petitioner to submit the said request to GSFC; (xi) on 11th June, 2021, the p