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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
VINEET KOTHARI, J.
Dr. Sushil Kumar
V/s
Union of India and ors.
Civil Writ Petition No.1586/2014
Decided on: 27th March, 2014
Border Security Force Act, 1968 - Section 117(2) , 113 , 21 (4), 254 and 255 (5) – Found guilty of charges - Dismissal from service - Challenged - Present petitioner was acquitted of charges No.1 to 3 and was found guilty of charges No.4 and 5 and order of dismissal from service was passed against him - Against this order a pre-confirmation appeal was filed by present petitioner - While said appeal was still pending said Authority namely Director General, HQ, BSF, New Delhi passed a revisional order in exercise of his powers under section 113 of said Act of 1968 and directed fresh court martial to be held for charges No.1 to 3 in which present petitioner was earlier acquitted on and accordingly, a fresh court martial was held against petitioner on and in pursuance of findings of new court martial, an order was again passed imposing sentence of one year of imprisonment with dismissal from service against petitioner – Petitioner vehemently submitted that revisional order could not have been passed by said Authority on while pre-confirmation appeal against previous findings of court martial and order was pending with said Authority and since copy of revisional order has not been supplied to him, he has challenged all proceedings which have taken place subsequently in present case against petitioner including challenging proceedings before revised court martial held against him on and subsequent order of one year imprisonment and dismissal of services passed against him – Held, Justice means justice between both parties - Justice is virtue, by which the Court gives to a man what is his due - Justice is an act of rendering what is right and equitable towards one who has suffered a wrong - Underlying idea is of balance - It means to give to each his right - Therefore, while tempering justice with mercy, Court has to be very conscious that it has to do justice in exact conformity with statutory requirements - Evident from the above referred law, that Court has to interpret a provision giving it a construction agreeable to reason and justice to all parties concerned, avoiding injustice, irrationality and mischievous consequences - Interpretation so made must not produce unworkable and impracticable results or cause unnecessary hardship, serious inconvenience or anomaly - Court also has to keep in mind object of legislation - Court while not interfering in present matter at this stage advisedly, is of the considered opinion that petitioner should be relegated back before respondent No.2 –Director General, HQ, BSF, Delhi with a direction to said Authority to provide an opportunity of personal hearing to present petitioner with his authorized representative or counsel and then pass appropriate speaking order on both of pre-confirmation appeals filed by the petitioner dealing with reasons and contentions put forth by petitioner before said Appellate Authority - If petitioner raises an objection as to jurisdiction of the respondent No.2 –Director General, HQ, BSF himself to decide such pre-confirmation appeals, said authority will decide such question of his own jurisdiction also and pass appropriate orders thereon in accordance with law and if he decides to refer matter to the higher authority or even concerned Ministry he will be free to pass such orders and in that eventuality aforesaid directions will be applicable to such referred authority - Present writ petition is disposed
1. The present writ petition was filed by the petitioner, Dr. Sushil Kumar, the Chief Medical Officer, II Grade serving the respondent – Border Security Force with the following prayers in this Court on 25.2.2014:
“It is, therefore, most respectfully prayed that this writ petition may kindly be allowed with costs and by issuance of an appropriate writ, order or direction, the GSFC re-trial may kindly be quashed and set aside.”
2. Upon issuance of notices, the respondents have filed reply in this Court on 19.3.2014. During the pendency of the present writ petition, certain subsequent developments on record have taken in the present case, which persuade this Court to relegate this matter back to the respondent No.2 – the Director General, Head Quarter, BSF, New Delhi.
3. The charges levelled against the petitioner were as under:
“FIRST CHARGE BSF Act, 1968 U/S 46
COMMITTING A CIVIL OFFENCE THAT IS TO SAY CRIMINAL MISCONDUCT FOR HAVING BEEN, AS A PUBLIC SERVANT, IN POSSESSION OF PECUNIARY RESOURCES DISPROPORTIONATE TO HIS KNOWN SOURCES OF INCOME, FOR WHICH HE CAN NOT SATISFACTORILY ACCOUNT FOR, AN OFFENCE SPECIFIED IN SECTION 13(1)(e) OF THE PREVENTION OF CORRUPTION ACT, 1988, PUNISHABLE U/S 13(2) OF THE SAID ACT.
While serving in 86/143 and 141 Bn. BSF at Sriganganagar (Raj/Handwara) J&K), between 09/01/08 to 29/09/09, got deposited through cash and transfer, Rs.61,56,354/-(Sixty one lakh fifty six thousand three hundred fifty four only), as per details given in Annexure 'A” to the charge sheet, in his Saving bank Account No.30266800681 in SBI, JCT Mills, Sriganganagar, out of which, Rs.37,04,328/-(Thirty seven lakh four thousand three hundred twenty eight only), being his salary, loan etc., Rs.24,52,026/-(Twenty four lakh fifty two thousand twenty six only), was an amount disproportionate to his known sources of income, which he could not satisfactorily account for.
SECOND CHARGE BSF Act, 1968 U/S 46
COMMITTING A CIVIL OFFENCE THAT IS TO SAY CRIMINAL MISCONDUCT, WHILE BEING A PUBLIC SERVANT, ANY OTHER PERSON FOUND IN POSSESSION OF PECUNIARY RESOURCES ON HIS BEHALF DISPROPORTIONATE TO HIS KNOWN SOURCES OF INCOME, FOR WHICH HE CAN NOT SATISFACTORILY ACCOUNT FOR, AN OFFENCE SPECIFIED IN SECTION 13(1)(e) OF THE PREVENTION OF CORRUPTION ACT, 1988, PUNISHABLE U/S 13(2) OF THE SAID ACT.
In that he,
while service in 86/143 and 141 Bn BSF at Sriganganagar (Raj)/ Handwara (J&K), between 09.01.08 to 21/10/09, his wife Dr. Pinky Kumar, held Rs.5,65,528/-(Five lakh sixty five thousand five hundred twenty eight only), as per details given in Annexure 'B' attached to the Charge sheet, in her Saving Bank account No.30266801142 in SBI, JC Mills Sriganganagar, on his behalf, an amount disproportionate to his known sources of income, which he could not satisfactorily account for.
THIRD CHARGE BSF Act, 1968 U/S 41(e)
OBTAINING GRATIFICATION FOR HIMSELF AS A MOTIVE FOR PROCURING ANY ADVANTAGE
In that he,
at officers' mess, Ftr. HQ, BSF, Jodhpur, on 09/07/2008, accepted a sum of Rs.15,000/-from No.02115873 HC/RO Bhanwar Lal Jatrana of 66 Bn BSF, for clearing him in medical examination for SI (CPOs).
FOURTH CHARGE BSF Act, 1968 U/S 46
COMMITTING A CIVIL OFFENCE THAT IS TO SAY, BEING A PUBLIC SERVANT, ACCEPTING FROM ANY PERSON, FOR HIMSELF, ANY GRATIFICATION WHATEVER, OTHER THAN LEGAL REMUNERATION, AS A MOTIVE FOR SHOWING IN THE EXERCISE OF HIS OFFICIAL FUNCTIONS, FAVOUR TO ANY PERSON, PUNISHABLE U/S 7 OF THE PREVENTION OF CORRUPTION ACT, 1988.
In that he,
at officers' mess, Ftr HQ, BSF, Jodhpur, on 12 and 13 July 2008, accepted an amount of Rs.3,000/-and Rs.32,000/-respectively (total-35,000/0_ in two installments, from Sh. Bansi Lal S/O Balu Ji Sharma, Village – Darai, Chittorgarh, Rajasthan, through HC/ RO Bhanwar Lal Jatrana of 66 Bn BSF, for clearing Sh. Balkrishna Kudkiya S/O Sh. Laxman Lal, R/O Begun, Chittorgarh, Rajasthan in Medical examination for SI (CPOs).
FIFTH CHARGE BSF Act, 1968 U/S 46
COMMITTING A CIVIL OFFENCE THAT IS TO SAY, BE
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