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Gauhati High Court · body

2008 DIGILAW 203 (GAU)

Pravat Chandra Kumar v. Union of India

2008-03-10

BIPLAB KUMAR SHARMA

body2008
JUDGMENT B.K. Sharma, J. 1. By means of this writ petition, the petitioner has challenged the proceeding initiated against him under Rule 20 of the Border Security Force Rules, 1969. But it stated here that the petitioner has since retired from service as Deputy Commandant of B.S.F. on attaining the age of superannuation on 31.3.2005. 2. The petitioner was posted at Doda in the State of Jammu & Kashmir from 20.9.1995 to 20.2.1997. During the said period, he was the Coy Commander ('B' Coy) of 56 Battalion, B.S.F. The petitioner was the accused of the charge relating to murder punishable under Section 302 read with Section 34 I.P.C. He was also charged under Section 34 I.P.C. read with Section 34 I.P.C. for wrongful confinement. Both the charges were in respect of death and wrongful confinement of one Bashir Ahmed, a civilian. 3. After the aforesaid charge, a General Security Forces Court (G.S.F.C.) proceeding was initiated against the petitioner and in the said proceeding, the first charge of murder was held not established, while the second charge of wrongful confinement was held established. The petitioner was proposed with the penalty of forfeiture of one year service for the purpose of promotion. However, the authority, which was to confirm the sentence, did not agree to the proposal and remanded the matter back to the G.S.F. Court for a fresh consideration. However, the G.S.F.C. adhered to the earlier finding and the sentence. 4. After the aforesaid development, the petitioner was issued with Annexure-6 notice dated 20/22.3.2004 for initiation of action under Rule 20 of the B.S.F. Rules, 1969. In the notice, it was indicated that the finding of the Court on the first charge was against the weight of evidence and the sentence awarded in respect of second charge of wrongful confinement was grossly inadequate and did not commensurate with the gravity of the charge. For a ready reference, the operative portion of the show cause notice is quoted below: Whereas the finding of the Court on the first charge is against the weight of evidence and the sentence awarded for wrongful confinement on the second charge is grossly inadequate and not commensurate with the gravity of the charge on which you had been convicted and whereas the confirming authority did not confirm the finding of the first charge and sentence awarded to you on account of second charge; and 8. Whereas, after careful consideration of the facts and circumstances of the case and the evidence available in GSFC proceedings, the DG is satisfied that a fresh trial by a GSFC for the said offences is inexpedient but is of the opinion that your further retention in service is undesirable. He has, therefore, proposed to terminate your service by way of retirement by invoking Rule 20 of the BSF Rules 1969 (As amended) with pensionary benefits. 9. Now, therefore, I am directed to call upon you to submit in writing your explanation and defence against the proposed action within thirty days from the date of receipt of this notice. If no reply to the show cause notice is received within the stipulated period, it may be presumed that you have no explanation and or defence to urge in the matter and in that case DG may proceed further and submit your case to the Central Government (MHA) recommending the termination of your service by way of retirement under Rule 20 of BSF Rules 1969 (as amended). 5. The petitioner, in response to the said show cause notice, submitted his reply by Annexure-7 letter dated 25.10.2004. On receipt of the said reply, the authority issued further notice once again under Rule 20 of the aforesaid Rules proposing termination of services of the petitioner by way of retirement by granting gratuity at a rate not less than 2/3 of the admissible amount under Rule 40 of the CCS (Pension) Rules, 1972. Be it stated here that by the first show cause notice, the proposal was for the penalty of termination of service by way of retirement with pensionary benefits. 6. Being aggrieved by successive issuance of the show cause notices, one after another, with proposal of penalty of forfeiture of one year service for promotion, the retirement with pensionary benefits and retirement with gratuity at a rate not less than 2/3 of the admissible amount respectively, the petitioner approached this Court by filing the instant writ petition. The writ petition was entertained by order dated 25.2.2005 and it was provided that the impugned notice would remain stayed. 7. After initiation of the writ proceeding and stay of the impugned notice, the petitioner retired from service on attaining the age of superannuation on 31.3.2005. Thus, really speaking, after his retirement, he cannot be imposed with penalty of termination of services and/or compulsory retirement. 8. 7. After initiation of the writ proceeding and stay of the impugned notice, the petitioner retired from service on attaining the age of superannuation on 31.3.2005. Thus, really speaking, after his retirement, he cannot be imposed with penalty of termination of services and/or compulsory retirement. 8. I have heard Mr. M. Dutta, learned Counsel for the petitioner as well as Mr. H. Rahman, learned Assistant Solicitor General of India appearing for the respondents. 9. Mr. Dutta submits that the entire action on the part of the respondents being founded on malafide and colourable exercise of power is not sustainable in law. He submits that the successive show cause notices with renewed proposal of punishment speak volumes of malafide action on the part of the respondents. According to him, Rule 20 of the Rules could not have been invoked to deny full pension to the petitioner upon imposing him penalty of retirement. He further submits that Rule 20 of the Rules could not have been invoked without first dispensing with the G.S.F.C. proceeding. He has placed reliance on the decision of the Apex Court as reported in [2001] 2 SCR 1127 (Union of India and Ors. v. Harjeet Singh Sandhu). 10. Countering the above arguments of Mr. Dutta, learned Counsel for the petitioner, Mr. Rahman, learned A.S.G of India, submits that having regard to the gravity of the offence committed by the petitioner, the authority formed an opinion on the basis of the evidences on record that the proposed penalty was not cormmensurating to the gravity of the offence committed. He further submits that the authority rightly invoked the provisions of Rule 20 of the Rules. As regards the present situation, in which the petitioner has already retired from service and the plea of the petitioner that the impugned show cause notices, by efflux of time, has spent their force, he submits that since the offence of the petitioner has been established, it is open to the authority to impose suitable punishment as per law. 11. I have given my anxious consideration to the submissions made by the learned Counsel for the parties and the materials on record. 12. At the first instance, the petitioner was proposed with the penalty of forfeiture of one year service for promotion. Such an action was proposed after having held the petitioner guilty of the second charge i.e. wrongful confinement. I have given my anxious consideration to the submissions made by the learned Counsel for the parties and the materials on record. 12. At the first instance, the petitioner was proposed with the penalty of forfeiture of one year service for promotion. Such an action was proposed after having held the petitioner guilty of the second charge i.e. wrongful confinement. Thereafter, the matter was again reviewed and was sent back to the G.S.F.C. for a fresh decision. The G.S.F.C. once again reiterated its earlier stand. Situated thus, the authority issued successive show cause notices, firstly proposing the penalty of retirement with pensionary benefits and thereafter, retirement with retirement gratuity. 13. The impugned show cause notice dated 20/22.3.2004 (Annexure-6 to the writ petition) speaks of the decision of the Director General that a fresh trial by a G.S.F.C. for the offence was inexpedient. It also speaks of formation of opinion that the petitioner's further retention in service was undesirable. It was on these two grounds the petitioner was issued with Rule 20 notice proposing to impose penalty of termination of service by way of retirement with pensionary benefits. 14. After the petitioner submitted his reply, the second show cause notice dated 20/24.1.2005 (Annexure-8 to the writ petition) was issued revising the proposal to that of retirement under Rule 20 by granting gratuity at a rate not less than 2/3rd of the admissible amount under Rule 40 of the CCS (Pension) Rules, 1972. 15. Rule 20 of the Rules provides for termination of service of officers of the Central Government on account of misconduct. When after considering the reports on an officer's misconduct, the Central Government or the Director General, as the case may be, is satisfied that the trial of the officer by a Security Force Court is inexpedient or impracticable, but is of opinion that the further retention of the said officer in the service is undesirable, the Director General shall so inform the officer together with particulars of allegation and report of investigation (including the statements of witnesses, if any, recorded and copies of documents etc. intended to be used against him) in cases where allegations have been investigated and he shall be called upon to submit, in writing, his explanation and defence. 16. intended to be used against him) in cases where allegations have been investigated and he shall be called upon to submit, in writing, his explanation and defence. 16. Rule 20(4) of the Rules authorizes the Director General to make recommendation to the Central Government under Sub-rule (2) or Sub-rule (3) of Rule 20 of the Rules. Such recommendation can be for termination of service of the officer. The recommendation is to indicate as to whether such termination should be by way of (a) dismissal from service; or (b) removal from service; (c) retirement from service; or (d) call upon to resign. 17. Sub-rule (5) of Rule 20 of the Rules provides that the Central Government, after considering the reports and the officer's defence, if any, or the judgment of the criminal Court, as the case may be, and the recommendation of the Director General, may remove or dismiss the officer with or without pension or retire or get his resignation from service and on his refusing to do so, the officer may be compulsorily retired or removed from service with pension or gratuity, if any, admissible to him. 18. Rule 20(5) of the Rules empowers the Central Government, on the recommendation of the Director General, to remove or dismiss the officer with or without pension or retire or get his resignation from service. The question of compulsory retirement or removal from service with pension or gratuity would arise only on refusal of the officer to accept the proposal for resignation from service. In case of removal or dismissal, the officer may be entitled to pension. 19. In the instant case, the petitioner was first proposed with the penalty of forfeiture of one year of service for promotion. In the affidavit-in-reply filed by the petitioner, a gradation List of Group-A (GD) Officers as on 1st January, 2004 published vide letter dated 5.1.2004 has been annexed. In the Gradation List, the name of the petitioner appears at Sl. No. 619 and against his name, it has been shown that he was imposed with penalty of forfeiture of one year of service for promotion. Thus, the petitioner has contended that since the first penalty proposed was already imposed on the petitioner, there could not have been any occasion for the authority to issue the impugned notices successively. 20. No. 619 and against his name, it has been shown that he was imposed with penalty of forfeiture of one year of service for promotion. Thus, the petitioner has contended that since the first penalty proposed was already imposed on the petitioner, there could not have been any occasion for the authority to issue the impugned notices successively. 20. As noticed above, the petitioner has since retired from service on attaining the age of superannuation. If that be so, there is no question of terminating his service either by way of dismissal or removal. There is also no question of his compulsory retirement he having retired from service after rendering his normal period of service. 21. Apart from the above, the above-quoted portion of the impugned show cause notices will go to show that the entire proceeding under Rule 20 of the Rules was contemplated on ground of inexpediency to hold a fresh G.S.F.C. proceeding and when the penalty proposed was under process of confirmation. The authority only for the purpose of enhancing the penalty, formed an opinion that it was inexpedient to hold a fresh G.S.F.C. proceeding. It is in this connection, Mr. Dutta, learned Counsel for the petitioner submits that without first annulling the G.S.F.C. proceeding, the authority could not have invoked Rule 20 of the Rules. Further, as pointed out by the Apex Court in the Harjeet Singh Sandhu (supra), the disciplinary enquiry is not expected to be dispensed with lightly or arbitrarily or out of ulterior motive or merely to avoid the holding of an enquiry or because the department's case against the Government servant is weak and must fail. It has also been pointed out that the satisfaction of the authority is not immune from judicial review of administrative decisions. 22. In the instant case, the authority proposed to impose punishment other than forfeiture of one year service for promotion on the ground that it was inexpedient to hold a fresh G.S.F.C. Thus, the action under Rule 20 of the Rules was taken only for the purpose of enhancing the penalty. No valid reason other than the reason assigned in the above quoted portion of the impugned notice is discernible. 23. The show cause notice was issued solely with a view to impose harsher penalty than the one earlier proposed. No valid reason other than the reason assigned in the above quoted portion of the impugned notice is discernible. 23. The show cause notice was issued solely with a view to impose harsher penalty than the one earlier proposed. I am of the considered opinion, such a ground cannot vest power on the authority to invoke Rule 20 of the Rules so as to hold that it was inexpedient to hold a fresh G.S.F.C. 24. In view of the above, this writ petition succeeds by way of setting aside and quashing the impugned show cause notice. The authority shall now proceed with the matter as per the earlier proposal of punishment of forfeiture of one year service for promotion, which in fact, they have already acted upon, as reflected in the aforesaid Gradation List published by letter dated 5.1.2004. Writ petition is allowed to the extent indicated above. Petition allowed.