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2021 DIGILAW 700 (JK)

Rakesh Razdan v. Union of India

2021-12-31

SANJAY DHAR

body2021
JUDGMENT : Sanjay Dhar, J.-Petitioner has challenged letter No.VI-1122/PROV-SAW/SCOI /77BN/NBF/99431-37 dated 13th January, 1999, where-under displeasure has been awarded to him. Petitioner has also challenged letter No.C-II/ACR/PL/NBF/PA/98/383-85 dated 24.07.1998, whereby adverse remarks for the period ending 31.03.1997 have been communicated to him. He has further challenged the order of rejection of his representation filed against the adverse remarks as also the order whereunder it has been conveyed to him that he has been excluded from consideration for promotion to the post of Deputy Commandant. 2. As per the case of the petitioner, he was appointed as Assistant Commandant in BSF in the year 1993 and he joined the force as such on 2nd July, 1993. In the year 1995, petitioner was posed in 77 Bn. of BSF located at Srinagar, where he joined in April, 1996. 3. It is further averred in the petition that a Staff Court of Enquiry was ordered by respondent No.3 for enquiring into the circumstances under which 7.62mm SLR supplied to Constable Ranjeet Ekka of “C” Coy 77 Bn BSF along with one magazine filled with rounds of BDR went missing at Leeward Hotel inside Dal Lake on 25.03.1997 and to fix responsibility on the personnel/person for the loss of rifle. An additional Court of Enquiry was again ordered by respondent No.5 into the same incident. 4. On 27.02.1998, petitioner received a show cause notice, whereunder he was asked to show cause against the proposed action of issuance of IG’s displeasure. The show cause notice was bearing reference to the incident of loss of rifle regarding which Staff Court of Enquiry and Additional Court of Enquiry had been conducted. Another show cause notice dated 25th April, 1998, was again received by the petitioner, whereby he was asked to show cause against the allegation relating to loss of rifle by Constable Ranjeet Ekka. Petitioner submitted his reply to the show cause notice on 27th July, 1998. Since no notice under Rule 173(8) of BSF Rules had been issued to the petitioner and he had no knowledge about the findings of the Staff Court of Enquiry, as such, he sought copies of the proceedings of the Staff Court of Enquiry and Additional Court of Enquiry, which were supplied to him. Thereafter petitioner again filed a reply to the show cause notice vide his reply dated 05.12.1998. Thereafter petitioner again filed a reply to the show cause notice vide his reply dated 05.12.1998. Ultimately, respondent No.3 vide his letter dated 13.1.1999, informed the petitioner that he had been awarded IG’s displeasure. 5. It is contended that on the one hand the loss of weapon by Constable Ranjeet Ekka was made subject of Staff Court of Enquiry and Additional Court of Enquiry and the petitioner was issued IG’s displeasure but at the same time the petitioner received communication dated 24.07.1998, conveying him the substance of adverse remarks recorded in his Annual Confidential Reports (ACRs) ending 31st March, 1997. Petitioner filed a representation against communication dated 24.07.1998, requesting respondent No.3 to review the adverse remarks recoded in his ACRs. The representation of the petitioner was decided by respondent No.3 vide his order dated 28th December, 1998 and the representation was rejected. Against the aforesaid order, petitioner filed an appeal before respondent No.1 which too was rejected vide order dated 25th June, 2001. 6. After the aforesaid events, petitioner was overlooked by the Departmental Promotion Committee and his juniors were promoted while ignoring the petitioner. 7. Petitioner has challenged the impugned communications/order on the grounds that one the one hand nothing came out against the petitioner from the findings of Staff Court of Enquiry and Additional Court of Enquiry but on the other, he has been conveyed displeasure in respect of an event which was subject matter of the aforesaid enquiry; that ACRs of the petitioner prior to 1996-97 were excellent and he had also been awarded IGs commendation certificate, as such, it was not open to the respondents to award displeasure and record adverse remarks in his Confidential Reports and that impugned action of the respondents is arbitrary and illegal and, as such, liable to be quashed. 8. The petition has been resisted by respondents by filing a reply thereto. In their reply, respondents have submitted that petitioner assumed the charge of Company Commander ‘C’ Coy 77 Bn. BSF with effect from 28th June, 1995 to 2nd April, 1997. The unit was deployed on counter insurgency role having its TAC headquarter at Nishat Bagh, Srinagar and C. Coy of 77 Bn BSF was deployed at Leeward Hotel, Batapora No.2 whereas Company Headquarter was located at Metro Hotel. It is averred that Constable Ranjeet Ekka of V. Coy 77 Bn. The unit was deployed on counter insurgency role having its TAC headquarter at Nishat Bagh, Srinagar and C. Coy of 77 Bn BSF was deployed at Leeward Hotel, Batapora No.2 whereas Company Headquarter was located at Metro Hotel. It is averred that Constable Ranjeet Ekka of V. Coy 77 Bn. BSF while on sentry duty at Leeward Hotel post, lost his personal weapon SLR butt No.235 body No.DJ-3952 along with magazine filled with 20 rounds of 7.62 mm BDR while he was asleep. The occurrence is stated to have taken place during the intervening night of 24/25 March, 1997. It is averred that on 24th March, 1997, all the post personnel of Leeward Hotel post consumed liquor while celebrating festival of Holi. The enquiry conducted into the incident revealed that there was frequent entry of civilians in the Leeward Hotel post and while Constable Ranjeet Ekka was on sentry duty from 2200 hours to 0100 hours, he fell asleep on a chair near the “Bhukhari” being under the influence of liquor, as a consequence whereof, his rifle was stolen by some unknown person. The enquiry further revealed that Guard Commander, Naik M. G. Balan, had failed to ensure proper camp security while as Sub Inspector Basudev Singh did not check arms of the troops thereby violating the rules and regulations of internal security duty. The enquiry further revealed that the petitioner as C. Coy Commander was also present on spot on 24th March, 1997 and he failed to exercise his command and control over his troops posted at Leeward Hotel post, as a result of which a recommendation was made for awarding IG’s displeasure which was, accordingly, awarded to him in terms of letter dated 13.01.1999 and as a consequence of it, adverse remarks pertaining to an incident which took place on Holi i.e. on 24th March, 1997, were recorded in his ACRs for the year 1996-1997. 9. The respondents have defended their action on the ground that petitioner having failed to exercise proper command and control over his troops posted at Leeward Hotel post deserved to be awarded displeasure by the Inspector General concerned. It is further contended that all the representations and appeals made by the petitioner against the impugned orders were considered by the competent authority and the same were found to be without any merit. 10. It is further contended that all the representations and appeals made by the petitioner against the impugned orders were considered by the competent authority and the same were found to be without any merit. 10. Petitioner has also filed a rejoinder to the reply filed by the respondents reiterating the contentions and assertions made by him in the writ petition. In support of his contentions, learned counsel for the petitioner has relied upon following judgments: (I) Narender Prakash Kohli vs. UOI & Ors., (WP(C) No.2968/2014 decided on May 08, 2015) (II) Badri Nath vs. Government of T. N. and others, AIR 2000 SC 3243 (III) Smt. S. R. Venkataram vs. Union of India and others, AIR 1979 SC 49 (IV) Dr. (Mrs.) Sumati P. Shere vs. Union of India and others, (Civil Appeal No.2192 of 1989 decided on 03.04.1989) 11. I have heard learned counsel for the parties and perused the material on record. 12. Learned counsel appearing for the petitioners has challenged the action of respondents primarily on two grounds, one that there was nothing adverse found in the Staff Court of Enquiry and Additional Court of Enquiry against the petitioner, therefore, there was no basis for the respondents to award displeasure against the petitioner and to record adverse remarks in his ACRs for the relevant year. The second ground which has been urged by the learned senior counsel appearing for the petitioner is that IG, BSF, is not the competent authority to award displeasure against an officer of the rank of Assistant Commandant. 13. So far as the first contention of the petitioner is concerned, it is true that neither in the Staff Court of Enquiry nor in the Additional Court of Enquiry, any finding has been recorded against the conduct of the petitioner. Learned counsel for the parties have taken me through the statements of witnesses recording during the enquiry proceedings as also the findings of the Staff Court of Enquiry and Additional Court of Enquiry. From a perusal of the same it appears that the submission of the petitioner that there is no finding in these reports as against the conduct of petitioner is well founded. From a perusal of the same it appears that the submission of the petitioner that there is no finding in these reports as against the conduct of petitioner is well founded. However, perusal of the statements of the witnesses recorded during the course of the proceedings of Court of Enquires, reveals that it has come to the fore that on 24.03.1997, petitioner had visited the post at Leeward Hotel to celebrate Holy with the Jawans. It has also come in the statements of the witnesses that petitioner extended instructions to provide one peg of rum to each of the Jawans. There are also statements of witnesses on the record of the enquiry file which go on to show that civilians would frequently visit the post and mix up with the Jawans. 14. So far as distribution of rum to the Jawans is concerned, learned senior counsel appearing for the petitioner has contended that as per the Rules and instructions in vogue, Jawans of BSF are entitled to two ounces of rum/liquor thrice a week on payment basis before meals. Besides this, Commandant/Head of Office can issue additional rum to the troops on festivals or on raising day etc. On this count, it has been urged by the learned senior counsel of petitioner that even if it is assumed that petitioner had instructed issuance of one peg of rum to each of the Jawans, there was no violation of any rule. In fact, petitioner had only adhered to the guidelines on the subject. 15. It is true that the guidelines/instructions do authorize a Commandant/Head of Office to issue rum/liquor to the troops on the occasion of festivals like Holi but the instructions clearly indicate that there can be restrictions on issue of liquor to the troops deployed on sensitive duties. It is one thing to issue liquor to the troops while they are in barracks but it is quite another thing to issue liquor to the troops while they are on duty. An officer of the level of Assistant Commandant is expected to keep this distinction in mind while issuing rum/liquor to the troops, particularly when the troops are on duty in a sensitive area like Srinagar and that too during the peak of militancy where antinational elements can take advantage of intoxicated state of troops at any time. An officer of the level of Assistant Commandant is expected to keep this distinction in mind while issuing rum/liquor to the troops, particularly when the troops are on duty in a sensitive area like Srinagar and that too during the peak of militancy where antinational elements can take advantage of intoxicated state of troops at any time. There are statements recorded during enquiry which clearly indicate that each and every Jawan, irrespective of the fact whether they were on duty or not, were instructed to be issued one peg of rum and the instructions came from the petitioner only. 16. As already noted, from the statements of witnesses recorded during the Court of Enquiry proceedings, it has come to fore that civilians used to frequently mix up with the Jawans who were posted at Leeward Hotel post and, in fact, the Court of Enquiry has held Sub Inspector Basudev Singh and Naik M. G. Balan responsible for their undesired behaviour. According to the findings, they had failed to ensure camp security. 17. It is true that the Court of Enquiry has not given any finding against the petitioner but then as an Assistant Commandant, under whose jurisdiction the post was located, cannot escape the scrutiny of higher officers for his lack of supervision. 18. In view of what has been discussed hereinbefore, the contention of the petitioner that displeasure awarded against him by the IG and consequent recording of adverse remarks against him do not have any basis, cannot be accepted. The petitioner may not have been directly responsible for the loss of SLR rifle and he may not have been directly responsible for mixing up of civilians with Jawans of the post located under his supervisions but then facts and circumstances do indicate that his supervision of the post was not up to the mark. The misconduct of the petitioner is certainly of a mild nature which does not warrant a severe punishment but then least the respondents could do in the facts and circumstances of the case was to issue a displeasure against him, which they have rightly done. Such a misconduct can be ignored in any other institution but certainly not in a disciplined Organization like Border Security Force. 19. Such a misconduct can be ignored in any other institution but certainly not in a disciplined Organization like Border Security Force. 19. Apart from the above, it is not open to this Court in exercise of its writ jurisdiction to substitute its own opinion in place of the opinion of the competent authority in the matters relating to recording of ACRs. The recording of ACRs is, in essence, subjective and administrative in nature. The superior officers are enjoined and indeed duty bound to put down their subjective assessment of their subordinate officers/officials in the form of a confidential report. A superior officer may make certain remarks while assessing the work and conduct of the subordinate officer based on his personal supervision or contact. The recoding of ACRs being a matter of subjective satisfaction of the concerned officer in the very nature of things, the correctness thereof cannot be gone into by a Court in writ proceedings. The scope of judicial review against the adverse remarks is very limited and ordinarily courts would be reluctant to interfere in such matters. In my aforesaid view, I am supported by the judgment of the Supreme Court in the case of Rajendra Singh Verma (dead) through LRs v. Lieutenant Governor (NCT of Delhi), (2011) 10 SCC 1 and State of Madhya Pradesh vs. Srikant Chaphekar, AIR 1993 SC 1221 . 20. The scope of judicial intervention in such matters is confined only to the manner in which the decision is taken and not to the decision-making process. In the instant case, before awarding displeasure to petitioner, a show cause notice has been issued to him to explain his position and in the show cause notice, it was clearly indicated as to on the basis of which event displeasure is proposed to be awarded to him. In response to the said show cause notice, petitioner filed his representation and he was even furnished the copies of the proceedings of Court of Enquiry so that he could make an effective representation against the show cause notice, which he did. His explanation was considered and found to be unsatisfactory. Even his appeal against the recording of adverse remarks in his confidential reports was duly considered by the respondents and was found to be devoid of merit. It is not a case where petitioner has been condemned unheard. His explanation was considered and found to be unsatisfactory. Even his appeal against the recording of adverse remarks in his confidential reports was duly considered by the respondents and was found to be devoid of merit. It is not a case where petitioner has been condemned unheard. It is a case where petitioner has been given full opportunity to represent his side of story before the competent authority. So, the respondents have followed the principles of natural justice while passing the impugned orders/communications. Thus, no fault can be found in the process which the respondents have adopted in this case. The case law relied upon by the petitioner is not applicable to the instant case the facts of the case referred by the petitioner were quite distinct from the facts of the instant case. 21. It has been contended by learned senior counsel appearing for the petitioner that IG, BSF, was not competent to award displeasure to an officer of the rank of Assistant Commandant. In this regard, learned counsel has relied upon Rule 176A of the BSF Rules, which provides that displeasure or warning can be imposed by the Director General in case of officers and by an officer of the rank of Inspector General in case of subordinate officers. It is urged that petitioner at the relevant time was an Assistant Commandant and not a subordinate officer and, as such, it is only the Director General who could have issued displeasure or warning against him. 22. The Rule relied upon by the petitioner was not incorporated in the BSF Rules at the relevant time as the said Rule has been inserted only on 25th of November, 2011, by virtue of S.O. 2628(E). The contention of the petitioner, therefore, is without any merit and the same is, accordingly, rejected. 23. For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed. 24. No order as to costs.