AI Insights
The case revolves around Subedar P.S. Rathore, a member of the Border Security Force (BSF), who was removed from service despite being found 'not guilty' twice by the General Security Force Court (GSFC). The removal was challenged in the High Court of Rajasthan, which found the action of the Inspector General, BSF, to be arbitrary and in violation of the principles of natural justice. The court noted that the GSFC's findings of 'not guilty' were not properly acknowledged or confirmed by the competent authority, leading to an unlawful removal from service.
Appeal Details
Counselvise Citation
[2024] 140 COUNSELVISE.COM (IT) 818295 (HC-RAJASTHAN)
Assessee PAN
Bench
Appeal Number
CRN Number
Appellant
Respondent
Appeal Type
Others
Pronouncement Date
20-03-2024
Assessment Year
misc
Judgement Text
"[2024:RJ-JD:13380] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2094/2002 Subedar P.S. Rathore son of Late Shri Kalyan Singh, R/o Village Daulatpura, Tehsil Kuchamn District Nagaur (Since expired) through LRS: 1/1. Ravindra Singh Rathore S/o Late P.S. Rathore, Aged 51 years, R/o Village Daulatpura, Tehsil Kuchamn District Nagaur. 1/2. Jogindar Singh Rathore S/o Late P.S. Rathore, Aged 49 years, R/o Plot No.120, Kishan Colony, Near Todi Nagar, Sikar. 1/3. Smt. Arvind Kanwar D/o Late P.S. Rathore Aged 47 years, R/o G-2, Shaktesh Apartment, Moti Dungari Road, Jaipuir. ----Petitioner Versus 1. Union of India through the Secretary, Ministry of Home Affairs, Government of India, New Delhi. 2. The Director General, Border Security Force, CGO Complex, Lodi Road, New Delhi. 3. The Director (Personnel), Border Security Force, CGO Complex, Lodi Road, New Delhi. 4. The Inspector General, Border Security Force, R&G, Jodhpur. ----Respondent For Petitioner(s) : Mr. Khet Singh Rajpurohit For Respondent(s) : Mr. Mukesh Rajpurohit, Dy.S.G. JUSTICE DINESH MEHTA JUDGMENT REPORTABLE 20/03/2024 1. Instant writ petition was filed by P.S. Rathore (hereinafter referred to as ‘the petitioner’), who passed away during the pendency of present petition (on 10.06.2015). The present writ petition is being pursued by his legal representatives as their substitution application had been allowed. [2024:RJ-JD:13380] (2 of 12) [CW-2094/2002] 2. The petitioner who was a Subedar in Border Security Force (hereinafter referred to as the BSF’) had challenged the order dated 20.09.2002 (Annexure-15), whereby he was removed from services with immediate effect with admissible pension as per Rule 41 of The Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as the Rules of 1972). 3. The facts apropos are that while working as Subedar in 36 Battalion, the petitioner was served with a charge-sheet dated 30.10.1999 and called upon to face trial by the General Security Force Court (hereinafter referred to as ‘the GSFC’). 4. According to the petitioner, he filed his reply and participated in the proceedings before the GSFC and was found ‘not guilty’. It is to be noted that the petitioner has neither given the date of conclusion of the proceedings of the GSFC, whereby he was found ‘not guilty’ nor he or the respondents have placed a copy of the said order on record. But the fact that the petitioner was found ‘not guilty’ has not been disputed and the same can be discerned from the revisional order dated 07.04.2000 (Annexure-6). 5. It is to be noted that when the matter went before the competent authority - respondent no.4 (Inspector General, Border Security Force) for confirmation as per Section 107 of the Border Security Force Act, 1968 (hereinafter referred to as the Act of 1968’), the matter was sent back to GSFC for reconsideration per- viam above referred revisional order dated 07.04.2000. 6. The matter was reconsidered by the GSFC and this time also, by the order dated 22.05.2000, the petitioner was found ‘not guilty’. [2024:RJ-JD:13380] (3 of 12) [CW-2094/2002] 7. A promulgation came to be issued on 23.06.2000 by the Commandant, 79 Battalion, BSF declaring that Revision of findings against charge-sheet held on 22.05.2000 were promulgated to the accused petitioner on 23.06.2000. 8. When despite being found innocent, the petitioner was not taken back on duty, he submitted a representation/grievances petition dated 05.03.2002 before the competent authority. Such petition/representation remained unheeded, hence, he moved this Court by way of invoking its writ jurisdiction under Article 226 of the Constitution on 23.06.2002. 9. After service of notice of the writ petition, the respondent no.4 chose to issue a memorandum or show cause notice dated 23.07.2002 to the petitioner asking him as to why he should not be removed from services under Section 11 of Act of 1968 read with Rule 22 of the Border Security Force Rules, 1969 (hereinafter referred to as ‘the Rules of 1969’). 10. The petitioner filed a detailed reply in response to the said show cause notice and submitted that he has been exonerated or found ‘not guilty’ twice and during the pendency of the writ petition, any action prejudicial to his right be not taken. It was also submitted that the petitioner was due to retire on 30.11.2002 and therefore, he be allowed to retire peacefully without taking action as proposed. 11. The show cause notice culminated into the order impugned dated 20.09.2002 and the petitioner has been removed from the services with admissible pension as per Rule 41 of the Rules of 1972. [2024:RJ-JD:13380] (4 of 12) [CW-2094/2002] 12. Mr. Khet Singh Rajpurohit, learned counsel for the petitioner argued that the order impugned passed by the IG - respondent no.4 is absolutely illegal, arbitrary and against the principles of natural justice. He submitted that the petitioner was exonerated twice; first order was not confirmed by the respondent no.4 and the matter was sent for reconsideration and again on 22.05.2000 he was held ‘not guilty’ by the GSFC and the promulgation in this regard was issued on 23.06.2000. 13. He submitted that the IG, BSF had once remitted the matter to the GSFC for reconsideration and therefore, if he was not agreeing with the finding recorded by the GSFC, he was supposed to give valid reasons for differing with the findings, whereas, neither the show cause notice nor the order impugned makes even a whisper about the reasons, for which IG, BSF disagreed with the finding of ‘not guilty’ recorded by the GSFC. 14. Learned counsel for the petitioner contended that the respondent no.4 – IG, BSF has observed empty formality of following principles of natural justice. He argued that the respondent no.4 has not applied his mind to the reply filed by the petitioner, much less dealing with the same and held the petitioner guilty of abetment with premeditated mind. It was also argued that even if the charges levelled against the petitioner and facts involved therein are considered, neither the co-accused could be held guilty of murder nor could the present petitioner be convicted for abetting the murder, inasmuch as, it is clear from the record that the deceased Ujir Mohammed – a Bangladeshi national had entered Indian terrain to the extent of 50 yards and considering the threat to security, the petitioner had given command to shoot. [2024:RJ-JD:13380] (5 of 12) [CW-2094/2002] He submitted that the petitioner might have overreacted, but could not be held guilty of abetting the murder. 15. Mr. Rajpurohit argued that it was incumbent upon the respondent no.4 to have recorded his reasons for not agreeing with the finding of the GSFC and it was only after his guilt was established or confirmed, any extreme action of removal from service could be taken. 16. Learned counsel for the petitioner lastly submitted that in any case, when the petitioner was going to retire on 30.11.2002, there was no reason with the respondent no.4 to have removed him from services, particularly when by way of order dated 23.06.2000, he had been informed of the order dated 22.05.2000. 17. Mr. Mukesh Rajpurohit, learned Dy. Solicitor General submitted that against the order under challenge, a remedy of preferring an appeal has been provided under Rule 28A of the Rules of 1969 and in face of availability of efficacious alternate remedy, this Court should not entertain the present writ petition. He further submitted that the respondent no.4 - IG, BSF has recorded its satisfaction, which is subjective satisfaction and such decision being taken by the Head of a disciplined Force, should not be interfered with. 18. Learned counsel for the respondents further submitted that Section 11 of the Act of 1968 read with Rule 22 of the Rules of 1969, empowers the respondent no.04 - IG, BSF to pass order of removal and therefore, there is no illegality or infirmity in the order under challenge. 19. Heard learned counsel for the parties and perused the record. [2024:RJ-JD:13380] (6 of 12) [CW-2094/2002] 20. This Court is not impressed much less convinced with the argument regarding availability of alternative remedy. It is pertinent to note that the present petition after being admitted is pending consideration for more than 23 years. That apart, the order impugned is not only non-speaking and violative of Article 14 of the Constitution of India, but also violative of Fundamental Rights guaranteed to the petitioner under Articles 16 and 21 of the Constitution of India, as he had been removed from the services. 21. It is settled position of law that existence of an alternative remedy does not by itself divest the High Court of its powers under Article 226. (See M/s. Radha Krishan Industries vs. State of Himachal Pradesh reported in 2021 SCC Online SC 334). 22. It was noted by Hon’ble The Supreme Court in the case of Hirday Narain vs. Income-Tax Officer, Bareilly reported in (1970) 2 SCC 355, that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non-exhaustion of statutory remedies; unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition. 23. Concededly, the GSFC had recorded the finding of ‘not guilty’ qua the petitioner on two occasions. On first occasion, when the matter was placed for confirmation, the respondent no.4 had sent the same for reconsideration; it was reconsidered by the GSFC and by the order 22.05.2000, the petitioner was again found ‘not guilty’. [2024:RJ-JD:13380] (7 of 12) [CW-2094/2002] 24. According to this Court, the order of the GSFC does not require any confirmation by the competent authority on the second occasion. The reasons are not far to seek – if the scheme of the Act, provisions contained in Sections 107-113 more particularly Section 113 of the Act of 1968 are examined carefully, there remains no doubt that only one revision is permissible. It will not be out of place to reproduce Section 113 of the Act of 1968, as under: “113. Revision of finding or sentence.- (1) Any finding or sentence of a Security Force Court which requires confirmation may be once revised by order of the confirming authority and on such revision, the court, if so directed by the confirming authority, may take additional evidence. (2) The court, on revision, shall consist of the same officers as were present when the original decision was passed, unless any of those officers are unavoidably absent. (3) In case of such unavoidable absence the cause thereof shall be duly certified in the proceedings, and the court shall proceed with the revision, provided that, if a General Security Force Court, it still consists of five officers, or, if a Petty Security Force Court, of three officers.” 25. According to this Court, the language used in Section 113 of the Act of 1968 has to be given its natural meaning. The Parliament has consciously conferred upon the Central Government or the competent confirming authority the power to direct a revision of the finding of Security Force Court or power to remand or send the matter for reconsideration only once. Use of expression ‘may be once revised’ clearly suggests that if the GSFC [2024:RJ-JD:13380] (8 of 12) [CW-2094/2002] reiterates its original finding, the competent authority is bound to confirm or follow the same. Hence, when even upon reconsideration, the GSFC found the petitioner innocent or ‘not guilty’, the findings of GSFC ought to have been given due regard. In absence of any power for second revision or power to set at naught the findings of the GSFC, the respondent no.4 was bound to accept the same – he should have rest contended. 26. Similar view has been expressed by Hon’ble The Apex Court in the case of Union Of India & Ors. vs. Capt. A.P. Bajpai, reported in (1998) 4 SCC 245 while dealing with the provisions of Army Rules, 1954, more particularly in Para–9 of the judgment, which is extracted hereinfra: “The finding sentence of the Court Martial can be revised once by the confirming authority. If after remand the Court Martial returns the same finding or sentence confirming authority would be bound by the same. As to why the confirming authority would like the Court Martial to reconsider the matter, it has per force to give its views which it can do only after examining the evidence on record and the proceedings of the Court Martial.” 27. It is noteworthy that on 22.05.2000, the GSFC reiterated its earlier finding and again recorded ‘not guilty’, which was followed by a communication dated 23.06.2000 in prescribed Appendix IX issued by the Commandant of his Battalion. It is noteworthy that said communication noted as below: ”against charge-sheet No.2 and revision of findings against charge-sheet No.1 held on 22.05.2000 were promulgated to accused….”. [2024:RJ-JD:13380] (9 of 12) [CW-2094/2002] 28. A look at such communication gives a clear impression that the findings of GSFC on 22.05.2000 (after revision) have been confirmed. 29. Though while issuing show cause notice dated 23.07.2002 the respondent no.4 in Para No. 5 had stated that he did not confirm the finding of the Court on the ground that it was against the weight of evidence on record and it was promulgated to the petitioner. But the facts are otherwise. A look at the promulgation dated 23.06.2002, as indicated above gives a clear indication that the finding of the Court had been confirmed. 30. The stand of respondent no.4 that he did not confirm the finding is apparently an after thought, which is writ large upon a perusal of promulgation dated 23.06.2000, issued in prescribed Appendix IX. The communication/promulgation dated 23.06.2000 (Annexure-8) contains following note: “No record has been kept of the finding and sentence.” 31. Now, if prescribed Appendix IX appended with the Rules of 1969 is perused, it can be seen that such Note is to be made in case of acquittal. 32. For the sake of ready reference, it will be apposite to reproduce the Form prescribed under Rule 106(8) of the Rules of 1969 being Appendix IX:- APPENDIX-IX (Rule - 106 (8) 1. The finding and sentence of the General/Petty Security Force Court held at…...(place) ….... from ….... day to ……... day for the trial of the accused……. were promulgated to the accused by me at ……. (place) on …. day of ….20...] [2024:RJ-JD:13380] (10 of 12) [CW-2094/2002] Extracts for battalion records have been taken/ *No record has been kept of the finding and sentence. Place…. ……………………. Date….. Signature Commandant * to be used in case of acquittal on all charges. 33. A simple look at the above form makes it abundantly clear that the Note “No record has been kept of finding and sentence” was stringed with the order/promulgation dated 23.06.2000 only because, it was a case of acquittal on all charges, as is evident from perusal of underlined part of the prescribed form which has ‘*’ mark and the note given beneath the form. 34. It is therefore crystal clear that the respondent No.4 has wrongly mentioned in the notice dated 23.07.2002 that he did not confirm the finding of the Court. Hence, the show cause notice, which was issued after two years was issued vindictively. Culmination of such arbitrarily kick started proceedings in the form of order dated 20.09.2002 is also vitiated suffering from vice of fancy and caprice. 35. Notwithstanding above, a look at the order dated 20.09.2002 shows that the respondent No.4 has held the petitioner guilty of alleged offence by a ‘single word order’ and has removed the petitioner from service by a ‘single line order’. 36. Even if it is assumed that the respondent no.4 wanted to or had taken decision not to confirm the findings dated 22.05.2000 of the GSFC, it was incumbent upon the respondents to inform the petitioner in clear terms that the findings of GSFC have not been confirmed. Failure to do so has taken away petitioner’s right to file [2024:RJ-JD:13380] (11 of 12) [CW-2094/2002] a petition before the Central Government as per Section 117(2) of the Act of 1968 read with Rules 167 & 168 of the Rules of 1969. Failure to communicate the decision, to withhold the confirmation or refusal to confirm is fatal. 37. Even in their reply, the respondents have not placed any material to establish that the second order of GSFC was not approved. Hence, the stand of respondents that the second order of GSFC was not confirmed is factually incorrect. 38. Moreso, had the respondent no.4 not confirmed the order of GSFC dated 22.05.2000, it was incumbent upon him to have passed a specific order holding the petitioner guilty for offence under Section 302 read with Section 109 of Indian Penal Code and award sentence that too after providing opportunity of hearing to the petitioner or at least send a copy. Admittedly, no such order has been passed. 39. But as the events unfold, it was only in the order impugned dated 20.09.2002 for the first time, respondent no.4 has held the petitioner guilty, that too without giving any reason and passing any sentence. 40. As the finding of guilt, per se, is illegal and against the principles of natural justice, consequential order of dismissal is also void and non-est, as the same hinges upon the finding of petitioner’s guilt of offence under Section 302 read with Section 109 of Indian Penal Code. 41. The order dated 20.09.2002, is therefore, quashed and set aside and the writ petition is allowed. [2024:RJ-JD:13380] (12 of 12) [CW-2094/2002] 42. The petitioner shall be deemed to have been in service until he attained the age of superannuation and shall be entitled for all consequential benefits, including full pension. 43. The legal representatives of the deceased petitioner shall get the same in accordance with law. 44. Needful be done within a period of three months from today. 45. Interlocutory application(s), if any, stand disposed of. (DINESH MEHTA),J 2-Mak/- "
Other Referred Cases
M/s. Radha Krishan Industries vs. State of Himachal Pradesh, Hirday Narain vs. Income-Tax Officer, Bareilly, Union Of India & Ors. vs. Capt. A.P. Bajpai
Laws Referred To
The Central Civil Services (Pension) Rules, 1972, Border Security Force Act, 1968, Border Security Force Rules, 1969, Indian Penal Code
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