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Commandant/Gd Rajesh Kumar Tomar vs Union Of India & Ors on 8 July, 2021

Author: Rajiv Sahai Endlaw

Bench: Rajiv Sahai Endlaw, Amit Bansal

$~13
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    W.P.(C) 6227/2021 & CM No.19721/2021 (for interim directions)
     COMMANDANT/GD RAJESH KUMAR TOMAR..... Petitioner
                      Through: Mr. Vivek Sheel, Adv.
                              Versus
     UNION OF INDIA & ORS.                         ..... Respondents
                      Through: Mr. Vinod Diwakar, Mr. Vishal
                                 Kumar Singh & Mr. Shrivalli Gosh,
                                 Advs.
     CORAM:
     HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
     HON'BLE MR. JUSTICE AMIT BANSAL
                ORDER

%               08.07.2021

[VIA VIDEO CONFERENCING]
CM No.19722/2021 (for exemption)

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

2. The application is disposed of.

W.P.(C) 6227/2021

3. The petitioner is a Commandant (General Duty) in the respondents Indo-Tibetan Border Police (ITBP) Force and is facing General Force Court (GFC) trial on as many as twenty charges. The petitioner, on 19 th March, 2021 made an application to the GFC under Rule 76 of the Indo-Tibetan Border Police Force Rules, 1994, pleading that trial for twelve out of the twenty charges was barred by time within the meaning of Section 88 of the Indo-Tibetan Border Police Force Act, 1992. The said plea found favour with the GFC, which, holding so, vide order dated 22nd March, 2021 adjourned the GFC proceedings sine die. However the Convening Authority, vide order dated 23rd March, 2021 reversed the order of the GFC W.P.(C) No.6227/2021 Page 1 of 3 and thus the proceedings before the GFC commenced.

4. It is the case of the petitioner, that the petitioner, on 30th and 31st March, 2021 approached the Confirming Authority under Section 131(1) of the ITBP Act, seeking annulment of the trial with respect to twelve charges aforesaid as barred by time as well as seeking annulment of the proceedings on the ground of absence of jurisdiction and impugning the order dated 23rd March, 2021 of the Convening Authority, but the Confirming Authority has inspite of nearly four months having elapsed, not decided the said petitions dated 30th and 31st March, 2021 of the petitioner.

5. It is further pleaded that in the meanwhile, the GFC has concluded the recording of evidence and hearing of arguments has commenced on 2nd July, 2021.

6. The counsel for the respondents appearing on advance notice, after obtaining instructions states that the petitions dated 30th and 31st March, 2021 of the petitioner shall definitely be decided before the GFC pronounces its order.

7. The counsel for the petitioner states that the petitioner be not made to address arguments before the GFC till the decision is taken on the petitioner's petitions dated 30th and 31st March, 2021 to the Confirming Authority.

8. We are however of the view that since the trial has already been concluded before the GFC and hearing of arguments has commenced, it is not apposite to grant stay of proceedings before the GFC at this stage when the respondents have themselves stated that the petitions dated 30th and 31st March, 2021 of the petitioner shall be decided before the GFC returns its finding / decision.

9. The petition is thus disposed of, recording the statement aforesaid of the respondents and directing the respondents to decide the petitions dated 30th and 31st March, 2021 of the petitioner under Section 131(1) of the ITBP Act and with respect to order dated 23 rd March, 2021, within four weeks and in any case, before the GFC pronounces its order / finding and to communicate the said decision to the petitioner under acknowledgment. It is further directed that the GFC to not pronounce its finding / decision for at least ten days after the decision has been so communicated to the petitioner.

10. The petition is disposed of.

RAJIV SAHAI ENDLAW, J AMIT BANSAL, J JULY 8, 2021 'gsr'..