Jammu & Kashmir High Court
Roop Chand Meena S/O Sh. Ram Chander ... vs Union Of India Through Home Secretary on 11 August, 2023
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
SWP No. 1039/2001.
IA nos. 01/2017 and 1036/2001.
Roop Chand Meena S/o Sh. Ram Chander Meena
R/o Haripura, tehsil Sri Madhopur District Sikar
Rajasthan, aged 34 years, 4th Bn ITBP C/o 56 APO.
.....Petitioner(s)
Through: Mrs. Surinder Kour, Sr. Advocate with
Mr. Rajiv Gorkha, Advocate.
Vs
1. Union of India through Home Secretary,
Ministry of Home Affairs, Govt. of India,
New Delhi.
2. Director General of Indo Tibetan Border
Police, Govt. of India, Block-2, CGO
Complex, Lodi Road, New Delhi.
3. Inspector General of Indo Tibetan Border
Police, Pantha Chowk, Srinagar.
4. Dy. Inspector General of Indo Tibetan
Border Police Force, Srinagar Jammu and
Kashmir-II.
5. Commandant 4th Bn Indo Tibetan Border
Police, MHA Srinagar C/o 56 APO.
..... Respondent(s)
Through: Mr. Vishal Sharma, DSGI.
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
11.08.2023
1. Through this writ petition under article 226 of the Constitution of India, the petitioner is seeking to undo the orders of the three authorities i.e., disciplinary authority, appellate authority and the revisional authority.
2 SWP No. 1039/2001.
2. The petitioner was born on the service of the Indo Tibetan Border Police (in short, 'ITBP') Force vide his appointment on 10th October, 1987 as Constable bearing no. 870145086. In the course of his service, the petitioner came to be promoted as Lance Naik on 31st of October, 1996. In the course of his service, the petitioner came to be posted in the 4th Bn ITBP Force Srinagar where act of misconduct came to take place at his end.
3. For an act of misconduct amounting to offences under ITBP Force Act, 1992 in which the petitioner, in an inebriated state, came to abuse his superior officer, abused in the roll call and shot off twenty five (25) rounds of fire from his service carbine in the air, the petitioner came to be booked for trial under the ITBP Force Act, 1992. This incident had taken place on 03.08.1999 which resulted in initiation of proceedings against the petitioner under ITBP Rules, 1994 by serving the petitioner with a charge- sheet under Rules 43 and 55(2) of the ITBP Force Rules by the Commandant, 4th Bn ITBP Force which led to conduct of trial of the petitioner by Summary Security Force Court resulting in conviction of the petitioner by holding him guilty of charges on three counts i.e., intoxication, violation of good order and discipline and injury to property.
4. Thus, being found so guilty, the Summary Security Force Court on 17.08.1999 came to pronounce the sentence upon the petitioner by demoting him from the rank of Lance Naik to 3 SWP No. 1039/2001. Constable (GD) w.e.f., 16.08.1999 and also to undergo sixty (60) days Rigorous Imprisonment in Force Custody by virtue of an Order no. I-26014/3/99 Estt (PHQ)-120 dated 17.08.1999 passed by the Commandant, 4th Bn ITBP Force.
5. It is against the conviction and punishment so inflicted upon the petitioner vide aforesaid order dated 17.08.1999 that the petitioner came to submit a statutory appeal to the Deputy Inspector General, ITBP, Srinagar, J&K-II which came to be rejected vide an Order no. 1.48022/Estt-1/D-3/99/2948 dated 19.05.2000 by the appellate authority of Deputy Inspector General, ITBP, Srinagar (J&K)-II.
6. Against the punishment as well as rejection of appeal, the petitioner came to prefer a revision petition before the Director General, ITBP Force which came to be negated by the revisional authority vide its Order no. 45011/148/99-JAG-457 dated 05.12.2000 by holding the revision petition filed by the petitioner being not maintainable under Section 131 of the ITBP Force Act, 1992 read with Rule 168 of the ITBP Rules, 1994.
7. It is against the aforesaid course of action against him that the petitioner, through the medium of the present writ petition, is seeking to challenge the same on the grounds that he was implicated in a false and frivolous charge under Sections 28, 43 and 36(a) of the ITBP Act, 1992 that too without conducting any Court of Inquiry and that the Security Summary Force Court trial 4 SWP No. 1039/2001. against the petitioner was misconducted without affording the petitioner an opportunity to cross-examine the witnesses and the entire proceedings loaded against him. In fact, the petitioner has left no possible ground of objection from being taken to undermine his conviction and punishment accorded to him.
8. In addition, the petitioner felt aggrieved that he has been inflicted two punishments in the form of demotion and imprisonment which is reflective of non-application of mind on the part of the Commandant, 4th Bn ITBP Force and that before imposing the intended punishment, the petitioner was not served with any show cause notice.
9. Upon hearing the submissions of Mrs. Surinder Kour, learned senior advocate arguing for the petitioner with vehemence that the petitioner is a sufferer at the hands of the respondents in the matter of dealing with him under the ITBP Force Act, 1992 and the ITBP Force Rules, 1994 this Court painstakingly perused the writ petition, the statutory appeal and the revision filed by the petitioner to find out any single line averment from the end of the petitioner with respect to the fact as to whether the petitioner had not indulged in the misconduct alleged against him but this Court fails to come across with a whisper of averment of denial from the petitioner's end with respect to the misconduct alleged against him meaning thereby the petitioner is in a state of admission that the misconduct alleged against him had taken 5 SWP No. 1039/2001. place from his end and the misconduct is that he, in a state of inebriation, misconducted himself by abusing the roll call to the extent of using his service carbine by triggering twenty five (25) rounds in the air.
10. When this Court keeps this misconduct of the petitioner in perspective and absence of an averment in the writ petition, appeal as well as the revision to the fact that allegations against him were false frame up, this Court has to remind itself that it cannot substitute the judgment and wisdom of the employer in dealing with misconduct of its employee more particularly when the employer is an ITBP Force and the employee is a part of constabulary wherein the sine qua non of service is inviolable discipline to the extent that life can be given up but the discipline cannot be given up by a member of armed forces.
11. Viewing thus, this Court reckons that the appellate authority was not convinced of the grouse of the petitioner against misconduct of proceedings in the context of his trial by the Summary Security Force Court and therefore, for this Court to dislodge even the reading and understanding of the appellate authority with respect to conduct of the proceedings of the Summary Security Force Court leading to punishment of the petitioner would be going beyond the domain of article 226 of the Constitution of India.
6 SWP No. 1039/2001.
12. The grievance of the petitioner that he has been inflicted two punishments is seriously misconceived given the fact that it is not that he has been served with two punishments for single offence but instead he has been punished with two punishments for two offences committed by him and, therefore, it may not lie in the mouth of the petitioner to feel aggrieved of the fact that he has been subjected to demotion and imprisonment in force custody for one offence only.
13. In view of the aforesaid, this writ petition is held to be misconceived and, therefore deserves, dismissal. The writ petition is, accordingly, dismissed.
14. However, there is one aspect of the case which calls for indulgence i.e., that the petitioner came to be demoted to the rank of Constable (GD) w.e.f., 16.08.1999 for an indefinite period. It is with respect to this aspect of the punishment that the appellate authority ought to have addressed its mind as to whether a punishment can be everlasting against a person in the form of demotion as directed by the Commandant 4th Bn ITBP Force in his order of punishment dated 17.08.1999. There ought to have been some limitation point for the running of the said punishment of demotion. To this extent, this Court allows the petitioner to submit an appeal before the Deputy Inspector General, ITBP Force, Srinagar (J&K)-II in case the petitioner has not superannuated from the service in the course of time and in 7 SWP No. 1039/2001. the event of said appeal being filed within a period of four months from the date of passing of this judgment, the Deputy Inspector General ITBP Force, Srinagar shall decide the appeal on merits to the extent as directed within a period of two months.
15. Connection applications also stand disposed of accordingly.
(Rahul Bharti) Judge JAMMU 11.08.2023 Naresh, Secy.
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No