Madras High Court
Union Of India vs T.Mani on 13 October, 2020
Bench: A.P.Sahi, Senthilkumar Ramamoorthy
W.A.No.609 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 29.09.2020
Pronounced on : 13.10.2020
CORAM
The Hon'ble Mr. A.P.SAHI, THE CHIEF JUSTICE
and
The Hon'ble Mr. Justice SENTHILKUMAR RAMAMOORTHY
Writ Appeal No.609 of 2020
&
C.MP.No.8432 of 2020
1. Union of India
Rep. By the Secretary,
Ministry of Home Affairs,
North Block, New Delhi-110 114.
2. The Deputy Inspector General (Personal)
Border Security Force,
Block No.10, C.G.O. Complex,
Lodhi Road,
New Delhi-110 011.
3. The Inspector General
Border Security Force (South Bengal)
2B, Lord Sinha Road,
Kolkatta – 700 071
4. The Additional Deputy Inspector General (Confidential)
Directorate General Border Security Force,
Block No.10, 5th Floor,
C.G.O. Complex, Lodhi Road,
New Delhi-110 003. ... Appellants
http://www.judis.nic.in
1 of 33
W.A.No.609 of 2020
vs
T.Mani ... Respondent
PRAYER : Writ Appeal is filed under Clause 15 of Letters Patent, to set
aside the order passed in W.P.No.35854 of 2004 dated 15.04.2019 by
allowing the present writ petition.
For Appellants : Mr.D.Simon
For Respondent : Mr.S.Suresh
JUDGMENT
SENTHILKUMAR RAMAMOORTHY J., This intra court appeal is filed by the Union of India and the Border Security Force, who were the respondents in W.P. No.35854 of 2004, so as to challenge the order dated 15.04.2019 in the said writ petition. By the said order, the writ petition was allowed and the impugned order dated 21.04.2004 and the consequential communication dated 09.09.2004 of the fourth Respondent, whereby the Respondent's services were terminated, were set aside. Consequently, the learned single Judge modified the Petitioner's punishment into 'compulsory retirement' instead of 'termination'. The Respondent/Petitioner was held to be entitled to monetary and pension benefits as a result of such modification. http://www.judis.nic.in 2 of 33 W.A.No.609 of 2020
2. The facts and circumstances leading to the present appeal are as follows: the Respondent/Petitioner was employed as a Commandant of the 11th Battalion of the Border Security Force (hereinafter referred to as the BSF). On the basis of the charge that the Respondent/Petitioner had agreed to give safe passage to smugglers in the area of responsibility of the 11th Battalion, in terms of Rule 173 of the Border Security Force Rules, 1962 (the BSF Rules), a one man Staff Court of Inquiry (SCOI) was constituted by the BSF on 10.01.2002. The SCOI conducted proceedings from 24.01.2002 onwards. An additional SCOI was convened under the same officer on 23.04.2002 to rectify shortcomings/discrepancies in the original SCOI as stated in the convening order. As no new facts were unearthed, an additional opinion was not prepared and the proceedings of the SCOI were forwarded to the Frontier Headquarters of the BSF on 29.04.2002. On that basis, the Inspector General recommended that trial by a Security Force Court is inexpedient and impracticable because the availability and presence of smugglers, as witnesses, is questionable. Instead, it was recommended that the services of the Respondent be terminated as per Rule 20 of the BSF Rules. Therefore, a show cause notice dated 21.08.2002 was issued to the Respondent. He replied thereto on 24.09.2002. In the said reply, he denied http://www.judis.nic.in 3 of 33 W.A.No.609 of 2020 the charges and contended that the SCOI is not a court and that the charges against him were not proved. Meanwhile, the Respondent approached the High Court of Calcutta by filing W.P. No.3362(W) of 2003. By order dated 29.08.2003, the said writ petition was disposed of by directing the Director General to discharge obligations as per Rule 20(3) and (4) of the BSF Rules within a reasonable time.
3. In these facts and circumstances, an order of termination was issued on 21.04.2004. The said order of termination was followed by a communication dated 09.09.2004, whereby the memorandum of the Respondent requesting that the termination be revoked was rejected. In these facts and circumstances, the Respondent/Petitioner filed the writ petition which resulted in the impugned order of the learned single Judge dated 15.04.2019, which is impugned herein.
4. We heard the learned counsel, Mr.Simon, for the Appellants; and the learned counsel, Mr.Suresh, for the Respondent. http://www.judis.nic.in 4 of 33 W.A.No.609 of 2020
5. Mr.Simon contended that the Respondent aided and abetted smuggling activities while he was stationed in a sensitive area in the 11th Battalion of the BSF. Consequently, he was terminated from service upon conducting a comprehensive enquiry through a SCOI. Based on the finding of the SCOI, a show cause notice was issued to him on 21.08.2002 and the termination order was issued on 21.04.2004 after duly taking into consideration the reply dated 24.09.2002. Thus, he submits that the Appellants adhered to the principles of natural justice and followed the prescribed procedure before issuing the termination order. However, he submits that the learned single Judge called for and relied upon documents available in the files that were produced by the Appellants in order to modify the punishment. According to Mr.Simon, the learned single Judge should not have relied upon these note sheets, which were confidential communications, in order to modify the order. Given the fact that the Respondent/Petitioner was an employee of the Border Security Force, an infraction of the rules, especially with regard to aiding and abetting unlawful activities, is required to be dealt with severely in the national interest. In support of his contentions, he relied upon the judgment of the Supreme Court in Chief of Army Staff v. Major Dharam Pal Singh (1985) http://www.judis.nic.in 5 of 33 W.A.No.609 of 2020 2 SCC 412 (Major Dharam Pal Singh), wherein, in the context of a general court-martial finding that had not been confirmed, the Supreme Court concluded that Rule 14 of the Army Rules could be invoked in order to terminate the services of a person, whose retention in service is undesirable, if a fresh trial by court-martial is inexpedient or impracticable. He also relied on a subsequent judgment in Union of India v. Harjeet Singh Sandhu (2001) 5 SCC 593, wherein the ratio of Major Dharam Pal Singh was followed and it was held that the decision taken pursuant to Rule 14 of the Army Rules should not have been interfered with by the High Court. For all these reasons, Mr.Simon submitted that the impugned order of the learned single Judge is liable to be set aside.
6. In reply, Mr.Suresh opened his submissions by stating that the Respondent received a President's medal for gallantry. He further submitted that charges were foisted on the Respondent on account of minor acts of insubordination, and that the 11th battalion consisted of a large contingent of officers and soldiers; therefore, it was not possible for the Respondent to aid and abet smugglers unless the entire contingent was complicit in such activity. His next contention was that the Appellants opted to establish a http://www.judis.nic.in 6 of 33 W.A.No.609 of 2020 SCOI under Rule 173 of the BSF Rules instead of prosecuting the Respondent for aiding and abetting smuggling activities as per the relevant rules. Once the Appellants opt for a SCOI procedure, he submitted that Rules 20 and 21 of the BSF Rules are not applicable unless it is preceded by a trial through a Security Force Court. His next contention was that the charges were not proved because it was necessary to constitute a Security Force Court for such purpose, and this was admittedly not done. Instead, by communication dated 30.05.2002, the Deputy Inspector-General, who did not have the requisite authority, recommended termination under Rule 20 of the BSF Rules on the alleged ground that it is inexpedient and impracticable to constitute a Security Force Court. The show cause notice dated 20.08.2002 was issued on the basis of the above communication and a reply dated 24.09.2002 was issued.
7. Thereafter, the Respondent approached the Calcutta High Court and an order dated 29.08.2003 was pronounced to adhere to Rule 20. Eventually, the termination order dated 21.04.2004 was issued to the Respondent as also the consequential communication dated 09.09.2004, and the writ petition was filed to challenge the same. http://www.judis.nic.in 7 of 33 W.A.No.609 of 2020
8. Upon production of the file during the course of adjudication of the writ petition, the following additional facts came to light. The Deputy Inspector General [Personnel], Mr.Hemant Desai, by Note Sheet No.121, communication dated 24.02.2004, stated that the Respondent's case was reviewed and a draft order to revoke the proceedings under Rule 20 was sent for an opinion. The Chief Legal Officer (the CLO) opined that revoking the process would not be in consonance with the directions of the Calcutta High Court, whereby the Director General was directed to act as per the provisions of Rule 20 of the BSF Rules. After considering the above in light of the opinion of the Additional Solicitor General of the Calcutta High Court, the Deputy Inspector General stated that the compulsory retirement from service of the Respondent under Rule 20(4)(c) would serve the ends of justice instead of imposing the penalty of dismissal. On that basis, the approval of the Central Government was requested for with regard to the compulsory retirement of the Respondent with pension benefits in terms of Rule 20(4)(c) of the BSF Rules. After referring to the reply dated 08.03.2004 of the Section Officer, Ministry of Home Affairs, wherein it was wrongly stated that the charges were proved, the learned counsel next referred to Note Sheet No.124 of the Additional DIG, Mr.Chacko George, http://www.judis.nic.in 8 of 33 W.A.No.609 of 2020 dated 11.03.2004, wherein it is recorded that the SCOI is only a fact finding body and that it cannot be concluded on the basis of the report of the SCOI that the charges were proved. On that basis, it was recommended that the officer be subjected to compulsory retirement with pension benefits. The learned counsel submitted that the impugned order was subsequently issued on 21.04.2004 by the same officer, namely, the Deputy Inspector General (Personnel), Mr.Hemant Desai, who issued the recommendation for compulsory retirement with pension benefits under Note Sheet 121 which was referred to supra. For all these reasons, he submitted that there is no infirmity in the impugned order of the learned single Judge.
9. We considered the submissions of the learned counsel for the respective parties and examined the materials available on record.
10. From the pleadings and documents on record, it is clear that the Respondent challenged the impugned orders primarily on the ground that the SCOI merely conducts a preliminary enquiry and that it cannot be said that the charges against the Respondent were proved on the basis of the proceedings of the SCOI. Indeed, the case of the Respondent is that the http://www.judis.nic.in 9 of 33 W.A.No.609 of 2020 evidence recorded in the SCOI was not favourable to the Appellants and, therefore, they opted not to constitute a Security Force Court on the tenuous ground of inexpediency and on the alleged basis that it is impracticable. Therefore, it should be borne in mind that the Respondent did not build the case on note sheets or other internal communications of the Appellants. However, during the adjudication of the writ petition, the Appellants were directed to produce the relevant files and they complied with the direction. Accordingly, the file containing the note sheets was produced before the learned single Judge. Upon production, the file was examined and the note sheets contained therein were referred to and relied upon by the learned single Judge to conclude that the impugned order in the writ petition warrants interference. The relevant note sheets were also included, thereafter, in the typed set of papers filed by the Appellants in the appeal and, therefore, at this juncture, the said note sheets cannot be considered as confidential communications.
11. The undisputed position is that the Respondent / Petitioner joined the BSF in the year 1983. He was promoted on more than one occasion and was posted as a Commandant to carry out border duties in http://www.judis.nic.in 10 of 33 W.A.No.609 of 2020 Malda in the year 2001. He was placed under suspension on 03.01.2002 for allegedly aiding and abetting smuggling activities. A SCOI was constituted to enquire into the charges on 24.01.2002. Thereafter, an additional SCOI was ordered. On the basis of such enquiry, a show cause notice was issued on 21.08.2002 under Rule 20 of the BSF rules and the decision impugned in the writ petition was taken although the BSF authorities had made recommendations for the compulsory retirement of the Respondent with pension benefits. Rule 20 of the BSF Rules was relied upon in the impugned order and communication and, therefore, the same is set out below:
"20. Termination of service of officers by the Central Government on account of misconduct (1) when it is proposed to terminate the service of an officer under section 10 on account of mis-conduct, he shall be given an opportunity to show cause in the manner specified in sub-rule (2) against such action:-
Provided that this sub-rule shall not apply:-
(a) where the service is terminated on the ground of conduct which has led to his conviction by a criminal court or a Security Force Court; or http://www.judis.nic.in
11 of 33 W.A.No.609 of 2020
(b) where the Central Government is satisfied that for reasons, to be recorded in writing, it is not expedient or reasonably practicable to give to the officer an opportunity of showing cause.
(2) 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 the 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 if any, 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:
Provided that the Director General may with hold disclosure of such report or portion thereof if, in his http://www.judis.nic.in
12 of 33 W.A.No.609 of 2020 opinion, its disclosure is not in the interest of the security of the State.
(3) In the event of explanation of the Officer being considered unsatisfactory by the Director-General, or when so directed by the Central Government, the case shall be submitted to the Central Government with the Officer’s defence and the recommendations of the Director-General as to the termination of the Officer’s service in the manner specified in sub-rule (4). (4) When submitting a case to the Central Government under the provision of sub-rule (2) or sub-rule (3), the Director-General shall make his recommendation whether the Officer’s service should be terminated, and if so, whether the officer should be,-
(a) dismissed from the service; or
(b) removed from the service; or
(c) retired from the service; or
(d) called upon to resign.
http://www.judis.nic.in 13 of 33 W.A.No.609 of 2020 (5) The Central Government, after considering the reports and the officer’s defence, if any, or the judgement 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 the service with pension or gratuity, if any, admissible to him."
On perusal of Rule 20, it is clear that ordinarily termination for misconduct is on the basis of conviction by a criminal court or a Security Force Court but this may be dispensed with if the Central Government or the Director General are of the opinion that a trial by an officer of the Security Force Court is inexpedient or impracticable. In such event, four options, as regards punishment are set out in Rule 20(4)(a)-(d). In this case, Rule 20(4)(c) was recommended but Rule 20(4)(b) was eventually used. While the writ petition was pending, the Respondent attained the age of the superannuation in 2011. Because the learned single Judge interfered with the orders http://www.judis.nic.in 14 of 33 W.A.No.609 of 2020 impugned in the writ petitions largely on the basis of a scrutiny of documents in the file, the law on the subject should be examined.
12. The Hon'ble Supreme Court considered the question as to whether note sheets may be relied upon by a court to decide a case and held that note sheets cannot be relied upon in the following cases:
(i) In Sethi Auto Service Station v. Delhi Development Authority (2009) (1) SCC 180) (Sethi Auto Service), a technical committee of the Delhi Development Authority, recommended that fuel stations be re-located to different sites but the Vice-Chairman rejected such recommendation. A case was filed by relying on the recommendation as a binding decision and as forming the basis of legitimate expectation. In that context, the Hon'ble Supreme Court held as follows in paragraph 14:
"It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that http://www.judis.nic.in 15 of 33 W.A.No.609 of 2020 internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated to the person concerned.”
(ii) In Shanti Sports Club v. Union of India, (2009) 15 SCC 705 (Shanthi Sports Club), the former Urban Development Minister agreed, at a meeting, to de-notify lands from acquisition under Section 48(1) of the Land Acquisition Act, 1894, which decision was not accepted by his successor. The case was filed by relying on the decision of the former minister and, in that context, the Hon'ble Supreme Court held as follows:
"43. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is http://www.judis.nic.in 16 of 33 W.A.No.609 of 2020 sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review.
52. As a result of the above discussion, we hold that the noting recorded in the official files by the officers of the Government at different levels and even the Ministers do not become decision of the Government unless the same is sanctified and acted upon by issuing an order in the name of the President or Governor, as the case may, authenticated in the manner provided in Articles 77(2) and 166(2) and is communicated to the affected persons. The notings and/or decisions recorded in the file do not confer any right or adversely affect the right of any person and the same can neither be challenged in a court nor http://www.judis.nic.in 17 of 33 W.A.No.609 of 2020 made basis for seeking relief. Even if the competent authority records noting in the file, which indicates that some decision has been taken by the concerned authority, the same can always be reviewed by the same authority or reversed or over-turned or overruled by higher functionary/authority in the Government. "
(iii) In Delhi Union of Journalists Co-op. House Building Society Ltd. v. Union of India, (2013) 15 SCC 614, the Hon'ble Supreme Court followed the earlier decisions in Sethi Auto Service and Shanthi Sports Club.
(iv) In Union of India v. Ashok Kumar Aggarwal, (2013) 16 SCC 147, while upholding the quashing of a suspension order, the Hon'ble Supreme Court held as follows:
"33.The instant case is required to be considered in light of the aforesaid settled legal propositions, statutory provisions, circulars, etc. The Tribunal inter alia had placed reliance on notings of the file. The issue as to whether the notings on the file can be relied upon is no more res integra.
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38. Thus, in view of the above, it is evident that the notings in the files could not be relied upon by the Tribunal and Court. However, the issue of paramount importance remains as what could be the effect of judgment and order of the Tribunal dated 16-12-2011 [Ashok Kumar Aggarwal v.Union of India, OA No. 2842 of 2010, order dated 16-12-2011 (CAT)] wherein the Tribunal had directed the appellants to reconsider the whole case taking into account various issues inter alia as to what would be the effect of quashing of the charge-sheet by the Tribunal against the respondent; the report/recommendation of the Law Ministry to revoke the sanction; the effect of affidavit filed by the then Finance Minister after remand of the sanction matter by the High Court to the effect that though the competent authority had accorded sanction, the entire relevant matter had not been placed before him; the directions passed by the High Court against the officers of CBI in the cases of Shri Vijay Aggarwal and Shri S.R. Saini; and the duration of pendency of criminal trial against the respondent and, particularly, taking note of the stage/status of the criminal proceedings, in view of the fact that the http://www.judis.nic.in 19 of 33 W.A.No.609 of 2020 respondent is on bail since 2000 and since the investigation is completed, whether there is any possibility of tampering with the evidence. "
13. In the above cases, the petition was filed by relying upon and, indeed, using the internal communications/ note sheets as the foundation. In those circumstances, the Hon'ble Supreme Court concluded that note sheets are not orders that may be relied upon and, as they were not communicated to the petitioner, they cannot be the basis for a claim on the ground of legitimate expectation. By contrast, in this case, as stated earlier, the Respondent/Petitioner challenged the termination order primarily on the ground that the SCOI is a preliminary enquiry and that the charges against the Respondent/Petitioner were not proved therein or otherwise. Thus, in contradistinction to those cases, in this case, the Respondent/Petitioner did not impugn the termination by relying on these note sheets. Instead, during the course of adjudication, the learned single Judge examined the files containing the note sheets. In the appeal, the Appellants produced these note sheets and such note sheets were also made available to the Respondent/Petitioner. In these circumstances, while the note sheets cannot be relied upon as orders or as the basis of legitimate expectation, in the http://www.judis.nic.in 20 of 33 W.A.No.609 of 2020 peculiar circumstances narrated herein, they cannot be ignored and may be examined for the limited purpose of testing the contention of the Respondent that the charges against him were not proved, the Appellants were also aware of the same and, therefore, the order of the learned single Judge does not warrant interference. In Note Sheet No.121, which was issued by the Deputy Inspector General [Personnel], Mr.Hemant Desai, on 24.02.2004, it is stated as follows:
NOTE SHEET No.121 DIRECTORATE GENERAL BORDER SECURITY FORCE (CONFIDENTIAL SECTION) MHA may please refer to remark of the Director (pers) and approval of JS(P) at NSP-92/n.
2. Briefly to recapitulate the case, a SCOI was conducted against Shri T.Mani, to enquire into his alleged connivance in smuggling activities It was decided to terminate the services of the Officer under the provision of Rule-20 of BSF Rules 1969 (as amended) based on the evidence, facts available and circumstances of the case. A SCN was issued to him with the approval of MHA (NSP-37/38). The reply submitted by the officer has been discussed from NSP 50-65/n. Meanwhile http://www.judis.nic.in 21 of 33 W.A.No.609 of 2020 the officer sought DG's interview , which he availed at Kolkata. Thereafter, his case was reviewed in this file, and it was decided to initiate regular disciplinary action instead of imposing Rule 20. Accordingly, case was re-submitted to MHA for the purpose. The approval of JS (P) regarding initiation of disciplinary action against the officer may be seen at NSP-9/n.
3. Thus, a draft order revoking the process U/R-20 was sent for vetting. CLO (D&L) opined that revoking the process U/R-20 would be incongruent to the direction of High Court, which had specially directed the DG and the Govt to discharge the obligation as per provision of BSF Rule-20. The remarks of CLO (D&L) may please be seen at NSP-96 and 99/N. As such, case was referred to Senior Government Counsel (SGC) who dealt the case on behalf of UOI (through Ftr HQ BSF S/B), who in turn intimated the legal opinion, which may be seen at para-94 at NSP-105.
4. After having received the legal opinion Shri Shib Das Banerjee, Barrister-at-Law and opinion of Shri Surinder Kumar Kapoor, Addl SGC High Court, Kolkata (P-301/c) the matter has been critically examined in consultation with CLO http://www.judis.nic.in 22 of 33 W.A.No.609 of 2020 BSF from NSP 105/n and onwards, while DG after considering the service of Officer and taking into consideration the facts and circumstances of the case in totality has decided that his retirement from service will suffice the ends of Justice as such DG has desired to recommend the case of officer to the MHA to retire the officer compulsorily from service with pensionary benefit U/R 20 (4) (c) of BSF Rules 1969 (as amended).
Approval of DG may please been seen at Para 117/n (NSP-111/n).
5. Shri T. Mani, Comdt is presently under suspension w.e.f. 03.01.2002 to till date and in the instant case, officer is being compulsorily retired as a penalty being imposed on him and as such the suspension period from 03/01/2002 to till date of compulsory retirement is to be treated as “not spent on duty”. The approval of DG to this effect may please be seen at Para-161/n NSP-118.
6. MHA is, therefore, requested to kindly obtain the approval of Central Govt. for compulsory retirement of Shri T.Mani, Comdt from services with pensionery benefit, with immediate effect U/R 20(4)(c) of BSF Rule 1969 (as amended) and the period of suspension w.e.f. http://www.judis.nic.in 23 of 33 W.A.No.609 of 2020 03/01/2002 to till date of compulsory retirement be treated as “not spent on duty”.
14. From this note sheet, it is evident that the case of the Respondent was reviewed upon receipt of his reply to the show cause notice. Upon review, a draft order to revoke the proceedings under Rule 20 was sent for approval to the Legal Department. The only reason cited for not revoking the proceedings under Rule 20 was the order of the Calcutta High Court to effect that the Government and the Director General should discharge their obligations as per Rule 20 of the BSF rules. Even so, the Appellants proceeded to obtain the opinion of a barrister-at-law and that of the Additional Solicitor General of India, Calcutta High Court. On that basis, the case of the Respondent was critically examined in consultation with the CLO of the BSF and it was decided that the interest of justice would be satisfied if he is subjected to compulsory retirement from service with pension benefits under Rule 20(4)(c) of the BSF Rules. Therefore, it was recommended that the approval of the Central Government be taken for such purpose. However, the Ministry of Home Affairs, by a communication from the Section Officer [Personnel-III Desk], stated that serious charges of connivance with smugglers were proved against the officer and, therefore, http://www.judis.nic.in 24 of 33 W.A.No.609 of 2020 he should not be granted retirement with full pension benefits as proposed by BSF. Instead, the Ministry of Home Affairs proposed that he be removed from service without pension benefits. This note is dated 08.03.2004 and the matter was remitted for re-consideration by the BSF.
15. Upon such reconsideration, in Note Sheet No.124, the Additional Deputy Inspector General (Confidential) reiterated that the SCOI is only a fact finding body, the provisions of the Evidence Act are not applicable to the proceedings and, therefore, it cannot be said that the charges against the officer were proved. By taking into consideration the fact that the officer had already served the BSF for about 21 years, it was once again recommended that he be given compulsory retirement with pension benefits under Rule 20(4)(c) of the BSF Rules.
16. Note Sheet No.126 reiterates the decision to recommend the compulsory retirement of the officer with pension benefits. The note sheet, inter alia, records as follows:
NOTE SHEET NO.126 DIRECTORATE GENERAL, BORDER SECURITY FORCE http://www.judis.nic.in 25 of 33 W.A.No.609 of 2020 (PERSONNEL DIRECTORATE) MHA may refer to remarks of the Director (Pers) as at NSP 123
2. The allegations regarding connivance of Shri T.Mani, Commandant (under suspension) was inquired into by a COI and based on the inquiry the proposal was initially mooted for terminating the services of the officer under BSF Rule 20.
3. Subsequently a proposal was forwarded to the MHA to recall the process of compulsory retirement and to proceed with regular disciplinary action with a view to afford the officer the opportunity of a fair trial, which was approved by the MHA as on 23.10.2003 as at NSP 92.
4. However, as a result of an order passed by the Hon'ble High Court of Kolkata on a writ petition filed by the officer it become imperative to revert back to the original proposal of termination of services under BSF Rule 20.
5. Accordingly, the case was resubmitted to the MHA vide our note as at NSP 121 on which MHA has desired that the DG may re-examine as to why the officer's services can not be terminated without pensionary benefits rather than with pensionary benefits as proposed by the BSF.
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6. The decision to recommend termination of services of the officer under BSF Rule 20(4)(c) with pensionary benefits was a considered decision keeping in view the facts and circumstances of the case. In this connection please refer remarks of the ADG.
7. A COI is only a fact finding body and blaming of a person by a COI would only mean that a prima facie case has been established justifying further investigation/trial.
8. In view of the foregoing, in the instant case, an inference that the charges have been proved against the officer is incorrect.
9. The officer has been removed from command and he is under suspension since 3rd Jan 2002 and remain attached with Ftr/Sector Hqs for disciplinary proceedings.
10. The officer has already put in 21 years of service, apart from 9 years of Short Service Commission tenure in the Army. He has 7 years of service left before the age of superannuation.
11. It is a fact that disciplinary proceedings are in progress against the officer on charges of attempt to commit suicide.
12. It was after considering the whole gamut of issues involved and the peculiar facts and http://www.judis.nic.in 27 of 33 W.A.No.609 of 2020 circumstances of this case that the proposal to retire the officer compulsorily with pensionary benefits was mooted to the Ministry.
13. In view of the observations of the MHA as at NSP 123, the case was again re-examined in totality and it has been decided to reiterate our recommendations for compulsorily retiring the officer under BSF Rule 20(4) (c) with pensionary benefits as it is felt that the penalty of compulsory retirement, 7 years before his date of superannuation, standing alone, would meet the ends of justice in this particular case.
14. Approval of the DB may be seen at 13/N on NSP 125.
15. MHA may decide.
16. Early decision is solicited as the Hon'ble High Court of Kolkatta vide its order dated 29.8.03 (252/C) had directed the department and the Government to finalize decision under BSF Rule 20 within six months.”
17. Based on the reiteration of the recommendation for compulsory retirement with pension benefits, the matter went to the Home Ministry once again. The Section Officer of the Ministry of Home Affairs http://www.judis.nic.in 28 of 33 W.A.No.609 of 2020 set out two options namely, compulsory retirement with pension benefits and compulsory retirement without pension benefits. Eventually, the Ministry of Home Affairs decided to terminate his service with immediate effect under Rule 20(4)(b) of the BSF Rules without pension benefits.
18. Upon perusal of the documents on record, the following material facts emerge:
(i) the Respondent was not prosecuted for the alleged act of aiding and abetting smugglers in the area under his control.
(ii) a SCOI and additional SCOI were constituted to enquire into the charges against the Respondent.
(iii) a conscious decision was taken not to constitute a Security Force Court to prove the charges on the basis that it would be inexpedient and impracticable to do so.
(iv) upon receipt of the report of the SCOI and the reply dated 24.09.2002 to the show http://www.judis.nic.in 29 of 33 W.A.No.609 of 2020 cause notice dated 21.08.2002, it was decided that the charges were not proved. Consequently, it was decided to revoke the proceedings under Rule 20 of the BSF Rules. However, the Chief Law Officer decided that it would not be in consonance with the order of the Calcutta High Court to the effect that the provisions of Rule 20 of the BSF Rules should be followed by the Director General.
(v) After obtaining the approval of a barrister-at-law and that of the Additional Solicitor General, the Chief Legal Officer and the Deputy Inspector General re-examined the matter and decided that the interest of justice would be fulfilled by directing compulsory retirement with pension benefits as per Rule 20(4)(c) of the BSF Rules.
(vi) In spite of the request by the Ministry of Home Affairs to reconsider the matter, the BSF by communication dated 11.03.2004 http://www.judis.nic.in 30 of 33 W.A.No.609 of 2020 (Note Sheet No.124) and 17.03.2004 (Note Sheet No.126) reiterated the earlier recommendation.
(vi) However, the Ministry of Home Affairs took a decision to terminate the services of the Respondent as per Rule 20(4)(b) of the BSF Rules.
19. The learned counsel for the Appellants relied upon the decisions in Major Dharam Pal Singh and Harjeet Singh Sandhu to contend that Rule 20 of the BSF Rules is analogous to Rule 14 of the Army Rules and may be invoked without constituting a Security Force Court when it is inexpedient or impracticable to do so. There can be no quarrel with the said principle. However, unlike in those cases, the documents on record herein disclose that the Appellants were not only conscious that the charges were not proved but also that the ends of justice would be fulfilled if the Respondent is subjected to compulsory retirement with pension benefits as per Rule 20(4)(c) of the BSF Rules instead of applying Rule 20(4)(b) thereof. Indeed, they reiterated such recommendation upon careful re- consideration of the facts and circumstances including his long service. http://www.judis.nic.in 31 of 33 W.A.No.609 of 2020 When the facts and circumstances are viewed in totality, including the attainment of the age of superannuation by the Respondent in 2011, we are of the view that the order of the learned single Judge does not warrant interference. We may, however, clarify that the reference to the note sheets, in this case, turns on the peculiar facts and circumstances of this case and for the limited purpose, as set out above, and should not be construed as laying down a precedent or principle of general application.
20. In the result, the writ appeal fails and the same is dismissed. Consequently, the connected miscellaneous petition is closed. No costs.
(A.P.S.,CJ,) (S.K.R.,J,)
13.10.2020
Speaking Order
Index :Yes
Internet :Yes
kal
http://www.judis.nic.in
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W.A.No.609 of 2020
THE CHIEF JUSTICE
and
SENTHILKUMAR RAMAMOORTHY.J.,
kal
Pre-Delivery Judgment in
Writ Appeal No.609 of 2020
&
C.MP.No.8432 of 2020
13.10.2020
http://www.judis.nic.in
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