Delhi High Court
Jeevan Singh Bathyal vs Union Of India & Anr. on 21 December, 2020
Equivalent citations: AIRONLINE 2020 DEL 1767
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Asha Menon
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 21st December, 2020
+ W.P.(C) 9849/2020
JEEVAN SINGH BATHYAL ..... Petitioner
Through: Dr. Surender Singh Hooda, Adv.
Versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr. Sushant Singh, Adv. for Mr.
Vishal Bakshi, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
JUSTICE RAJIV SAHAI ENDLAW
1. The petitioner, appointed as a Constable with the respondents Border
Security Force (BSF) on 7th April, 2011, has filed this petition impugning the
sentence dated 5th December, 2019 of dismissal from service, imposed by the
Summary Security Force Court (SSFC), and countersigned by Deputy
Inspector General (DIG), S.H.Q., Kolkata on 8th January, 2020 as well as the
order dated 29th October, 2020 in the statutory petition/ appeal preferred by
the petitioner and seeks reinstatement in service, with all consequential
benefits.
2. The petitioner was chargesheeted by the SSFC on the following
charge:
W.P.(C) No.9849/2020 Page 1 of 8
"CHARGE SHEET
The accused No.112769158 Const/GD Jeevan Singh Bathyal, F Coy, 64
Bn BSF is charged with:
BSF ACT 1968, SEC 40 AN OMISSION PREJUDICIAL TO
GOOD ORDER AND DISCIPLINE
OF THE FORCE
In that he,
On 17th Nov.2019 at about 1730 hrs,
while performing 2nd 2nd Shift OP duty
from 1200 hrs to 1800 hrs at OP
Point No.06 in the AOR of BOP
Gunarmath, failed to perform his duty
properly and was negligent enough
which resulted in an exfiltration bid
by Bangladeshi Nationals, wherein a
heavy iron ladder was placed on the
fence to scale over the fence and
attempt was made in his presence to
cross the fence in close proximity to
his place of duty. He also didn't take
any interest in apprehending these
illegal migrants, which resulted in few
illegal migrants managing to
escape."
3. The SSFC found the petitioner guilty of the charge and punished the
petitioner with the sentence of dismissal from service.
4. The counsel for the petitioner has contended that he is challenging the
dismissal of the petitioner from service on two grounds; firstly, on the
ground of unreasonableness and secondly, on the ground of proportionality.
5. We have requested the counsel for the petitioner to first address us on
proportionality.
W.P.(C) No.9849/2020 Page 2 of 8
6. The counsel for the petitioner has contended that, (i) the conduct of the
petitioner has otherwise been good; (ii) no integrity issues have been found
or proved against the petitioner; (iii) the Sub Inspector (SI) who was also on
duty along with the petitioner and who appeared as a witness before the
SSFC, deposed that he could not apprehend the infiltrators because he did
not jump into the naala; (iv) it is thus not as if the petitioner alone is to be
blamed; (v) no action has been taken against the other two personnel who
were on duty at the time of the incident along with the petitioner; and, (vi)
the petitioner would have been satisfied if all had been dismissed from
service, but the petitioner only has been targeted.
7. We have enquired from the counsel for the petitioner, whether not the
misconduct of negligence while on duty to guard the Indo-Bangladesh
Border, and across which, it is matter of common knowledge, infiltration at a
large scale takes place, is not serious enough to warrant a dismissal from
service. We are further of the opinion that the officers / personnel of the
force entrusted with guarding the said border, unless, while on duty, act with
complete vigilance and commitment, it will be difficult to guard the border
and infiltrations, which to the extent of becoming a political issue, will
continue. We are thus of the opinion that the ground of proportionality is not
available to the petitioner. Even otherwise the ground of proportionality
entitles a petitioner to contend the punishment to be disproportionate to the
misconduct and does not permit comparison with others against whom mere
allegations, as distinct from findings of fact exist.
8. The counsel for the petitioner has next, on the ground of
unreasonableness contended that PW-2, being the Assistant Commandant,
Incharge of the border at that place, himself in his cross-examination
W.P.(C) No.9849/2020 Page 3 of 8
deposed that, (i) on checking the petitioner immediately after the incident,
nothing objectionable was found from his possession; (ii) during day time
the neighbouring two guard points are not occupied and half of the area is
looked after from the point where the petitioner was posted; so the area of
responsibility increases and there are chances of infiltration / infiltration
bids; and, (iii) that there had been no earlier complaint against the petitioner.
9. We have however drawn the attention of the counsel for the petitioner
to examination-in-chief of the said witness, where he has deposed, that (a) on
receiving a call, he reached the subject guard post at 1730 hours, where he
found one heavy iron made ladder to have been placed; (b) the petitioner was
on guard duty at a distance of about 35-40 yards from the place of incident;
(c) it was not possible to place the ladder unless the person on duty had
connived; (d) the place where the ladder had been put was too close to the
point of duty of the petitioner; (e) the SI aforesaid also present at the time
when PW-2 reached the spot, informed him that the petitioner did not show
any interest to apprehend the illegal migrants; and, (f) the illegal migrants
caught, informed that they had paid money to a tout for crossing over to
India.
10. The counsel for the petitioner has contended that what was deposed by
the PW-2 Assistant Commandant was on the basis of what he was informed
but else in cross-examination he has opined that the area of responsibility
where the petitioner was on guard, was large and which led to chances of
infiltration / infiltration bid.
11. We are afraid, we are not entitled to go into the question, whether the
area of responsibility was large, leading to possibilities of the guard on duty
not being able to detect infiltration/infiltration bids. We have to presume
W.P.(C) No.9849/2020 Page 4 of 8
that when it is day time, the guards are entrusted with the larger area of
vigilance / supervision, it is within their capability / capacity and if any
illegal migration takes place from the area under the supervision, the guards
cannot be heard to raise the said ground then.
12. We have also asked the counsel for the petitioner, whether we, sitting
in writ jurisdiction, are entitled to interfere with the findings of facts arrived
at by the Disciplinary Authorities at as many as four stages. In our opinion,
the scope of interference in writ jurisdiction with such decisions is confined
to any error of procedure prescribed in conducting the enquiry or in the
decision making process or perversity in findings of fact and not on the
merits of the decision. In writ jurisdiction, all we have to examine is whether
there was some evidence on the basis whereof the authority entrusted with
the duty to hold the inquiry and which evidence reasonably supports the
conclusion reached. It is not the duty of the High Court, in a petition under
Article 226, to review the evidence and to arrive at an independent finding
on the evidence. The Departmental Authorities are the sole judges of facts
and if there is some legal evidence on which their findings can be based, the
adequacy or reliability of that evidence is not a matter which can be
permitted to be canvassed before the High Court. In exercising judicial
review in disciplinary matters, the High Court has to follow the rule of
restraint, as the determination whether a misconduct has been committed,
lies primarily within the domain of the Disciplinary Authority; deference to a
finding of fact by the Disciplinary Authority is a recognition of the idea that
it is the employer who is responsible for the efficient conduct of their service
and that disciplinary enquiries are not governed by strict rules of evidence
which apply to judicial proceedings; the standard of proof is hence not the
W.P.(C) No.9849/2020 Page 5 of 8
strict standard which governs the criminal trial, of proof beyond reasonable
doubt, but a civil standard governed by a preponderance of probabilities.
Reference in this regard may be made to State of Andhra Pradesh Vs. S.
Shree Rama Rao AIR 1963 SC 1723, State of Andhra Pradesh Vs. Chitra
Venkata Rao (1975) 2 SCC 557, Union of India Vs. G. Ganayutham (1997)
7 SCC 463, Apparel Export Promotion Council Vs. A.K. Chopra (1999) 1
SCC 759, R.S. Saini Vs. State of Punjab (1999) 8 SCC 90, Ashok Kumar
Vs Sita Ram (2001) 4 SCC 478, Registrar General, High Court of
Judicature of Madras Vs. K. Muthukumarasamy (2014) 16 SCC 555,
Director General of Police, Railway Protection Force Vs. Rajendra Kumar
Dubey 2020 SCC OnLine SC 954 and State of Rajastan Vs. Heem Singh
2020 SCC OnLine SC 886.
13. The counsel for the petitioner has drawn our attention to the dicta of
this Court in Ramesh Chander Vs. Union of India (2016) 232 DLT 113
(DB), where this Court, in paragraphs 28 and 29 of the judgment, after
perusing the record and statement of witnesses, found the case to be of no
evidence against the petitioner.
14. We find, that why this Court interfered in that case was because the
petitioner therein had been meted out the penalty on the basis of an opinion
of the witness that delay of 5 minutes by the petitioner in that case in
reaching the scene of the incident was deliberate and by reasoning that there
was no evidence of deliberate attempt by the petitioner in that case to delay.
On the contrary, in the present case, we find the petitioner to have, in his
own statement before the SSFC stated that he was alerted about the
infiltration on hearing the sounds of "pakro" (catch) and otherwise he was
concentrating on the possibility of infiltration at another point. The
W.P.(C) No.9849/2020 Page 6 of 8
petitioner has thereby admitted that he was not paying attention to the entire
area under his supervision. The incident of infiltration otherwise is not
disputed by the petitioner.
15. We also find from a reading of the testimony of the 3rd, 5th and 6th
prosecution witnesses at pages 47, 51 and 53 respectively of the paper book,
that there was ample evidence for the charge on which the petitioner has
been dismissed.
16. We thus do not find the present to be a case of the petitioner having
been meted out the punishment without the evidence being on record. Once
there is evidence found on record, the weightage to be given thereto is not in
the domain of the writ court and the conclusions to be drawn therefrom are
in the exclusive domain of the Disciplinary Authorities who are well versed
with the spot and with the duties which are required to be performed.
17. The counsel for the petitioner has then contended that unlike in the
Armed Forces where outside the Disciplinary Authorities, a forum of appeal
in the form of the Armed Forces Tribunal (AFT) has been set up, there is no
such forum for paramilitary forces like BSF; it is argued that for this reason,
a little latitude is required to be given in writ jurisdiction.
18. We are afraid the writ jurisdiction cannot be converted into appellate
jurisdiction.
19. If the grievance of the personnel of the paramilitary forces is of
discrimination viz-a-vis Armed Forces, the same has to be raised separately
and the same cannot enlarge the scope of interference in writ jurisdiction.
20. The counsel for the petitioner has lastly drawn attention to the
impugned order dated 29th October, 2020 of the Director General of BSF,
where the contention of the petitioner that on the subject date i.e. 17th
W.P.(C) No.9849/2020 Page 7 of 8
November, 2019 he was on camp guard duty from 0600 hours to 1200 hours
and was ordered to perform OP duty from 1200 hours to 1600 hours and that
it was not humanly possible to maintain high level of alertness after
continuously performing hard labour duty for almost 12 hours at a stretch, is
noticed.
21. The very fact that the Director General, in the impugned order has
noticed the aforesaid contention of the petitioner and after noticing the same
has dismissed the revision petition of the petitioner, again shows that the
final order of dismissal from service is after proper consideration of all facts,
findings and contentions.
22. It is also significant that the petitioner, when appeared before the
SSFC to depose, did not give the same as a ground.
23. No case for interference is made out.
Dismissed.
RAJIV SAHAI ENDLAW, J.
ASHA MENON, J. DECEMBER 21, 2020 'gsr'..
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