Rajasthan High Court - Jodhpur
Bhagaram Bishnoi vs Union Of India on 14 November, 2022
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
(1 of 9) [CW-5731/2020]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No.5731/2020
Bhagaram Bishnoi S/o Shri Harchand Ram, Aged About 35 Years,
Presently Posted At 149 Battalion, Bsf, Jaisalmer (Raj.).
----Petitioner
Versus
1. Union Of India, Through The Secretary, Minister Of Home
Affairs, New Delhi (Raj.).
2. The Director General, Boarder Security Force, Block No.
10, Cgo Complex, Lodhi Road, New Delhi 110003.
3. The Deputy Inspector General (Medical)/ms, Composite
Hospital, Frontier Headquarter, Boarder Security Force,
Jodhpur.
----Respondents
For Petitioner(s) : Mr.Jog Singh Bhati, Adv.
For Respondent(s) : Mr.Prakash Choudhary, Senior
Standing Counsel for Union of India.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order 14/11/2022 REPORTABLE The instant writ petition has been filed by the petitioner challenging punishment order dated 23.08.2019, whereby respondents exercising their powers under Section 40 of the Border Security Force Act, 1968 (hereafter the BSF Act) awarded punishment of "fine of pay of 7 days and recovery of cost of 10 Ltrs. of diesel, as per the prevailing market rates".
The petitioner has pleaded that he was serving in the respondent-BSF and was posted at Composite Hospital, Frontier Headquarters, Jodhpur.
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(2 of 9) [CW-5731/2020] The petitioner has pleaded that while he was working in the Transport Branch of the Headquarters, he found in the month of April, 2018 a damaged fuel tank of one of the Ambulance of the Hospital and as per instructions received by the petitioner from Head Constable (M.T.), he immediately removed fuel from the tank to save further leakage and the petitioner after taking out the fuel from the said Ambulance, poured it in the oil tank of another vehicle.
The petitioner has pleaded that at the time of refilling the fuel tank, some personnel of the Vigilance Branch took photographs of petitioner with jerrycans and accordingly, made a case against the petitioner.
The petitioner has pleaded that the Vigilance Branch made Preliminary Enquiry against the petitioner and recommended to conduct regular enquiry.
Learned counsel for the petitioner submitted that the respondents issued an order dated 07.05.2019, whereby it was directed to conduct Court of Inquiry in respect of the alleged incident of removing fuel from diesel tank.
Learned counsel for the petitioner submitted that the Inquiry Officer was appointed and he conducted enquiry. He recorded the statements of different persons and also took into account the various documents. Learned counsel submitted that the Inquiry Officer submitted his report and found the petitioner 'not guilty'.
Learned counsel for the petitioner submitted that the person, who had given instruction to the petitioner i.e. Head Constable Ramveer, had also informed the Authorities during inquiry, while appearing as witness No.4, that instructions were (Downloaded on 18/11/2022 at 08:35:25 PM) (3 of 9) [CW-5731/2020] given to the petitioner to take out fuel from the tank and same was ordered to be put in another truck.
Learned counsel submitted that the inquiry report was submitted to the Competent Disciplinary Authority, however, the Competent Disciplinary Authority exercised its power under Section 40 of the BSF Act and found that the alleged action of the petitioner, was prejudicial to good order and discipline of the force and as such, the impugned fine was imposed.
Learned counsel for the petitioner has made following submissions:-
(a) The alleged misconduct and shifting of the fuel from one tank to another tank of a Vehicle was done, as per the instructions received from the Higher Official and the said Official himself admitted that the said jerrycan was given to the petitioner to transfer the fuel from one truck to another Truck.
(b) The witnesses who were examined during enquiry, all of them gave the statements in favour of the petitioner and none of the witnesses supported the allegation levelled against the petitioner
(c) No financial loss of any kind has been caused to the respondents and in absence of any loss being caused, the punishment is wholly unjustified and,
(d) Initially Preliminary Enquiry was conducted by the respondents and under Rule 43 of the BSF Rules summary proceedings were undertaken and the charge framed against the petitioner was in respect of removal of fuel from Ambulance and then filling the same in the diesel tank of a truck, without any prior permission of the Competent Authority and further the petitioner was alleged to have repaired the diesel tank from Civil (Downloaded on 18/11/2022 at 08:35:25 PM) (4 of 9) [CW-5731/2020] Mechanic, without any Work Order at his own level and the same was termed as an act prejudicial to good order and discipline of the force and as per circumstantial evidence and Court of Inquiry, findings of removal of fuel, was with malafide intent.
Learned counsel submitted that in the impugned order, the petitioner has been found guilty of getting work of repairing of truck done at his own level and further there is no allegation of having any mala-fide intent to commit the offence.
Learned counsel submitted that though Section 40 of the BSF Act gives power to the Authorities to take disciplinary action and pass punishment order if the act is prejudicial to good order and discipline of the force, however, the same power does not include in its compass to punish a person who has not committed any offence or can be termed as an act prejudicial to good order and discipline of the force.
Per contra, learned counsel for the respondents submitted that the Authorities have not committed any error in passing the punishment order and the Authorities after due application of mind, have come to the conclusion that the alleged act of transferring the fuel by the petitioner without prior written permission of the Competent Authority tantamounts to violating the discipline of the force and as such, the Disciplinary Authority after taking into account all the factors, passed the order impugned.
Learned counsel for the respondents submitted that during Preliminary Enquiry, the petitioner himself had admitted his own guilt and irregularity committed by him and as such, the Authorities in spite of such admission by the petitioner, conducted (Downloaded on 18/11/2022 at 08:35:25 PM) (5 of 9) [CW-5731/2020] a proper enquiry and have taken a suitable action against the petitioner.
Learned counsel for the respondents further submitted that the photographs and investigation done, during enquiry, also revealed that the petitioner had mala-fide intention to transfer the fuel as the jerrycan in which the fuel was filled, was having coverage and such cloth was wrapped in order to commit the crime of using the fuel for other purposes.
Learned counsel submitted that it is the sole satisfaction of the Disciplinary Authority, after considering the relevant record and upon finding that misconduct is committed by the members of the Disciplined Force, necessary punishment can be imposed.
Learned counsel submitted that in Disciplined Force, no leniency or indiscipline can be tolerated. Learned counsel for the respondents further submitted that the punishment, which has been imposed upon the petitioner, is too lenient as power given under Section 48 of the BSF Act provides for imposition of an imprisonment on a delinquent upto a term of 7 years or in some cases, less punishment can be imposed.
I have heard the submissions made by learned counsel for the parties and perused the material available on record.
This Court, before adverting to the respective submissions made, deems it proper to quote the report of the Enquiry Officer:-
Opinion of the Court:-
d½ vkj{kd@pkyd Hkxkjke drZO; fu"B deZpkjh gSA [k½ vkj{kd Hkxkjke us rsy fudkyus o iqu% Mkyuk fnu ds le; fd;k FkkA (Downloaded on 18/11/2022 at 08:35:25 PM) (6 of 9) [CW-5731/2020] x½ vkj{kd@pkyd Hkxkjke us eq[; vkj{kd dks crkdj gh ;g dk;Z fd;k FkkA ?k½ vkj{kd Hkxkjke ds }kjk fd;k dk;Z mldh fu;r es [kksV ugh n'kkZrk gSA p½ ,Ecwysal dk vfr'kh?kz Bhd djokdj iqu% Mhty okfil Mkydj pkyw voLFkk esa ykuk ,d ftEesnkj vkj{kd pkyd dh Hkwfedk n'kkZrk gSA vr% dksVZ dh n`f"V ls funksZ'k lkfcr gksrk gSA ysfdu vkj{kd@pkyd Hkxkjke us bl dk;Z dks djrs le; fu;eks dk ikyu ugh fd;kA bl fy, vkj{kd@pkyd Hkxkjke dks Hkfo"; esa ljdkjh dk;Z dks fu;ekuqlkj gh djus ds fy, lykg@psrkouh nsuh pkfg,A This Court, on bare perusal of the aforesaid report/opinion, finds that the petitioner has been found to be a person with complete dedication and having good integrity. The said report further reveals that the act of taking out fuel and to putting it back in another vehicle, was done as per the instructions received by the petitioner from the Head Constable and the same did not show any mala-fide intention of the petitioner. The said report further shows that the petitioner was found not guilty of the charge levelled against him, however, the Officer added in the end of the report that the petitioner did not follow the Rules and was advised to discharge his Official duties, as per the Rules in future and advise/warning was required to be given to him.
This Court finds that opinion/finding of the Court nowhere makes a mention that the petitioner had any mala-fide intention of committing an offence of shifting the fuel from one tank to another tank of the vehicle.
This Court further finds that the summary proceedings as per Rule 43 of the BSF Rules had framed a specific charge against the petitioner of removing the fuel from one tank of vehicle to another vehicle, without prior permission and further (Downloaded on 18/11/2022 at 08:35:26 PM) (7 of 9) [CW-5731/2020] the petitioner was alleged to get the fuel tank repaired from Civil Mechanic without any order, at his own level, and the same was found to be an act prejudicial to good order and discipline of the force, this Court finds that the Disciplinary Authority has nowhere found the petitioner guilty of getting the diesel tank repaired from civil mechanic, without any work order at his own level and as such, in absence of such allegation, act of the petitioner has been treated to be prejudicial to good order and discipline of the force.
This Court further finds that the summary proceedings further recorded that as per circumstantial evidence and the Court of Inquiry finding, the petitioner removed the fuel with a mala-fide intent.
This Court is at loss to comprehend as how the Disciplinary Authority has reached to the conclusion that the petitioner has committed a misconduct and his act, in any manner, has been suffering from mala-fide intention.
This Court finds substance in the submission of learned counsel for the petitioner that the witnesses, who were examined during the disciplinary proceedings, nowhere proved the charge against the petitioner, wherein he was found to be involved in taking out the fuel in order to misuse it or misappropriate or to use the same for any other purposes.
The submission of learned counsel for the respondents that prior permission of the Higher Officials/Authorities was required to shift the fuel from one tank of the vehicle to another and even if one witness supported the theory of the petitioner of having obtained verbal instructions of Higher Officers, the same would not authorize the petitioner to take out the fuel, suffice it to say by this Court that if no loss has been caused and further no (Downloaded on 18/11/2022 at 08:35:26 PM) (8 of 9) [CW-5731/2020] allegation has been proved against the petitioner of using the fuel for any other purposes, the findings of the Disciplinary Authority to punish the petitioner are without any basis and material.
The submission of learned counsel for the respondents that the Disciplinary Authority is fully equipped to impose the appropriate punishment and act of the delinquent is treated to be prejudicial to the good order and discipline of the force and the Court may not substitute its own finding in place of satisfaction of the Authorities in respect of the members of the Disciplined Forces, there is no quarrel on the proposition that Disciplinary Authority is the best person to adjudge the conduct of a delinquent and if material is provided and charge is proved against the delinquent, then such person is required to be suitably punished.
This Court in the present facts of the case finds that only on ipse dixit of getting charge proved, the Authorities reached to conclusion that the petitioner has not acted in a proper manner. This Court also finds that the Disciplinary Authority even did not consider the report of the Enquiry Officer and only on making observation by the Enquiry Officer that the petitioner was to be more careful and he was to be warned, the same could not have resulted into passing the punishment order.
The submission of learned counsel for the respondents that the petitioner has been visited with a lesser penalty and as per Section 40 of the BSF Act, the alleged conduct of the petitioner could have led to the imprisonment and as such, the petitioner is not entitled for any relief under Article 226 of the Constitution of India, this Court finds that the punishment, which has been imposed on the petitioner, will definitely operate against (Downloaded on 18/11/2022 at 08:35:26 PM) (9 of 9) [CW-5731/2020] him and the petitioner will of course suffer in matter of his future prospects and the punishment, which has been imposed contains a clause of fine of pay of 7 days and recovery of cost of 10 Ltrs. Diesel, as per prevailing market rates, however, the power being exercised by the Authorities under Section 40 of the BSF Act, will have a serious impact on career of the petitioner.
This Court, accordingly, finds that the penalty order dated 23.08.2019 is not legally sustainable and the same is quashed and set aside. All the consequences on account of setting aside the impugned order dated 23.08.2019, will flow and the petitioner will accordingly get all the consequential benefits.
Accordingly, the present writ petition stands allowed.
(ASHOK KUMAR GAUR), J Himanshu Soni/388 (Downloaded on 18/11/2022 at 08:35:26 PM) Powered by TCPDF (www.tcpdf.org)