Mr. Ankur Chhibber, Adv v. UNION OF INDIA ANR

Judgment

1. Following proceedings under Rule 20(2)1 read with Rule 20(4)2 1 (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 opinion, its disclosure is not in the interest of the security of the State. 2 (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) (b) (c) (d) dismissed from the service; or removed from the service; or retired from the service; or called upon to resign. W.P.(C) 5629/2021 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:14.11.2025 13:48:54 of the Border Security Force Rules, 19693, the petitioner stands compulsorily retired from service by order dated 18 May 2021, passed by the Deputy Inspector General4 (Pers) of the Border Security Force5.

2. The incident which culminated in the compulsorily retirement of the petitioner from service took place on 2 February 2016, when the petitioner was posted in Bhuj. It was alleged, and has been found by the impugned order, that the petitioner had entered into extra marital intimate relations with one Const X6. It was further alleged that certain objectionable photographs, reflecting the petitioner in a compromising position with Const X were circulated on social media groups.

3. On the basis of the said allegations, a Staff Court of Inquiry7 was directed vide order dated 4 February 2016, followed by an Additional Staff Court of Inquiry8 vide order dated 30 June 2016. The petitioner, admittedly, participated in the SCOI as well as the Additional SCOI, which proceeded in compliance with the applicable Rules in that regard.

4. Following the SCOI and Additional SCOI, the file was put up to the Inspector General9, BSF, who appended following remarks: “1. I partially agree with the findings and opinion of the court. 3 “the BSF Rules” hereinafter 4 “DIG”, hereinafter 5 “BSF”, hereinafter 6 Name withheld 7 “SCOI”, hereinafter 8 “Additional SCOI”, hereinafter 9 “IG”, hereinafter W.P.(C) 5629/2021 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:14.11.2025 13:48:54

2. In the month of Oct, 2013, Shri Om Prakash, 2IC, WW BSF Bhuj alongwith CT X, 182 Bn BSF (then 50 Bn SBF) had gone to Ludhiana to attend a marriage. After the marriage they got late and stayed in a hotel in Ludhiana where they got intimate with each other and had taken photographs of each other from the mobile phone of CT X. These photographs were saved in the micro SD Card of CT X which was later on stolen by someone from her mobile phone. Subsequently, these obscene photographs were circulated in social media. The relationship between Shri Om Prakash and CT X was consensual.

3. Although, the relationship between Shri Om Prakash, 2IC and CT X was consensual and nobody has made any complaint against Shri Om Prakash, 2IC but, having extra marital relation with CT X is not only grave misconduct on the part of an officer but also unbecoming of an officer and in general against the discipline of the force. On the other hand, CT X is also blameworthy for misconduct which is in general against the discipline of the force.

4. I, therefore, direct:- i. Disciplinary action to be initiated against Shri Om Prakash, 2IC, WW Bhuj for abovementioned misconduct on his part which is in general against the discipline of the force. A case be ii. taken up with HQ SDG (WC), Chandigarh for initiating. disciplinary action against CT X, 182 Bn BSF (then 50 Bn BSF) for abovementioned misconduct.”

5. Following the aforesaid conclusions of the IG, BSF, orders were issued for Record of Evidence10 on 14 October 2016, followed by Additional Record of Evidence11 on 2 December 2016.

6. On the basis thereof, a show cause notice was issued to the petitioner on 19 March 2018, invoking Rule 20(2) of the BSF Rules, 1969, and alleging that the petitioner’s relationship with Const X, and the circulation of the photographs in that regard in social media, had 10 “ROE” hereinafter 11 “Addl ROE” hereinafter W.P.(C) 5629/2021 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:14.11.2025 13:48:54 adversely affected the discipline of the force and the morale of female members of the force. Opining that such a misconduct by the petitioner was not acceptable in a disciplined force, the Show Cause Notice communicated the satisfaction of the DG12, BSF, that the trial of the petitioner by a General Security Force Court13 under Section 40 of the BSF Act was inexpedient and that further retention of the petitioner in the BSF was undesirable. Copies of the record of the SCOI, Additional SCOI, ROE and Additional ROE were provided to the petitioner and the petitioner was called upon to show cause as to why action for termination of his services for misconduct be not initiated against him under Rule 20(4) of the BSF Rules. Inasmuch as the submissions of Mr. Ankur Chhibber, learned Counsel for the petitioner have pivoted around the invocation, by the DIG, of Rule 20(2) of the BSF Rules, we deem it appropriate to reproduce paragraphs 6 and 7 of the notice dated 19 March 2018, thus: “6. Whereas, the Director General, BSF having gone through the evidence on record considering the matter in its entirety is of the opinion that your extra marital relationship with above said Ct X, and circulation of your obscene photographs in compromising position with said Ct X in social media as brought out above has not only adversely affected the discipline of the Force, but also adversely affected the morale of female members of the Force, whose entry is being encouraged in the Force as per Government’s policy and such a grave misconduct by an officer of the rank of Second-in-Command cannot be accepted in a disciplined Armed Force ; and,

7. Whereas, in the facts and circumstances of the case, the DG BSF is satisfied that your trial by General Security Force Court for the said offence of committing an act prejudicial to good order and discipline of the Force u/s 40 of the BSF Act is inexpedient, but is of the tentative opinion that your further retention in the service Is undesirable; and.” 12 Director General 13 “GSFC”, hereinafter W.P.(C) 5629/2021 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:14.11.2025 13:48:54

8. The petitioner responded to the show cause notice. Following the submission of the response by the petitioner to the aforenoted show cause notice, the DIG, by order dated 18 May 2021, held the response of the petitioner to the show cause notice not to be satisfactory and, accordingly, conveyed the concurrence of the Competent Authority to compulsorily retire the petitioner from service under Rule 20(4)(c) of the BSF Rules.

9. Aggrieved thereby, the petitioner has instituted the present writ petition before this Court.

10. Pleadings in the petition have been completed. Written submissions have also been filed.

11. We have heard Mr. Ankur Chhibber, learned Counsel for the petitioner and Mr. Anshuman, learned Senior Panel Counsel for the respondents at length. Rival Contentions Submissions of Mr. Ankur Chhibber

12. Mr. Chhibber, with customary fairness, does not call upon this Court to embark on a re-appreciation of evidence. However, he has raised serious objections to the invocation, by the DIG, to Rule 20(2) W.P.(C) 5629/2021 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:14.11.2025 13:48:54 of the BSF Rules. Mr. Chhibber’s contention is that there is no tangible reason for invoking the said Rule, which is meant to be invoked only in exceptional cases and cannot be treated as providing a carte blanche whereby, for no valid reason, the GSFC can be dispensed with. He submits that bringing an officer’s employment to an end is a drastic action, and the dispensation of a GSFC prior thereto, has to be resorted to only in exceptional circumstances. He particularly submits that, having held ROE and an additional ROE, after evidence was on record, there was no justification for the respondents to dispense with the GSFC.

13. Mr. Chhibber has placed reliance, in this context, on the judgment of the Division Benches of this Court in Yacub Kispotta v Director General BSF14 and State of Rajasthan v Pankaj Kumar Chaudhary15 as well as the judgment of a Full Bench of the High Court of Manipur in State of Manipur v Laishram Sushil Singh16.

14. Mr. Chhibber has also pointed out that there was no complaint regarding the conduct of his client or of the relationship between his client and Const X, which was completely consensual in nature, either by any relative of Const X or by the petitioner’s wife. He further submits that, thereafter, relationship between the petitioner and his wife have also improved. Submissions of Mr. Anshuman 14 2015 SCC OnLine Del 12437 15 2021 SCC OnLine Del 2977 16 2024 SCC OnLine Mani 579 W.P.(C) 5629/2021 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:14.11.2025 13:48:54

15. Mr. Anshuman, in response to the submissions of Mr. Chhibber, submits that no case for inference by this Court, within the parameters of Article 226 of the Constitution of India, can be set to exist in the present case. He draws particular emphasis to the evidence rendered by the petitioner as Witness No. 1 in the SCOI, from which the following paragraphs have been particularly cited: “Some photograph of mine with M/CT X are in circulation in social media i.e whatsapp. I came to know about this fact on 2nd Feb’ 16. Mahila/CT X is presently posted to 50 Bn BSF at Khasa Amritsar. I have family relations with M/CT X and her parents. I have known them since last five years. We i.e myself and my family had been visiting their house in Talwandi Feozepur Punjab. Even her parents have been visiting my house in the BSF campus frequently. Both families have been celebrating festivals and functions together since last five years. Mahila/CT X has never been posted under my command or in same station. Regarding the photographs which went viral in the social media I would like to submit that I got intimate with M/CT X some two years back. It was consensual and I did not force her to be intimate with me. We took some selfies of that moment from her mobile phone. The photographs were saved it the micro SD card installed in her mobile phone. Approximately a month back I was informed by M/CT X that the micro SD card had been stolen from her mobile phone by someone, either from the barrack where she was putting up or from the Coy kote where she deposits the phone while going for duties. The person who stole the micro SD card from the phone has probably put the photographs on whattsapp, social media. I can only presume that SD card must have been stolen to malign M/CT X or to blackmail her. After the photographs became viral on whatsapp, I informed my wife about the about the complete episode and apologized to her. The matter has been sorted out with in the family. Mahila/CT X is unmarried and the intimacy was between two consenting adults. The photographs were taken from M/CT X’s mobile only. I did not have any photographs in my mobile. ***** Q. 1. What relationship do you have with M/CT X? Ans. My family has close family relations with M/CT X’s family. We developed intimacy approximately two years back W.P.(C) 5629/2021 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:14.11.2025 13:48:54 when we stayed in a hotel in Ludhiana after attending a marriage. ***** Q.3. When and where were these photographs, which have gone viral of whatsapp, taken? Ans. M/CT X and self had gone to attend a marriage of her friend in Oct 2013 near Ludhiana. After the marriage we got late and stayed in a hotel in Ludhiana, where we got intimate with each other. It was consensual. Q.4. Did your wife know about your relationship with M/CT X? Ans. She did not know about my relationship with X till the photographs had gone viral in the social media and I informed her.”

16. Mr. Anshuman submits that, in the face of the aforesaid admissions by the petitioner, there can be no question of any interference by this Court under Article 226 of the Constitution of India. Analysis

17. We have considered the submissions of both sides with due seriousness.

18. We may observe, at the outset, that a member of a paramilitary, or military, force, is expected to display the highest standards of propriety, conduct, and rectitude. The nation looks up to him. A disciplined soldier on the field cannot afford to be a profligate off it. Discipline is the very raison d’ etre of a member of the militia, and must inform his conduct in every sphere of life. High ethical and moral standards are required of a member of a military, or paramilitary force. The necessity of rectitude and propriety increases W.P.(C) 5629/2021 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:14.11.2025 13:48:54 proportionately with the ascendancy of the officer in the military echelons. An officer of questionable moral or ethical standards has no place in a military, or paramilitary, force.

19. Entering into an extra marital liaison is unacceptable from an officer of the Forces. An officer who cannot keep his impulses in check off the field cannot be entrusted the security of the nation. More empirically, it erodes public confidence in the moral standards of such an officer, which also, in its wake, affects his credibility as one to whom the security of the nation and its people can safely be entrusted.

20. With that preface, we may proceed to the lis before us.

21. Rule 20(2) of the BSF Rules permits the Central Government or DG to dispense with the requirement of holding a GSFC, where the Central Government or the DG is satisfied that the trial of the officer by the GSFC “is inexpedient or impracticable” but that the retention of the officer in the force is undesirable.

22. None of the decisions cited by Mr. Chhibber address, precisely, the scope of the expression “inexpedient”, as employed in Rule 20(2) of the BSF Rules. W.P.(C) 5629/2021 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:14.11.2025 13:48:54

23. Yacub Kispotta dealt with a person who was not below office rank. As such, that case invoked Rule 22(2)17 of the BSF Rules which, no doubt, is pari materia with Rule 20(2) thereof.

24. In Yacub Kispotta, too, an SCOI and an ROE were conducted. Thereafter, a show cause notice was issued to the petitioner Yacub Kispotta under Rule 22(2) of the BSF Rules proposing termination of his service on the ground that, in the opinion of the Competent Authority, trial by the GSFC was not reasonably expedient and practicable. The Division Bench, in paragraph 23 of its judgment, observed that though the decision as to whether to hold an inquiry was or was not reasonably practicable was within the domain of the decision making executive authority, that decision had to be based on objective facts. It also identified the limited duty of the Court in judicial review was restricted to considering whether the reasons that weighed with the authority in dispensing with the GSFC were germane and relevant. Thereafter, the Division Bench proceeded to distil the law laid down by the Supreme Court in Union of India v Tulsiram Patel18, Indian Railway Construction Co. Ltd. v Ajay Kumar19, Kuldip Singh v State of Punjab20, Union of India v Harjeet Singh Sandhu21, Satyavir Singh v Union of India22 and 17 (2) When after considering the reports on the misconduct of the person concerned, the competent authority is satisfied that the trial of such a person is inexpedient or impracticable, but, is of the opinion that his further retention in the service is undesirable, it shall so inform him together with all reports adverse to him and he shall be called upon to submit, in writing, his explanation and defence: Provided that the competent authority may withhold from disclosure any such report or portion