Rashid Ali v. Union of India & Ors.

Through: Mr. Ranjit Singh Jamwal, CGSC Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE ORDER Oral

1. The petitioner vide order dated 05.04.2007 was awarded punishment of three days rigorous imprisonment in Force custody with effect from 05.04.2007 to

07.04.2007 and pay allowances and ration money for the aforesaid period were also forfeited. The petitioner has assailed the order dated 05.04.2007 on the ground of non compliance of Rules 43 and 45 of the Border Security Force Rules, 1969. Besides non compliance of the Border Security Force Rules, 1969, the petitioner has also stated that he had made a complaint against Roop Kishore, Company Havildar Major (CHM), wherein it was mentioned that the CHM had misbehaved with the petitioner, but no action was taken against the CHM, rather punishment of three days Quarter Guard was imposed upon the petitioner. The petitioner has also made a prayer for directing the respondents to consider the case of the petitioner for undergoing the test for promotion as Constable General Duty.

2. Response stands filed by the respondents wherein it has been stated that on

03.04.2007, the petitioner was deployed at BOP Bobiya in ‘E’ Company 98 SWP No. 1079/2007 2 Bn BSF No. 79001234, Head Constable (CHM) Roop Kishore, when asked the petitioner at about 0740 hours to clean the area, the petitioner did not turn up for duty. It is further stated that the petitioner always indulges in arguments with CHM Head Constable Roop Kishore, when the petitioner is asked to perform duty, he does not clean the camp area regularly and properly. On

05.04.2007 the petitioner was heard on the offence report in terms of Rules 43 and 45 of the BSF Rules, 1969 by the Officiating Commandant. The Officiating Commandant read over the charge to the petitioner and he was given full opportunity to cross examine the prosecution witness and defend his case, but he declined to cross examine and pleaded guilty to the charge. Thereafter, the Officiating Commandant having found the petitioner guilty has awarded the punishment of 03 days RI in Force custody for an offence committed by him under section 40 of the BSF Act, 1968. It is further stated that the sentence awarded commensurate with the gravity of the offence committed by the petitioner. An order to this effect has been issued to all concerned vide 98 Bn BSF order dated 07.04.2007. The petitioner appeared in remusteration test to qualify for the rank of Constable General Duty on

12.03.2007, but he failed to qualify the said test. Thereafter, no remusteration test was conducted as yet. It is further stated that as per existing Recruitment Rules, the petitioner being class IV employee (Follower) cannot be promoted to the rank of Constable General Duty unless he qualifies the remusteration test. The respondents have denied that due to aforesaid punishment awarded by the Officiating Commandant, the petitioner was not promoted to the rank of Constable General Duty. SWP No. 1079/2007 3

3. Ms. Surinder Kour, learned senior counsel appearing for the petitioner vehemently argued that the order impugned has been passed in utter disregard of Rules 43 and 45 of the BSF Rules, 1969 and further that the said order has been passed only because the petitioner made a complaint against the CHM Roop Kishore.

4. Per contra, Mr. Ranjit Singh Jamwal, learned CGSC appearing for the

6. respondents vehemently argued that the order impugned assailed by the petitioner in the present petition has been passed by the Officiating Commandant in accordance with Rules 45 of the BSF Rules, 1969 and the Commandant is empowered to award punishment as prescribed in section 53 of the BSF Act, 1968. He vehemently argued that a false and frivolous story has been concocted by the petitioner in respect to the complaint made by him in respect of the conduct of the CHM Roop Kishore. Heard and perused the enquiry record. A perusal of the record reveals that the offence report in terms of Rule 43 of the BSF Rules in accordance with appendix IV was prepared wherein the specific allegation was that the petitioner at 1740 hours on 03.04.2007 when ordered by CHM Roop Kishore Company to clean the BOP area, he did not turn up at that time. The offence report was forwarded to the Commandant and the Officiating Commandant who at that point of time was officiating in absence of the Commandant concerned, heard the petitioner in terms of Rule 45 of the BSF Rules 1969. The CHM Roop Kishore was heard by the Officiating Commandant and the petitioner was afforded an opportunity to cross examine the witness but he declined to do so. He also pleaded guilty. SWP No. 1079/2007 4 Taking into consideration the written report, the oral statement of the CHM Roop Kishore, the Officiating Commandant vide order dated 05.04.2007 awarded the punishment of three days RI in Force custody to the petitioner. Sub Rule (2) of Rule 45 of the BSF Rules, 1969 provides that after hearing the charge under sub rule (1) of Rule 45 of the BSF Rules, 1969, the Commandant may award any of the punishment, which he is empowered to award.

7. A perusal of section 53 of the BSF Act, 1968 would further reveal that the Commandant or such other officer as is, with the consent of the Central Government, specified by the Director General may, in the prescribed manner proceed against a person subject to this Act and award one or more punishments as provided in the section 53 including imprisonment in Force custody upto twenty eight days.

8. In the disciplinary proceedings, the Courts have only to examine as to whether procedure prescribed for taking disciplinary action against the delinquent employee has been complied with or not and the Court cannot examine the sufficiency of evidence against the delinquent employee. Also the quantum of punishment awarded to the delinquent employee cannot be interfered with unless the punishment imposed upon the delinquent employee is shockingly disproportionate to his misconduct. After examining the record, this Court finds that there has neither been an infraction of the procedure prescribed by the BSF Act, 1968 and the Rules framed there under while proceeding against the petitioner nor punishment awarded to the petitioner is shockingly disproportionate to the misconduct of the petitioner. SWP No. 1079/2007 5

9. The contention raised by the petitioner that he was proceeded only as he filed the complaint against the CHM Roop Kishore appears to be an afterthought as nothing is forthcoming from the record that the petitioner ever made any such complaint to any officer particularly in view of the categoric stand taken by the respondents that no complaint in respect of the conduct of the CHM Roop Kishore has ever been received from any one. Besides, this Court finds that the punishment awarded to the petitioner has not come in the way of examining the claim of the petitioner for being promoted to Constable General Duty as the respondents have specifically stated in their response that the petitioner failed to qualify the test that was conducted in the month of March

2007. Therefore, no directions can be issued to the respondents to consider the claim of the petitioner for his promotion to Constable General Duty, particularly when the petitioner has already failed in the test.

10. In view of all what has been said and discussed above, this Court does not find any reason whatsoever to interfere with the order impugned, as such, the present petition is found to be misconceived and the same is dismissed. (RAJNESH OSWAL) JUDGE Jammu 22.08.2023 Rakesh Whether the order is speaking: Whether the order is reportable: Yes/No Yes/No