Rattan Lal vs Union Of India on 1 March, 2025

Jammu & Kashmir High Court

Rattan Lal vs Union Of India on 1 March, 2025

Author: Rajnesh Oswal

Bench: Rajnesh Oswal

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                               AT JAMMU

Reserved on:   13.02.2025
Pronounced on: 01.03.2025


SWP No. 1441/2007
IA No. 1/2017

1. Rattan Lal                                 .....Appellant(s)/Petitioner(s)
   S/O Sh. Prem Dass R/O Manlik
   Nagar (IInd Phase) Near BSF
   Campus Paloura, Jammu Aged
   40 years
                     Through: Ms. S. Kour, Sr. Advocate with
                              Ms. Manpreet Kour, Advocate.
                vs
1. Union of India                                       ..... Respondent(s)
   Th. Home Secretary, Ministry of Home
   Affairs, New Delhi.
2. Director General of BSF
   CGO Complex Lodhi Road, New
   Delhi.
3. Inspector General of BSF
   Frontier headquarter C/O 56 APO
4. Deputy Inspector General of BSF,
   HQ Ambassa Dhalai, Tripura.
5. Commandant,
   46 Bn. BSF C/O 56 APO
                     Through: Mr. Vishal Sharma, DSGI.
                              Mr. Eishan Dadichi, CGSC.

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                              JUDGMENT

1. The petitioner, who was working as Constable with the respondents, was

retired from service with effect from 31.07.2006 (AN) under Rule 26 of

the BSF Rules 1969 by the respondent No. 5 vide order No. Estt/Ret-

Uns/46 Bn/2006/13296-102 dated 31.07.2006 (for short, „the order

impugned‟).

2 SWP No. 1441/2007

2. The petitioner has impugned the order impugned on the following

grounds:-

a) That the respondents have not given any cogent reason in the

order impugned while retiring the petitioner and have not

granted any personal hearing to the petitioner before imposing

major punishment of compulsory retirement;

b) That it is settled proposition of law that even a person who has

more than 4/5 red entries cannot be retired from service solely

on the basis of those entries and the nature of the offences,

length of service, hard stations and difficulties in living etc. are

required to be considered by the concerned authority before

taking any such action. The respondents have not taken into

consideration the previous record of the petitioner and have

passed the order in a mechanical manner. The petitioner has not

done any act, for which he has been imposed the punishment.

c) That the respondents have imposed the punishment of

compulsory retirement on the petitioner which amounts to

double jeopardy because for the same allegations, the

respondents have punished the petitioner twice.

3. The respondents have objected to the writ petition by submitting that the

petitioner has not availed the statutory remedy by filing petition under

Rule 28-A of the BSF Rules 1969, which provides that an individual has a

right to file petition against the order passed under Rule 26 of the BSF

Rules to the superior officer, if he feels aggrieved of the said order and, as

such, the petitioner, without availing the said remedy, has filed the present
3 SWP No. 1441/2007

petition, which is not maintainable. The respondents have further stated

that the petitioner during his service tenure of 15 years 10 months and 4

days of service was awarded 15 cash rewards for his performance as a

Welder in Unit repair organization and 6 punishments were imposed upon

the petitioner for committing offences while on duty. The petitioner on

12.02.2000 created nuisance after consuming liquor while on duty and a

written warning was issued to him to abstain himself from indulging in

such activities and to be careful in future vide communication dated

15.02.2000, but he continued to consume liquor, therefore, three

punishments were awarded to him under Section 26 of BSF Act, 1968. It

is further stated that the Board assembled in the year 2003 for screening

the performance of unit personnel and found the performance of the

petitioner not upto the required standard and accordingly, as per

recommendation of the Board, a written warning was issued to him vide

communication dated 24.01.2004 to improve his conduct, failing which,

necessary action would be taken against him for retirement on the ground

of unsuitability under Rule 26 of BSF Rules. The petitioner instead of

improving his performance continued with the acts of indiscipline. He was

sanctioned 30 days‟ of Earned Leave with 09 days journey period with

effect from 24.10.2005 to 01.12.2005 but he failed to join his duty in time

and reported on 05.01.2006 (FN) after overstaying 34 days without leave.

His leave was regularized by the competent authority, and he was given

one more opportunity to improve his conduct/behaviour, however, despite

the abovementioned warnings issued to the petitioner, he did not improve

himself at all and could not prove himself to be a disciplined member of
4 SWP No. 1441/2007

service and continued with his misconducts. The petitioner, on 12.08.2005

again used in-subordinate language to his superior officer, for which, he

was tried by SSFC on 20.01.2006 for committing an offence under Section

20(c) of the BSF Act and awarded 30 days rigorous imprisonment in force

custody. The Board of Officers was detailed for screening the performance

of those unit personnel who were eligible to be boarded out on the ground

of unsuitability and the name of the petitioner was recommended by the

Board to be retired on the ground of unsuitability. Board proceedings were

approved by the Commandant and after confirmation by the DIG BSF, a

Show-Cause Notice dated 15.07.2006 was issued to the petitioner. He

submitted his reply to the show-cause notice on 27.07.2006 and after

careful consideration of his reply by the competent authority, he was

retired from service with effect from 31.07.2006 (AN) on the ground of

unsuitability under Rule 26 of BSF Rules with full compensation pension

and gratuity on the basis of qualifying service under Rule 40 of CCS

Pension Rule, 1972. It is further stated that the total length of the service,

hard station as well as family factors were kept in mind by the competent

authority while passing the order impugned. It is further stated that

retirement on account of unsuitability as per Rule 26 of the BSF Rules is

not violation of any fundamental right of the petitioner and it not a case of

double jeopardy. As the conduct of the petitioner was not found up to

mark, he was sent for retirement. Once he was tried for serious offences

by holding SSFC, the court had taken lenient view against the petitioner

keeping in mind his family and awarded 30 days rigorous imprisonment

instead of dismissing him from service without any pensionary benefit.
5 SWP No. 1441/2007

The pensionary benefits as admissible have already been released by Pay

and Accounts Division BSF vide their PPO dated 21.02.2007 and as the

petitioner was sent on retirement under Rule 26 of the BSF Rules,

therefore, question for award of full compensation pension and gratuity is

not applicable in case of the petitioner.

4. Ms. S. Kour, learned Senior Counsel appearing for the petitioner has

argued that the respondents could not have retired the petitioner as for

meritorious services of the petitioner, he was awarded with cash rewards

and further merely because of two punishments/adverse entries in the past

five years, the order of retiring the petitioner could not have been passed

by the respondents. Ms. S. Kour has relied upon the judgment passed by

the Hon‟ble Supreme Court of India in cases titled as Veerendra Kumar

Dubey vs. Chief of Army Staff and others reported in 2016 (2) SCC 627

and Amarendra Kumar Pandey vs. Union of India reported in 2022(3)

SLJ 476.

5. Per contra, Mr. Vishal Sharma, learned DSGI appearing for the

respondents has argued that the conduct of the petitioner during his service

was unbecoming of a disciplined member of force. He was warned

numerous times and even notice dated 24.01.2004 was served upon the

petitioner to be careful but despite that he did not mend his behaviour and

even was awarded 30 days‟ rigorous imprisonment on 20.01.2006. He

further submits that the cash rewards awarded to the petitioner were in

respect of work done by him on different occasions, however, the overall

behaviour and conduct of the petitioner, who was a habitual drunkard and

disrespectful to his seniors, prompted the respondents to pass the order
6 SWP No. 1441/2007

impugned in this petition. Mr. Vishal Sharma, learned DSGI has relied

upon the judgment of Coordinate Bench of this Court in case titled as

Sardari Lal vs. Union of India reported in 1999 (1) SCT 747.

6. Heard learned counsel for the parties and perused the record.

7. The petitioner has been removed from service by invoking Rule 26 of the

BSF Rules, 1969. The Rule is extracted as under:

“26. Retirement of enrolled persons on grounds of
unsuitability–Where a Commandant is satisfied that an enrolled
person is unsuitable to be retained in the force, the
Commandant, may after giving such enrolled person an
opportunity of showing cause (except when he considers it to be
impracticable or inexpedient in the interest of security of the
State, to give such opportunity), retire such enrolled person from
the force.”

8. A perusal of the abovementioned rule reveals that the if a Commandant is

satisfied that an enrolled person is unsuitable to be retained in the force,

the Commandant, may after giving such enrolled person an opportunity of

showing cause (except when he considers it to be impracticable or

inexpedient in the interest of security of the State, to give such

opportunity), retire such enrolled person from the force.

9. Further Rule 28-A of the BSF Rules, 1969 provides that an enrolled

person feeling aggrieved by any order of termination of his service passed

under this chapter may present a petition to the Inspector General, who

may pass such orders on the petition as deemed fit. Though the

respondents have raised a plea that the petition is premature, but rejecting

the petition on the ground of availability of alternative remedy after 18

years would not be proper, as such, this Court deems it appropriate to

consider the issues raised by the petitioner on merits.
7 SWP No. 1441/2007

10. A perusal of the record depicts that the petitioner has rendered service

with the respondents for 15 years 10 months and 4 days and during his

service, the following punishments were inflicted upon the petitioner:

a) U/S-19(a) of BSF Act 07 days RI (Rigorous Imprisonment) on

11.08.1997

b) U/S-26 of BSF Act 07 days of RI on 29.02.2000

c) U/S-26 of BSF Act 07 days confinement to lines on 27.04.2000

d) U/S-26 of BSF Act 14 days RI on 23.10.2000

e) U/S-19(b) of BSF Act 28 days RI on 24.02.2003

f) U/S-20(c) of BSF Act 30 days RI on 20.01.2006 by holding SSFC.

11. Equally true is that the petitioner was rewarded with 15 cash awards and

those 15 cash awards were awarded to the petitioner for his performance

as Welder in the unit repair organisation. 15 cash rewards awarded to the

petitioner on different occasions were for his good work on those

occasions but the respondents have passed the order impugned taking into

consideration the overall conduct and behaviour of the petitioner. Merely

doing good work for few occasions does not necessarily mean that the

employee is very good and useful for the organization and cannot be

retired prematurely when in the estimation of employer, the employee is

not fit person to be retained in service. The respondents have stated that

the conduct of the petitioner was not suitable for retaining him in the

service and that is why the Board of Officers recommended the petitioner

to be retired on the ground of unsuitability and thereafter, a Show-Cause

Notice dated 15.07.2006 was served upon the petitioner. A perusal of the

notice dated 15.07.2006 reveals that the respondent No. 5 while issuing

notice to the petitioner has taken into consideration the service record of

the petitioner for the last five years only and have taken into account two
8 SWP No. 1441/2007

adverse entries/punishments inflicted upon him during the said period,

which are as under:

                  a)    U/S 19(b)-   28 days RI on 24.02.2003.
                  b)    U/S 20(c)-   30 days RI on 20.01.2006.

12. The petitioner responded to the show cause notice on 27.07.2006 by

stating that he wanted to continue with the service. Thereafter, taking into

consideration the reply, the respondent No. 5 vide order impugned

directed the retirement of the petitioner from the service with effect from

31.07.2006 (AN) under Rule 26 of the BSF Rules. Record further

demonstrates that the petitioner was even issued notice dated 24.01.2004

thereby warning him to mend his behaviour, but he did not do so. He was

tried by SSFC and awarded 30 days rigorous imprisonment under force

custody vide order dated 20.01.2006.

13. Though the respondents have taken into consideration only two

punishments imposed upon the petitioner on 24.02.2003 under Section

19(b) of the BSF Act and 20.01.2006 under Section 20(c) of the BSF Act

but the past conduct of the petitioner has also not been satisfactory, as he

has been punished on four different occasions.

14. It is contended by the petitioner that he has been punished twice for the

same offence. Retiring an enrolled person on the ground of unsuitability

by taking into consideration the earlier occasions when he was punished

for the offences does not amount to punishing an individual twice for the

same act and in fact the respondents have retired the petitioner by taking

into consideration his overall conduct and performance.
9 SWP No. 1441/2007

15. In this context, it would be appropriate to take note of the judgment passed

by the Hon‟ble Supreme Court of India in case titled as Amarendra

Kumar Pandey vs. Union of India reported in 2022(3) SLJ 476, wherein

at Paras 28 and 29 following has been held:

“28. Where an Act or the statutory rules framed thereunder left
an action dependent upon the opinion of the authority
concerned, by some such expression as is satisfied or is of the
opinion or „if it has reason to believe‟ or „if it considered
necessary‟, the opinion of the authority is conclusive,

(a) If the procedure prescribed by the Act or
rules for formation of the opinion was duly
followed,

(b) If the authority acted bona fide,

(c) If the authority itself formed the opinion
and did not borrow the opinion of
somebody else and

(d) If the authority did not proceed on a
fundamental misconception of the law and
the matter in regard to which the opinion
had to be formed.

29. The action based on the subjective opinion or satisfaction, in
our opinion, can judicially be reviewed first to find out the
existence of the facts or circumstances on the basis of which the
authority is allegedly to have formed the opinion. It is true that
ordinarily the court should not inquire into the correctness or
otherwise of the facts found except in a case where it is alleged
that the facts which have been found existing were not
supported by any evidence at all or that the finding in regard to
circumstances or material is so perverse that no reasonable man
would say that the facts and circumstances exist. The courts will
readily defer to the conclusiveness of the authority‟s opinion as
to the existence of matter of law or fact upon which the validity
of the exercise of the power is predicated.”

16. So far as the present case is concerned, the respondents have followed the

mandate of Rule 26 of the BSF Rules by issuing a show-cause notice to

the petitioner, which was duly replied by him and after taking into

consideration the reply filed by the petitioner, the order impugned was

passed. This Court does not find any infraction of rule which may compel

this Court to take a view contrary to the opinion formed by the respondent

No. 5.

10 SWP No. 1441/2007

17. In Veerendra Kumar Dubey’s Judgment (Supra), the Hon‟ble Supreme

Court of India has observed that “award of four red ink entries simply

pushes the individual concerned into a grey area where he can be

considered for discharge. But just because he qualifies for such

discharge does not mean that he must necessarily suffer that fate. It is

one thing to qualify for consideration and an entirely different to be

found fit for discharge”. This observation was made by the Hon‟ble

Supreme Court of India by taking into consideration that Rule 13

applicable in that case does not make it mandatory for the competent

authority to discharge an individual just because he has been awarded four

red ink entries particularly, when the threshold of four red ink entries, as a

ground for discharge had no statutory sanction.

18. So far as the present case is concerned, the only requirement in terms of

Rule 26 is to determine the un-suitability of enrolled person to be retained

in force. Once the competent authority has recorded its satisfaction on the

basis of some material with regard to un-suitability of the member of the

force to be retained, the Courts cannot act as an appellate or revisional

authority for the purpose of determining as to the sufficiency of the

material leading to formation of the opinion, rather the courts are only

concerned as to whether the procedure prescribed by law has been

followed by the authorities in passing the order impugned or not and

further whether the same suffers from fundamental misconception of law.

Of course, while exercising power of judicial review, the courts can show

indulgence when the order is perverse in nature.

11 SWP No. 1441/2007

19. In this context, it would be appropriate to take note of the judgment passed

by the Coordinate Bench of this Court in case titled as Sardari Lal vs.

Union of India reported in 1999(1) SCT 747, wherein at paras 5 and 6

following has been held:

“5. The Commandant, thereafter, has to assume satisfaction
regarding the unsuitability of the person on the basis of
relevant material having nexus with such unsuitability.
Though, his satisfaction is subject to judicial review but it
is enough if he proceeds on some basis, The court can’t go
into its sufficiency or otherwise, Therefore, all that requires
to be seen is whether or not the requisite satisfaction was
drawn on the basis of some material. If it is found based on
no material, it can’t sustain and the action would be
rendered arbitrary. But where the satisfaction is drawn on
some relevant material having proximate relation to the
unsuitability of the person, it is the end of the matter.

6. It is a matter of common knowledge by now that
provisions of Article 311(2) of the Constitution are not
attracted to the defence services. Nor are these available in
case of compulsory retirement even in Civil Services
because it neither entails penal consequences nor amounts
to dismissal or removal from service. Even so, an order of
compulsory or premature retirement is questionable on
some specific grounds like arbitrariness or perversity of
action or that it was taken for mala fide or extraneous
considerations. Nonetheless, it falls within the domain of
the competent authority to take action by taking in regard
the whole service profile of the individual. The Authority
can’t be pinned down to consider the material only upto a
point, nor can it be faulted for taking any pre- promotion
material into consideration. It is for the Authority to derive
satisfaction about the unsuitability of the person in service
upon all the available-material.”

20. For all what has been discussed, considered and analysed hereinabove,

this Court is of the considered view that the order impugned has been

passed by the respondent No. 5 well within the parameters of law after

affording due opportunity of hearing to the petitioner and there is no
12 SWP No. 1441/2007

perversity in the order impugned. Accordingly, the instant petition is

found to be misconceived and the same is dismissed.

(RAJNESH OSWAL)
JUDGE

Jammu
01.03.2025
Sahil Padha
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.

Sahil Padha
2025.03.04 14:03
I attest to the accuracy and
integrity of this document