Delhi High Court
Deepak Kumar Singh vs Union Of India & Ors. on 2 April, 2025
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~45
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 28 March 2025
Pronounced on : 02 April 2025
+ W.P.(C) 2410/2022, CM APPL. 6921/2022
DEEPAK KUMAR SINGH .....Petitioner
Through: Dr. S.S. Hooda and Mr.
Divyanshu Shekhar, Advs.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr. Manish Mohan, CGSC
with Ms. Aishani Mohan and Mr. Varenyum
Singh, Advs. for UOI
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE AJAY DIGPAUL
% JUDGMENT
02.04.2025
C. HARI SHANKAR, J.
1. The petitioner, who is posted as Second-In-Command in the
Border Security Force1, is facing an inquiry, following a charge-sheet
issued to the petitioner on 1 April 2020, by the Commandant, 123 rd
Bn. BSF, to whom the case had been referred by the Director
General2, BSF on 19 December 2018.
1″BSF” hereinafter
2″DG” hereinafter
Signature Not Verified
W.P.(C) 2410/2022 Page 1 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
2. By this writ petition, the petitioner essentially seeks quashing of
the communication dated 19 December 2018 from the DG to the
Commandant, BSF and order dated 21 September 2021, whereby the
Commandant has conveyed the decision of the Additional Director
General3, BSF to order Record of Evidence4, so that evidence could be
gathered in respect of the charge against the petitioner.
3. Clearly, therefore, what the petitioner seeks is interdiction by
this Court, with the inquiry proceedings, at an interlocutory stage.
4. Pleadings have been completed and written submissions have
also been filed by both sides.
5. We have heard Dr. Surender Singh Hooda, learned Counsel for
the petitioner and Mr. Manish Mohan, learned CGSC for the
respondents at length.
6. The case that Dr. Hooda sets up, in favour of the petitioner, is as
follows.
7. The petitioner, who had been promoted to the rank of Second-
In-Command, BSF, on 21 October 2016, was sent to the Sashastra
Seema Bal5 on deputation on 1 May 2015. In the SSB, he was posted
in the 41st Bn from 22 May 2015 to 1 May 2017. On 1 May 2017, he
was posted from the 41st Bn to the 63rd Bn, located at Barasat,
3″Add. DG” hereinafter
4″ROE” hereinafter
5″SSB” hereinafter
Signature Not Verified
W.P.(C) 2410/2022 Page 2 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
Kolkata, of which he was given independent charge. The 63 rd Bn was
admittedly a reserve battalion, which had no operational jurisdiction.
8. Despite the fact that, as in-charge of the 63rd Bn, the petitioner
had no operational jurisdiction, he was given verbal instructions of the
Inspector General6, FTR, HQ, SSB, Siliguri, to carry out search and
seizure operations on various occasions. Acting in accordance with
the said verbal instructions, the petitioner, in coordination with other
local agencies, such as the Police, the CID Police Kolkata, the Income
Tax department, the Narcotic Control Bureau, Customs, and the Forest
Authorities, carried out as many as 10 operations, in which various
contraband items such as drugs and even smuggled animals were
seized. Dr. Hooda has drawn our attention to various commendations
and encomiums awarded to the petitioner for the work undertaken by
him. There can be no gainsaying the fact that these letters of
commendation do indicate appreciation of the work done by the
petitioner, and, in fact, taken at face value, encourage him to continue
such activities.
9. One such operation, launched by the petitioner purportedly on
the verbal instructions of the IG, involved seizure of old demonetized
currency from a location at the Diamond Harbour police station.
When the petitioner and his associate reached the spot on 22 February
2018, disguised as decoy customers, they were attacked by armed
miscreants and had to retaliate. In the altercation that followed, one
Altaf Jamadar, a notorious criminal, was killed. A huge quantity of
6″IG, SSB” hereinafter
Signature Not Verified
W.P.(C) 2410/2022 Page 3 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
old and demonetized currency was, however, recovered from the
premises. Cross FIRs were lodged, by the petitioner and against him.
In FIR 69/2018, lodged by a local resident against the petitioner, he
was arrested on the same day i.e. 22 February 2018 and was remanded
to judicial custody on 23 February 2018. He remained in judicial
custody for 58 days and was released on bail on 21 April 2018. In the
process, the petitioner was also placed under suspension from 22
February 2018 to 21 August 2018.
10. On 23 February 2018, the IG, FTQ, HQ, SSB, Siliguri, on
whose verbal directions the petitioner had been acting all along,
ordered constitution of a Staff Court of Inquiry7, to investigate into the
aforesaid incident. The SCOI submitted its report on 30 March 2018.
The report read thus:
“OPINION OF THE COURT:
The Court is of the opinion that Sh. D. K. Singh, who on
22/02/2018, had gone to Sharisa Market area under Police Station
Diamond Harbour, to conduct Decoy method of operation in order
to seize and apprehend demonetized old Indian currency notes,
amounting to Rupees nine crores had no written approval,
knowledge and consent of 1.G. FTR SLG.
Sh. D.K Singh, Second-In-Command had informed Police
Diamond Harbour, giving them sufficient time on 22/02/2018.
However, while he was approaching towards the target area, he
along with HC/GD Amitava Pramanik, before the arrival of police
were kidnapped, finally culminating in act of firing in the air
without aiming at anyone by Sh. D. K. Singh, Second-In-
Command to save HC/GD Amitava Pramanik which led to
criminals to flee the scene.
After having been arrested by the police Diamond Harbour
on 22/02/2019 under section 302 (IPC) and Arms Act 25/27, Sh.
7″SCOI” hereinafter
Signature Not Verified
W.P.(C) 2410/2022 Page 4 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
D.K Singh on 23/02/2018, escaped from police custody through the
help of SSB personnel has no justification and his contention in
telling police that he was not escaping but going to SSB camp to
get documents, despite of vehement opposition from Sh. Gautam
Mitra, Officer-In-Charge of P.S. Diamond Harbour is also
meaningless and irrelevant.
The SSB personnel who helped in such escape of Sh. D.K
Singh from Police Custody also have no moral explanation nor
justification for such actions, though they had pleaded that they had
just carried instructions as issued by their Officiating Commandant.
Sd/-
30/03″
11. On 11 July 2018, the IG SSB convened an Additional COI in
terms of Rule 175(11)8 of the Sashastra Seema Bal Rules 20099, to
investigate and collect further evidence. The Addl. COI submitted its
report in July 2018. The Addl. COI found that the petitioner, as
officiating commandant of the 63rd Bn had acknowledged having
conducted several operations beyond his operational jurisdiction, but
claimed to have done so in terms of verbal directions issued by IG,
SSB. As a reserve battalion, the 63 Bn had no Area of Responsibility10
to conduct such operations. Besides, Sharisa Market under PS
Diamond Harbour, where the alleged incident had taken place, was
beyond the operational jurisdiction of the 63 Bn. That said, it was also
a fact that the petitioner had received several commendations,
appreciations and even cash awards for the said operations, which may
have emboldened him to continue to do so. The Addl. COI also found
8 (11) The Court may be re-assembled as often as the officer who assembled the court may direct, for the
purpose of examining additional witnesses, or further examining any witness or recording further information
and in such a case the Court may record fresh opinion if considered necessary after complying with the
provisions of clause (b) of sub rule (8).
9 “the SSB Rules” hereinafter
10 “AOR” hereinafter
Signature Not Verified
W.P.(C) 2410/2022 Page 5 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
that the operation had been conducted only on verbal consent from the
IG, SSB.
12. Having so noted, however, the report of the Addl. COI does not
arrive at any conclusive finding but merely adverts to the evidence
which was recorded before it.
13. Apparently, thereafter, the IG SSB entered his remarks with
respect to the opinion and recommendations of the COI on 12 August
2018. Having referred to the evidence recorded before the COI and
the Addl. COI in detail, the IG, SSB, in para 24 of his remarks,
recommended thus:
“24. I further recommend the following: –
(i) Disciplinary action be taken against Shri D K Singh,
Second-in-Command, under the provisions of Rules &
Regulations applicable to him, for violating the instructions/
directions/ SOP issued by higher authorities/ FHQ SSB and
Frontier HQrs SSB Siliguri while planning and conducting
the operation on 22.02.2018 out of the AOR in the area of
Sharisa Market at Diamond Harbour (West Bengal).
(ii) A case may be taken up with the Ministry of Home
Affairs, Govt. of India for revocation of suspension in
respect of Shri D K Singh, Second-in-Command and
further, he may be repatriated to BSF, his parent
Department.
(iii) The entire case in respect of Shri D K Singh,
Second-in-Command may be sent/ forwarded to the BSF for
taking decision at their end in respect of the criminal cases,
as mentioned above, registered against him at PS Diamond
Harbour (West Bengal), and for taking disciplinary action
against him under the provisions of BSF Act & Rules for
the omissions & commissions on his part as mentioned at
sub-para (i) above.”
Signature Not Verified
W.P.(C) 2410/2022 Page 6 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
14. On 30 August 2018, the petitioner was repatriated to the BSF.
15. On 19 December 2018, the DIG (Confd), on behalf of the DG,
BSF, addressed the following communication to the IG, BSF:
“CONFIDENTIAL
No. C-14011/09/2018/Confd-Disc-I/BSF/29806-08
Government of India,
Ministry of Home Affairs
Directorate General, Border Security Force,
(Confd/Vig Directorate: Confidential Section)Block No.10, 5th Floor,
CGO Complex, Lodhi Road,
New Delhi, 110 003
Dated, the 19 Dec 2018
The Inspector General
Border Security Force
Ftr HQ BSF,
Meghalaya.
INITIATION OF ACTION AGAINST SHRI DEEPAK KUMAR
SINGH, SECOND IN- COMMAND (REPATRIATION FROM
DEPUTATION FROM SSB) POSTED TO 123 BN BSFWith reference to subject referred above, I have been directed to
inform that Shri Deepak Kumar Singh, 2IC while on deputation
with SSB, was involved in a scuffle on 22/02/2018 with anti social
elements in the general area under Police Station Diamond
Harbour, Kolkata (WB). In the scuffle, a person named Altaf
Jamadar S/o Khalik Jamadar R/O Vill- Boillagacchi, PS Raidighi,
Sundarban (WB) was killed. After the incident, PS Diamond
Harbour had registered case No 69 dated 22.02.2018 u/s 302 IPC
and 25/27 Arms Act against the officer and other SSB personnel.
On the basis of the FIR, Diamond Harbour Police arrested the
officer on 22.02.2018. The officer was placed under deemed
suspension w.e.f. 22.02.2018 i.e. from the date of his detention in
police custody vide SSB order dated 16.03.2018 under Rule
41(2)(i) of SSB Rules 2009. The deemed suspension period was
further extended for another 90 days w.e.f. 22/05/2018 to
20.08.2018 by SSB. The officer was released on bail from the
Signature Not Verified
W.P.(C) 2410/2022 Page 7 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
Police Custody by ACIM Court Diamond Harbour vide order dated
24.04.2018. The officer was repatriated from deputation and
relieved by SSB on 30.08.2018. On return from deputation, the
officer was posted to 123 Bn BSF vide Pers Dte, FHQ Sig No R-
3227 dated 01/10/2018.
2. In the case under reference, Ftr HQ, SSB, Siliguri ordered
an inquiry in the incident. The Court of Inquiry/Addl COI was
completed under SSB Act & Rule and the officer had been found
blameworthy in the COI. The Officer while being inducted in SSB
had opted to be governed by the provisions of BSF Act & Rules.
Therefore, the case has been forwarded to BSF by HQ SSB, New
Delhi for initiation of disciplinary action against the officer.
3. The aforesaid case has been examined in detail at this HQ
in consultation with Law Branch, FHQ. It has been found that
since, the COI/Addl CsOI ordered by IG, SSB, Siliguri Frontier
being a fact finding body under the SSB Act & Rules, investigated
into commission & omission on the part of the officer and other
SSB personnel, therefore, it may not operate as a bar in initiating
action against the officer on the basis of the COI /Addl COI by the
BSF authorities. However, while, considering to claim the criminal
case against the said officer from criminal court it may be borne in
the mind that the officer has committed the alleged offence along
with one HC(GD) of SSB whose identity is known but he cannot
be dealt with under the BSF Act & Rules. Thus, it would not be
advisable to claim the case from criminal court. However, these
aspects may be considered by concerned competent authority while
taking a decision to claim the case from criminal court.
4. In view of above, since, the officer has now been posted to
123 Bn BSF under Ftr HQ Meghalaya, the COI/Addl. COI
conducted by the SSB in the incident are sent herewith for
initiation of action as deemed fit by the competent authority against
Shri Deepak Kumar Singh, 2IC IRLA No 19772288 of 123 Bn
BSF as per BSF Act & Rules.
Encl: 03 Files.
COI proceedings Page-01 to 352 (along with appendixes).
Addl. COI Proceedings Page -01 to 31 (along with appendixes).
Addl. COI Proceedings Page -01 to 58 (along with appendixes).
Sd/-19/12/2018
(Piyush Mordia), IPS
DIG(Confd)
____Dec ‘2018
Copy to :-
Signature Not Verified
W.P.(C) 2410/2022 Page 8 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
1. HQ SDG, BSF (EC) :- For info please.
2. 123 Bn BSF :- For info please.”
16. The DG, BSF referred the case for disposal to the Commandant,
123rd Bn. BSF, who heard the petitioner at length under Rule 45B11 of
the BSF Rules 1969.
17. During the course of the aforesaid inquiry, the Commandant,
on 1 April 2020, issued the following charge-sheet to the petitioner
under Rule 5312 of the BSF Rules:
11 45-B. Hearing of charge against an officer and a subordinate officer. –
(1)(a) The charge against an officer or a subordinate officer shall be heard by his Commandant:
Provided that charge against a commandant, a Deputy Inspector-General or an Inspector-
General may be heard either by an officer commanding a Unit or Headquarters to which the
accused may be posted or attached or by his Deputy Inspector-General, or his Inspector-General, as
the case may be, the Director-General.
(b) The Charge-sheet and statements of witnesses, if recorded and relevant documents, if any,
shall be read over to the accused:
Provided that where written statements of witnesses are not available, or where the officer
hearing the charge considers it necessary, he shall hear as many witnesses as he may consider
essential to enable him to know about the case.
(c) Wherever witnesses are called by the officer hearing the charge, the accused shall be
given an opportunity to cross-examine them.
(d) Thereafter, the accused shall be given an opportunity to make a statement in his defence.
(2) After hearing the charge under sub-rule (1), the officer who heard the charge may:–
(i) dismiss the charge; or
Provided that he shall dismiss the charge if in his opinion the charge is not
proved or may dismiss it if he considers that because of the previous character of the
accused and the nature of the charge against him, it is not advisable to proceed further
with it, and where a charge against an officer is dismissed on any such ground, he shall
record reasons for dismissing the same:
Provided further that where a case in respect of an officer has been referred to
for initiation of disciplinary action by a
(ii) remand the accused, for preparation of a record of evidence or preparation of
abstract of evidence against the accused: superior authority, the officer hearing the charge
shall not dismiss the same without reference to such authority:
Provided also that in case of all offences punishable with death, a record of
evidence shall be prepared:
Provided also that in case of offence under Sections 14, 15, 17, 18 and offence
of ‘murder’ punishable under Section 46 of the Act, if the accused has absconded or
deserted, the Commandant shall hear the charge in his absence and remand the case for
preparation of record of evidence.
12 53. Charge-sheet. –
(1) A Charge-sheet shall contain the whole of the issue or issues to be tried at one time and
may contain more than one charge, if the charges are founded on the same facts or form part of a
series of offences of same or similar character:
Provided that a charge under Section 18, Section 19, Section 29 and Section 32 may be
included in any Charge-sheet, notwithstanding that other charges in that Charge-sheet are not
founded on the same facts or do not form part of a series of offences of the same or similar
character.
(2) Every Charge-sheet shall in its layout follow the appropriate specimen set out in
Signature Not Verified
W.P.(C) 2410/2022 Page 9 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
“APPENDIX-VI
[See rule 53(2)]CHARGE SHEET
The accused Shri Deepak Kumar Singh, Second-In-Command,
(IRLA No. 19772288), 123 Bn BSF is charged with:
BSF ACT SEC-40 AN ACT PREJUDICIAL TO GOOD
ORDER AND DISCIPLINE OF THE FORCEIn that he,
on 22.02.2018 when commanding the 63rd
Battalion SSB located at Barasat, Kolkata (WB)
while on deputation to SSB violated the
instructions/directions/SOP issued by HQ DG SSB
and Frontier HQrs SSB Siliguri (WB) while
planning and conducting the operation out the AOR
in the area of Sharisa Market at Diamond Harbour
(West Bengal).
Place: Mawpat, Shillong (Meghalaya)
Dated, the 01 April 2020
Sd/- 01/4/20
(Rajashekar K N)
Commandant
123 Bn BSF”
18. On 3 April 2020, the Commandant returned the following
findings:
“(i) Sh. Deepak Kumar Singh, 2IC/Officiating Comdt 63 Bn
SSB conducted several Ops beyond jurisdiction with the help of
sister agencies during his entire tenure of deputation in SSB.
(ii) All the Ops conducted beyond jurisdiction of SSB were
conducted on verbal consent of competent authority since no
written permission was ever provided by SSB despite repeated
request by officer which is evident from the documents produced
by officer in his defence.
Appendix VI to these rules.
Signature Not Verified
W.P.(C) 2410/2022 Page 10 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
(iii) No instance of issuance of warning, advise, explanation as
well as other disciplinary measures from higher HQrs seen
whenever operations have been a success and it had emboldened
Sh. Deepak Kumar Singh, 2IC to conduct operations.
(iv) For these Ops conducted beyond jurisdiction, many
appreciations, commendations, cash reward, DG commendation
roll and Discs were awarded to Sh. Deepak Kumar Singh, 2IC from
frontier headquarters, Force headquarters and from other sister
agencies which confirms that there was no issue of jurisdiction and
senior officers of SSB were well in knowledge and there was
consent of higher headquarters behind conducting Ops.
(v) Reply given by SPIO/CPIO of SOG Police Kolkata, Police
commissionerate Siliguri, Forest department Gangtok, Income tax
department Kolkata, NCB (KZU) under RTI Act 2005 confirms
that joint Operations were conducted frequently by 63 Bn SSB
under command of Sh. Deepak Kumar Singh, 2IC and supervisory
officers never objected and it shows their consent and permission.
(vi) Operational SOP is more of a guideline and not sacrosanct
when it is matter of national interest and which was also accepted
by SSB senior officers which is evident from awards,
Commendation card issued by DG SSB and IG Ftr HQ SSB
Siliguri who was himself competent authority in all the Operation
as well as administrative matters.
(vii) Voice call recording (In between Sh. S Bandopadhyay, IG
Ftr HQ SSB Siliguri and Sh. D K Singh) produced by officer in his
defence is evident enough to prove that Operations were being
conducted on the verbal permission / consent and direction being
given by IG Ftr HQ SSB Siliguri is evident enough to understand
that direction of competent authority was clear to not disclose to
any other one.
(viii) No reply has been received whenever question was asked
about permission and procedure regarding conducting Operations
by Sh. Deepak Kumar Singh, 2IC from 41/63 Bn SSB and SSB
higher headquarters. This fact gives the impression that there was
no difference between procedure and mode of permission on
previous several occasions when Operations were successful and
22nd Feb, 2018 when charge was framed against officer for
violating SOP and conducting Ops without planning beyond
jurisdiction.
(ix) Movement order of 30th Jan 2018 cross examination
statement of SH Sripati Pandey, DC/Adjt of the 63 BN SSB during
Signature Not Verified
W.P.(C) 2410/2022 Page 11 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
additional COI, proves that Sh. Deepak Kumar Singh, 2IC was
being directed by IG Ftr HQ SSB Siliguri to conduct Ops on his
verbal direction and there was no difference between Ops
conducted on 22 Feb 2018 and conducted before previous several
occasions.
(x) CDR report of dated 08 Feb 2018, Facebook photo
uploaded by FTR HQ SSB, Siliguri on social media, Sitrep
originated by 63 Bn SSB on 9th Feb 2018, Reply of NCB (KZU)
under RTI Act 2005, appreciation certificate issued by NCB for
conducting Ops on 8th Feb 2018 are the circumstantial evidences
which corroborates with call detail report of 22nd Feb 2018 and
gives impression that permission was asked by Sh. Deepak Kumar
Singh from IG Ftr HQ SSB Silguri and accorded by competent
authority before conducting Operation and it was a routine matter.
(xi) Since on 16 Feb 2018 joint Ops was already planned and
joint efforts were made to seize old demonetized currency and
could not be successful. On 22nd Feb, 2018 information that
provided to Police was further extension with more details about
16 Feb information. Voice call recording in between Sh. Deepak
Kumar Singh, 2IC and Sh. Gautam Mitra, OIC Diamond Harbour
police station in the presence of SI Chandan Mishra of 16 Feb 2018
gives clear impression that police had given their consent for joint
operation. Requisition letter was received by police and given
acknowledgement on 16 Feb and 22 Feb 2018. Hence, there does
not seem any lapse on the part of planning and preparation of
previous success of 91 operations also gives clear impression that
officer is competent enough to plan and execute operations
successfully.
(xii) Nature of charge against officer is operational in nature and
not related to moral aptitude/corruption.
(xiii) As per previous record of the officer, he has been awarded
with 05 DG Commendation roll and 07 IG commendation
certificate, during his 22 years of service and these awards are for
operational achievements/ duty only.
(xiv) Out of last 10 years APAR, 7 times APARs are outstanding
and 03 times Very Good.
(xv) The officer in his written statement has further pointed out
that no proceedings/suit should be initiated against him as per BSF
Sec 140(1) as had performed his duty under instructions from
higher office.”
Signature Not Verified
W.P.(C) 2410/2022 Page 12 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
On the basis of the above findings, the Commandant concluded that
the petitioner was not guilty of the charge against him and, therefore,
dismissed the charge.
19. Inasmuch as the reference to the Commandant had been made
by the DG, the Commandant was required, under the second proviso
to Rule 45B(2)(i)13 of the BSF Rules, to refer the case to the DG and
could not dismiss the case without such reference.
20. Accordingly, the on 3 April 2020 itself, the Commandant wrote
to the DG, seeking his view in the matter, as he intended to dismiss the
charge against the petitioner.
21. Under letter dated 23 December 2020, the Commandant
forwarded the proceedings of the COI and the additional COI as well
as his opinion in the matter to the DG.
22. The reference was forwarded through the IG, as a proper
channel. The IG, while forwarding the reference to the DG, also
entered remarks in February 2021, endorsing the opinion of the
Commandant.
13 (2) After hearing the charge under sub-rule (1), the officer who heard the charge may:–
(i) dismiss the charge; or
Provided that he shall dismiss the charge if in his opinion the charge is not proved or may
dismiss it if he considers that because of the previous character of the accused and the nature of the
charge against him, it is not advisable to proceed further with it, and where a charge against an
officer is dismissed on any such ground, he shall record reasons for dismissing the same:
Provided further that where a case in respect of an officer has been referred to for
initiation of disciplinary action by a superior authority, the officer hearing the charge shall not
dismiss the same without reference to such authority:
Signature Not Verified
W.P.(C) 2410/2022 Page 13 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
23. Following this, the impugned communication dated 21
September 2021 came to be issued by the Commandant (Rectt/GR) on
behalf of the ADG, BSF to the IG, HQ, BSF, returning the documents
with an advice to the Commandant to proceed further and order ROE
to gather proper evidence, so that the case could be brought to its
logical conclusion. The communication opines that the case could not
be dismissed solely on the basis of the statement of the petitioner.
24. It is in these circumstances that the petitioner has approached
this Court, essentially seeking quashing of order dated 19 December
2018 whereby the DG, BSF directed initiation of action against the
petitioner and the communication dated 21 September 2021,
conveying the opinion of the ADG that an ROE was required to be
conducted.
Rival Submissions
25. After hearing Dr. Hooda for some time, we were of the tentative
opinion that the writ petition was premature, as proceeding was still at
the stage of an ROE, and no prejudice was caused to the petitioner.
We, therefore, queried of Dr. Hooda as to whether he was insisting on
pressing the writ petition or desired to withdraw the petition with a
liberty to re-approach the Court at the appropriate stage.
26. Dr. Hooda submits that the court may proceed to decide the
petition on merits.
Signature Not Verified
W.P.(C) 2410/2022 Page 14 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
27. Dr. Hooda first referred us to the order dated 8 February 2022,
whereby noticed was issued in the present petition by this Court. It is
not necessary for us to reproduce the said order, as it merely records
the facts, which we have already recorded hereinabove, and the sole
contention, advanced by Dr. Hooda before this Court on that occasion,
that the ADG, Eastern Command, was not competent to issue the
communication dated 21 September 201, as the competent authority in
that regard, under Rule 45B was the DG, BSF. This Court, therefore,
issued notice in the petition and stayed the operation of the
communication dated 21 September 2021 supra.
28. Apart from the above contention, Dr. Hooda further submits
that, even on merits, the proceedings against the petitioner were
completely unjustified. He has drawn our attention to the findings
dated 16 July 2018 of the Addl. COI, the findings of the Commandant
in his note-sheet order dated 3 April 2020 and the comments of the IG
while forwarding the file to the DG, entered in February 202114.
29. Dr. Hooda submits that all authorities had recognized the fact
that the petitioner had acted only as per the instructions of the IG,
SSB, which the petitioner was bound to follow in view of Section
23(1)15 of the Sashastra Seema Bal Act 200716.
14 The note-sheet does not contain any date.
15 23. Disobedience to superior officer. –
(1) Any person subject to this Act who disobeys in such manner as to show a wilful defiance
of authority any lawful command given personally by his superior officer in the execution of his
office whether the same is given orally, or in writing or by signal or otherwise, shall, on conviction
by a Force Court, be liable to suffer imprisonment for a term which may extend to fourteen years or
such less punishment as is in this Act mentioned.
16 “the SSB Act” hereinafter
Signature Not Verified
W.P.(C) 2410/2022 Page 15 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
30. Dr. Hooda has passionately submitted that if, for obeying the
order of a superior, a member of the Armed Forces is to be subjected
to disciplinary and punitive action, it would be a gross travesty of
justice and would have a severely demoralizing effect.
31. While candidly acknowledging the fact that, as the In-charge of
the 63rd Bn., which was a reserved Bn., the petitioner did not have the
jurisdiction to undertake the operations which he had undertaken
purportedly at the behest of the IG, SSB. Dr. Hooda submits that it
was only because of these operations that large scale smuggling and
drug peddling had been brought to light.
32. It was for this reason, he submits, that the petitioner was
commended by several superior authorities and even awarded a cash
award by the Narcotics Control Bureau and the Commissioner of
Customs. Once, taking into account this fact, the Addl. SCOI, the
Commandant and the IG had all entered remarks favourably to the
petitioner, he submits that, subjecting the petitioner to an ROE was
completely unjustified.
33. Dr. Hooda also seeks to submit that the proceedings were
vitiated ab initio, as the charge-sheet dated 1 April 2020 was itself
issued pursuant to the recommendation, by the IG, SSB, to the
Commandant, BSF, to initiate disciplinary proceedings against the
petitioner. He submits that, being the authority who had directed the
petitioner to carry out the operations, the legitimacy of which were
now being sought to be questioned, the IG, SSB effectively acted as a
Signature Not Verified
W.P.(C) 2410/2022 Page 16 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
judge in his own cause when he forwarded the file to the BSF with a
recommendation to institute disciplinary proceedings. For this
proposition, Dr. Hooda places reliance on the judgment of the
Supreme Court in A.K. Kraipak v UOI17.
34. In any event, submits Dr. Hooda, the DG, to whom the file had
been marked by the Commandant under Rule 45 of the BSF Rules,
was not the petitioner’s disciplinary authority. The petitioner’s
disciplinary authority was the Commandant, and it was the
Commandant who had full authority to decide whether to punish the
petitioner or exonerate him. The Commandant had already taken a
decision to exonerate the petitioner and had only marked the file to the
DG because of the mandate of the second proviso to Rule 45B of the
BSF Rules. The DG could not, thereby, assume appellate jurisdiction
over the decision of the Commandant and direct the holding of ROE.
To a query from the Court as to the role of DG in such a situation, Dr.
Hooda’s answer is that the DG was only required to see whether there
were any inherent errors in the decision of the Commandant.
35. Dr. Hooda also submits that there has been a violation of the
principles of natural justice in this case as, before taking the decision
communicated by the communication dated 21 September 2021, the
petitioner was not heard.
36. For all these reasons, Dr. Hooda submits that the prayers in the
writ petition deserve to be granted.
17 (1969) 2 SCC 262
Signature Not Verified
W.P.(C) 2410/2022 Page 17 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
37. Mr. Mohan, learned CGSC appearing for the respondent, has
taken us through the written submissions filed by the respondent and
has reiterated their contents.
38. Mr. Mohan’s submission is that, once the fact that, in carrying
out the operation which forms subject matter of the charge-sheet
issued to the petitioner, the petitioner had acted in excess of
jurisdiction vested in him, was conceded, there could be no question
of grant of any relief to the petitioner. He submits that the petitioner
was not as innocent as he sought to make himself out to be and that, in
fact, in the skirmish which resulted as a consequence of his ill-advised
vigilantism, one person also lost his life. The petitioner, he submits, is
also facing criminal proceedings in that regard.
39. In such circumstances, Mr. Mohan submits that the petitioner
cannot be said to have made out any case for any interlocutory
interdiction with the ROE or its progress and resolution.
Analysis
40. Having heard Dr. Hooda and Mr. Mohan and examined the rival
submissions, we find ourselves entirely unconvinced with Dr. Hooda’s
submission that this Court should interdict the holding of the ROE.
41. We are in agreement with Mr. Mohan that, once the petitioner
has conceded that the operations conducted by him, including the
Signature Not Verified
W.P.(C) 2410/2022 Page 18 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
operation undertaken on 22 February 2018, were beyond the scope of
his duties and outside his jurisdiction as the in-charge of a reserve
Battalion, there can be no question of the Court interdicting the
enquiry. The submission of Dr. Hooda that, if the petitioner were to
be subjected to an ROE in such circumstances, it would be
demoralizing, has obviously to be rejected. No official can claim any
right to act outside the boundaries of his jurisdiction; least of all a
member of a disciplined force such as the petitioner. In fact, Section
112 of the SSB Act, cited by Dr. Hooda himself, fortifies this position,
as it enjoins on every officer of the SSB to obey lawful commands of
his superior. A command to act beyond one’s jurisdiction cannot,
prima facie, be regarded as lawful, of which Section 112 would
obligate compliance. The mere heaping of encomiums and plaudits on
such a vigilante officer may not be excuse enough to condone his
acting in excess of jurisdiction.
42. We may also note that there is not a single written
communication from the IG SSB to the petitioner, requiring him to
carry out operations outside his jurisdiction. The mere fact that the
Additional SCOI, the Commandant and the IG BSF may have
accepted this submission of the petitioner cannot advance his case.
Ultimately, the disciplinary authority of the petitioner is the
Commandant, and the views of the Additional SCOI or the IG BSF
may, at the very highest, carry some persuasive value, which may
have to be taken into account before deciding on the final order to be
passed consequent to the ROE. The acceptance of the petitioner’s
contention, by the Addl SCOI, the Commandant and the IG, cannot be
Signature Not Verified
W.P.(C) 2410/2022 Page 19 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
regarded as determinative of its acceptability as an excuse for the
petitioner having acted in excess of jurisdiction, or even its truth. If,
therefore, the ADG deemed it appropriate to direct holding of an ROE,
the decision cannot be said to be unjustified on merits.
43. Prayer (a) in the writ petition, for quashing the remarks entered
by the IG SSB on the COI on 12 August 2018 was not seriously
canvassed by Dr. Hooda during arguments and is, even otherwise,
devoid of substance, for the simple reason that, after the COI, the Addl
SCOI was convened, on the findings of which Dr. Hooda himself
relies.
44. During arguments, Dr. Hooda took strong exception to the
Noting dated 19 December 2018 of the IG SSB to the BSF,
recommending institution of disciplinary action against the petitioner.
45. Prayer (b) in the writ petition seeks quashing of communication
dated 19 December 2018 whereunder the DIG (Confid), BSF has
conveyed, to the IG, the direction to initiate action, as deemed fit,
against the petitioner, under the BSF Act and the BSF Rules, apropos
the incident which took place at Sarisha Market on 22 February 2018.
We fail to understand how such a prayer can be made at all. The
communication dated 19 December 2018 is an internal letter from one
officer of the BSF to another, which does not prejudice the petitioner
in any manner. Interestingly, there is no prayer to quash the charge-
sheet dated 1 April 2020 issued by the Commandant, BSF; though,
Signature Not Verified
W.P.(C) 2410/2022 Page 20 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
even had there been, no case for granting the prayer would be made
out.
46. Prayer (c) in the writ petition seeks quashing of the
communication dated 21 September 2021 whereby the decision of the
ADG to initiate ROE has been conveyed. Again, this communication
merely directs holding of a ROE. No final view regarding the
culpability, or otherwise, of the petitioner, is expressed. The second
proviso to Rule 45B(2) of the BSF Rules indisputably requires the
Commandant to refer the matter to the higher authority at whose
instance he enquired into the matter. This itself indicates that the
Commandant may be the authority who passes the final order of
punishment, or exoneration, but that he cannot dismiss the charge
before referring the matter to the authority at whose instance he
enquired into the charge.
47. Unfortunately, the BSF Rules are silent on the course of action
which the higher officer could pursue once the case is referred to him
by the Commandant under the second proviso to Rule 45B(2).
Indeed, Dr. Hooda, too, did not seek to contend that the higher officer
could not direct an ROE on the case being referred to him by the
Commandant under the second proviso to Rule 45B(2). His
contention, in that regard, is two fold; firstly, that, in the facts of the
present case, and especially in view of the concurrent findings of the
Addl SCOI, the Commandant and the IG, ROE ought not to have been
directed, and, secondly, that the ADG could not have, in any case, so
directed, as the case had been referred to the Commandant by the DG,
Signature Not Verified
W.P.(C) 2410/2022 Page 21 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
not the ADG, and the Commandant, too, had, therefore, forwarded the
papers, on 4 February 2021, to the DG (EC), and not to the ADG.
48. On the first submission, we, for the reasons already elucidated
earlier, are unable to agree with Dr. Hooda. Once the file had been
forwarded by the Commandant to the higher officer under the second
proviso to Rule 45B(2), there is no embargo, in the statute or
elsewhere, on the higher officer, if he is convinced that further
evidence is required to be garnered in the matter, directing an ROE.
Dr. Hooda, too, is unable to refer us to any proscription in that regard.
On whether the facts of the case warranted such a direction, we are not
inclined to sit in appeal over the discretion of the higher officer. We
are exercising certiorari jurisdiction, which is concerned more with the
manner in which power is exercised by the authority, rather than the
subjective merits of the authority’s decision. The peripheries of
certiorari jurisdiction are well delineated in the following classic
passages from Syed Yakoob v K.S. Radhakrishnan18:
“7. The question about the limits of the jurisdiction of High
Courts in issuing a writ of certiorari under Article 226 has been
frequently considered by this Court and the true legal position in
that behalf is no longer in doubt. A writ of certiorari can be issued
for correcting errors of jurisdiction committed by inferior courts or
tribunals: these are cases where orders are passed by inferior courts
or tribunals without jurisdiction, or is in excess of it, or as a result
of failure to exercise jurisdiction. A writ can similarly be issued
where in exercise of jurisdiction conferred on it, the Court or
Tribunal acts illegally or in properly, as for instance, it decides a
question without giving an opportunity to be heard, to the party
affected by the order, or where the procedure adopted in dealing
with the dispute is opposed to principles of natural justice. There
is, however, no doubt that the jurisdiction to issue a writ of
certiorari is a supervisory jurisdiction and the Court exercising it is18 AIR 1964 SC 477
Signature Not Verified
W.P.(C) 2410/2022 Page 22 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
not entitled to act as an Appellate Court. This limitation necessarily
means that findings of fact reached by the inferior Court or
Tribunal as result of the appreciation of evidence cannot be
reopened or questioned in writ proceedings. An error of law which
is apparent on the face of the record can be corrected by a writ, but
not an error of fact, however grave it may appear to be. In regard to
finding of fact recorded by the Tribunal, a writ of certiorari can be
issued if it is shown that in recording the said finding, the Tribunal
had erroneously refused to admit admissible and material evidence,
or had erroneously admitted inadmissible evidence which has
influenced the impugned finding. Similarly, if a finding of fact is
based on no evidence, that would be regarded as an error of law
which can be corrected by a writ of certiorari. In dealing with this
category of cases, however, we must always bear in mind that a
finding of fact recorded by the Tribunal cannot be challenged in
proceedings for a writ of certiorari on the ground that the relevant
and material evidence adduced before the Tribunal was insufficient
or inadequate to sustain the impugned finding. The adequacy or
sufficiency of evidence led on a point and the inference of fact to
be drawn from the said finding are within the exclusive jurisdiction
of the Tribunal, and the said points cannot be agitated before a writ
Court. It is within these limits that the jurisdiction conferred on the
High Courts under Article 226 to issue a writ of certiorari can be
legitimately exercised.
8. It is, of course, not easy to define or adequately describe
what an error of law apparent on the face of the record means.
What can be corrected by a writ has to be an error of law; it must
be such an error of law as can be regarded as one which is apparent
on the face of the record. Where it is manifest or clear that the
conclusion of law recorded by an inferior Court or Tribunal is
based on an obvious mis-interpretation of the relevant statutory
provision, or sometimes in ignorance of it, or may be, even in
disregard of it, or is expressly founded on reasons which are wrong
in law, the said conclusion can be corrected by a writ of certiorari.
In all these cases, the impugned conclusion should be so plainly
inconsistent with the relevant statutory provision that no difficulty
is experienced by the High Court in holding that the said error of
law is apparent on the face of the record. It may also be that in
some cases, the impugned error of law may not be obvious or
patent on the face of the record as such and the Court may need an
argument to discover the said error; but there can be no doubt that
what can be corrected by a writ of certiorari is an error of law and
the said error must, on the whole, be of such a character as would
satisfy the test that it is an error of law apparent on the face of the
record. If a statutory provision is reasonably capable of two
constructions and one construction has been adopted by the
inferior Court or Tribunal, its conclusion may not necessarily or
Signature Not Verified
W.P.(C) 2410/2022 Page 23 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
always be open to correction by a writ of certiorari. In our opinion,
it neither possible nor desirable to attempt either to define or to
describe adequately all cases of errors which can be appropriately
described as errors of law apparent on the face of the record.
Whether or not an impugned error is an error of law and an error of
law which is apparent on the face of the record, must always
depend upon the facts and circumstances of each case and upon the
nature and scope of the legal provision which is alleged to have
been misconducted or contravened.”
It is also well settled that certiorari jurisdiction, though classically
exercised in respect of judicial or quasi-judicial exercise of power by
the authority whose decision is under scrutiny, is equally applicable to
executive action which affects the civil rights of the citizen. In
exercising such jurisdiction, however, the High Court does not sit as a
court of appeal. Much less can the High Court interfere with a
decision which is jurisdictionally unexceptionable, merely because it
feels such a decision ought not to have been taken in the facts of the
case.
49. The second exception that Dr. Hooda has taken to the impugned
communication dated 21 September 2021 is to the ADG (EC) having
taking a decision to direct an ROE following the file having been sent
to the DG by the Commandant under the second proviso to Rule
45B(2). His submission is that it was the DG who had to take the
decision, and not the ADG (EC), as the DG had referred the case of
the petitioner to the Commandant for disciplinary action.
50. The contention was, at first instance, facially acceptable, but, on
a more incisive reading of the statute, and the counter-affidavit filed
by the respondents, does not sustain. One may refer, in this context,
Signature Not Verified
W.P.(C) 2410/2022 Page 24 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
to the following averments, contained in the parawise reply, in the
counter-affidavit, to paras 5(b) and (c) of the writ petition:
“… It is submitted that the mandate of above provisions is very
clear. It obligates to refer case to “such superior authority” who
referred the case i.e. DG BSF in present case, only in cases where
the authority hearing the accused decides to dismiss the charge.
The reference was to be submitted to HQ DG BS, through channel
of command and the authorities in the said channel of command
were required to examine the case/reference and on finding the
reference in order, give their recommendation. The reference was
accordingly examined at HQ SDG (EC) and it was found that the
Comdt of the Petitioner has proposed to dismiss the charge on the
basis of insufficient evidence and therefore, it was directed to
collect evidence and take further necessary action accordingly. It
is further submitted that the said provisions under Rule 45B of
BSF Rules are not applicable in case where further disciplinary
action is warranted by the competent authority. Therefore, the
decision of ADG (EC) directing the concerned Frontier HQ to
initiate ROE was completely within the ambit of the provisions of
BSF Act & Rules. It is worth to mention here that ROE officer
only records the evidence so as to the Competent Authority may
arrive at a just and proper decision whether to proceed further or
dismiss the charge. Further, it is submitted that as per Rule 51-A
of BSF Rules, the Comdt. can dismiss the charge and he needs not
to refer the matter to superior authority for getting the charge
dismissed. No prejudice, therefore, have been caused to the
Petitioner on this count.”
The impugned communication dated 21 September 2021 does not
suffer from any inherent defect of jurisdiction. It merely
communicates the view of the ADG (EC) that the resolution of the
case against the petitioner, one way or the other, required recording of
evidence, for which an ROE was ordered. No final opinion, regarding
the guilt or innocence of the petitioner, apropos the charge against
him, is expressed.
51. As was required by the second proviso to Rule 45B (2) of the
BSF Rules, the Commandant forwarded the file to the DG (EC), BSF,
Signature Not Verified
W.P.(C) 2410/2022 Page 25 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
before finally dismissing the charge against the petitioner. It is not as
though the ADG (EC) has taken any final view in the matter. The
respondents have, in their counter-affidavit, clearly stated that the final
view regarding the decision of the Commandant to dismiss the charge
against the petitioner, would be taken by the DG. The process is still
at an intermediate stage. Nothing prevents the DG from calling for
further evidence before arriving at his decision.
52. The respondents have relied on Section 5(2)19 of the BSF Act,
and rightly. Under Section 5(2), the DG is assisted by various officers,
one of whom would unquestionably be the ADG. In examining the
file as put up to him by the Commandant, therefore, if the ADG, in
assisting the DG, examines whether the matter would require greater
examination or more evidence, in the absence of any proscription in
that regard, the ADG cannot be said to have acted in excess of
jurisdiction. It is not as if the entire file has been closed without the
DG examining the matter. At this stage, only an ROE has been
ordered. We are unable, therefore, to agree with Dr. Hooda that the
impugned communication dated 21 September 2021 suffers from any
such error of jurisdiction as would justify interference in certiorari.
53. It is settled, through several judicial authorities, that Courts
should ordinarily not stay inquiry proceedings, unless they suffer from
some inherent default of jurisdiction.
19 (2) The Director-General shall, in the discharge of his duties under this Act, be assisted by such number
of Inspectors-General, Deputy Inspectors-General, Commandants and other officers as may be prescribed by
the Central Government.
Signature Not Verified
W.P.(C) 2410/2022 Page 26 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
54. The decision to direct an ROE has not resulted in any prejudice
to the petitioner. Dr. Hooda submits that, because of the pendency of
the proceedings, the petitioner is not getting his due promotion, or
rewards from the Customs authorities. These are but inexorable
sequiturs to the pendency of the proceedings. If anything, the
petitioner has himself to blame for having approached this Court at an
interlocutory stage, instead of allowing the ROE to proceed. For all
one knows, the petitioner might have been exonerated by now.
55. That said, we are not expressing any final opinion in the matter
one way or the other. The guilt, or innocence, of the petitioner, would
have to be examined, and a decision taken thereon by the respondents
in accordance with law.
56. No case is, therefore, made out, to grant the reliefs sought by
the petitioner.
57. The writ petition is, therefore, dismissed, with no orders as to
costs.
C. HARI SHANKAR, J.
AJAY DIGPAUL, J.
APRIL 2, 2025
dsn
Click here to check corrigendum, if any
Signature Not Verified
W.P.(C) 2410/2022 Page 27 of 27
Digitally Signed By:AJIT
KUMAR
Signing Date:02.04.2025
13:57:19
[ad_1]
Source link