Jammu & Kashmir High Court
2023:Jklhc-Jmu:5743 vs Union Of India Through Home Secretary on 16 July, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
2023:JKLHC-JMU:5743
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:- SWP No. 1227/2009
Khambod Singh
S/o Sh. Mukat Singh,
R/o Shankerpur (Ayaran),
Tehsil Etawah, District Etawah (U.P.),
Age 42 years.
.... Petitioner
Through: Mrs. Surinder Kour, Sr. Advocate with
Mr. Sunil Kumar, Advocate.
Vs
1. Union of India through Home Secretary, Ministry of Home
Affairs, Government of India, New Delhi.
2. Director General, Border Security Force, CGO Complex, Lodhi
Road, New Delhi.
3. Inspector General of Border Security Force, Frontier Head
Quarters, Paloura Camp, Jammu.
4. Deputy Inspector General of Border Security Force, Sector
Head Quarter, Paloura Camp, Jammu.
5. Commandant, 91 Bn. BSF Sector C/o 56 APO.
6. Officiating Commandant (2IC), 91 Bn. BSF C/o 56 APO.
..... Respondents
Through: Mr. Vishal Sharma, DSGI.
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
16.07.2025
1. Heard learned counsel for the parties. Perused the writ
pleadings and the record therewith also the record produced from
the end of the respondent No. 1 relating to the subject matter of
the case.
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2. Through the medium of this writ petition, the petitioner
came forward with a cause of action to claim the following reliefs:
i) To quash order No. Estt./613/91 BN/2008/
11185-94 dated 17th July, 2008, issued by
respondent No. 6, Officiating Commandant, 91 Bn.
BSF by which the petitioner has been awarded
sentence “to be reduced to the rank of Constable
and to forfeit pay and allowances for three months
and also to quash proceedings of Summary
Security Force Court and the charges framed
against the petitioner, by issuance of writ of
certiorari;
ii) To issue directions to the respondents restraining
them to implement order No. Estt./613/91 BN/
2008/11185-94 dated 17th July, 2008, issued by
respondent No. 6, Officiating Commandant, 91 Bn.
BSF by which the petitioner has been awarded
sentence “to be reduced to the rank of Constable
and to forfeit pay and allowances for three months,
by issuance of writ of prohibition;
iii) To issue directions to the respondents to allow the
petitioner to work on the post of Head Constable
on which the petitioner is working on the post
prior to the issuance of order dated 17th July,
2008, by issuance of writ of mandamus;
iv) To declare order No. Estt/613/91 BN/2008/
11185-94 dated 17th July, 2008, issued by
respondent No. 6, Officiating Commandant, 91 Bn.
BSF by which the petitioner has been awarded
sentence “to be reduced to the rank of Constable
and to forfeit pay and allowances for three months
and the proceedings of Summary Security Force
2023:JKLHC-JMU:5743
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Court and also the charges framed against the
petitioner, as ultra virus, illegal, arbitrary,
unconstitutional, unjust and contrary to the
provisions of BSF Act and Rules and against the
provisions of principles of natural justice, by
issuance of writ of mandamus; OR
v) To issue any other writ, order or directions which
the Hon’ble Court may deem just and proper in the
facts and circumstances of the case in favour of
the petitioner and against the respondents with
costs.
3. The petitioner was appointed as a Constable in the Border
Security Force (BSF) on 10.06.1987 bearing belt No. 874342772.
Upon completion of his training at STC BSF, Bangalore, the
petitioner came to be posted at different places in different
States/Regions of India.
4. In the course of his service, the petitioner came to be
promoted to the post of Head Constable on 06.04.2002, besides
earning cash rewards and appreciation letters in relation to
performance of his service.
5. While posted in 91 Bn BSF at Painthee, Samba, J&K, the
petitioner is alleged to have indulged in a misconduct amounting
to an offence under the Border Security Force (BSF) Act, 1968
related to an alleged incident of 25.06.2008 at about 7.40 p.m.,
at the Border Out Post (BOP), Mazra, when the petitioner in fit of
rage is said to have hit SI-Prem Chandra Mishra No. 78002543 of
91 Bn with a stick on his legs accompanied by use of abusive
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language against the same very officer SI-Prem Chandra Mishra
which amounted to penal misconduct warranting action against
him under the Border Security Force (BSF) Act, 1968.
6. SI Prem Chandra Mishra (78002543) of 91 Bn BSF, posted
at Mazra post (Samba Sector) as Post Commander, came to
submit a written complaint thereby complaining against the
petitioner saying that in first week of June 2008 the petitioner
had reported asking for 15 days’ leave for which a requisite report
was made to the Company Commander by him (SI Prem Chandra
Mishra). On 24.06.2008, the Company Commander, on his way
back from patrol duty from Zero Line, had a stopover in the Camp
when the petitioner was afforded a meeting with him to be told
that leave would be granted but on the same day a log came from
Bn Hqr., to the Adjutant that there would be no leave sanction for
anyone because of scheduled Chamlyal Mela afterwards which
only personnel can go on leave. This direction was apprised to the
petitioner upon which he wanted to meet Company Commander
personally to be told in response that he can have a meeting at
09:30 p.m. after finishing his Gate Duty but at 7:30 p.m. the
petitioner came to him (SI Prem Chandra Mishra) and within ten
minutes got enraged and picked up a wooden log running helter-
skelter in the Camp creating nuisance, speaking obviously and
roughly that if he would not get leave today then he would kill
everybody. At the relevant point of time, when he (SI Prem
Chandra Mishra) was going for his evening bath, the petitioner
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came rushing to him giving two blows of wooden log on his (SI
Prem Chandra Mishra) feet and thereby injuring his right foot
leading to its bleading. This incident was immediately brought to
the notice of the Company Commander – Inspector Prem Singh
who came rushing and spoke to the petitioner. Witnesses were
enlisted to have witnessed the incident and they being :-
i) P. Jojo, (87655729);
ii) Surya Kant, (90499061);
iii) Lokman Singh, (90633830);
iv) K. Balashankar, (97005262);
v) B. P. Tiwari, (0415604) &
vi) Sarwan Paswan, (94911031).
In addition, five civilians at the gate were also witnesses and,
therefore, an action was solicited against the petitioner on the
basis of a complaint. It also stood mentioned in the complaint
that the petitioner was commanded by the Company Commander
to sit in the vehicle whereupon the petitioner again started
abusing and threatening that if somebody would write anything
against him he would suffer dire consequences and in that
scenario the petitioner was taken away by the Company
Commander in his vehicle to CHQ.
7. The witnesses named in the complaint are also said to have
penned down their individual testimonial version about the
incident to accompany the compliant of SI Prem Chandra Mishra.
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8. The complaint above referred of SI Prem Chandra Mishra,
Platoon Commander Border Out Post, Mazra, so made to the
Company Commander – Inspector Prem Singh was in turn
forwarded to the Commandant 91 Bn BSF, Painthee, Samba, J&K
who then was Mr. R. K. Dua by a written report bearing the
signature of Inspector Prem Singh, ‘F’ Coy, BOP Nanga.
9. In his written report, Inspector Prem Singh Came to make a
reference to the incident stating therein that upon getting
information about the incident he had rushed with Head
Constable M. N. Mahato and two guards to confront the petitioner
about the incident to be answered by him that he was not in his
senses at the time of charging SI Prem Chandra Mishra and
adding further version that when the petitioner was being
brought to the Company Headquarter at Nanga in the vehicle he
had again violent shouting abuses as reproduced in the said
report. Upon reaching Company Headquarters, the matter is said
to have been brought to the notice of 2 IC/Offg Commandant and
the petitioner was kept under guard.
10. Thus, Inspector Prem Singh along with his report forwarded
the complaint lodged by SI Prem Chandra Mishra and the
statements in writing of the witnesses.
11. The aforesaid course of action led to proceedings,
purportedly under rule 43 of BSF Rules, 1969 without being so
mentioned, by preparation of Form -Appendix-A by reference to
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section 53 of the Border Security Force Act, 1968 prepared on
28.06.2008 by the Offg. Commandant, 91 Bn, BSF Mr. R. K. Dua.
12. In the said Form, the place and date of offence stood
mentioned to be 25.06.2008, nature of offence mentioned to be
under section 20(a) of using criminal force to Superior Officer and
section 20(c) of using insubordinate language to Superior Officer,
of BSF Act, 1968, with plea of Guilty recorded, names of
witnesses mentioned and even findings also recorded as Guilty,
but instead of dealing with the case under section 53 of the BSF
Act, 1968 relatable to infliction of minor punishment, Offg.
Commandant, 91 Bn BSF directed the Record of Evidence to be
prepared by Narender Kumar, AC. This Form is duly signed by
the Offg. Commandant, 91 Bn, BSF and also the Adjutant 91 Bn,
BSF bearing date 28.06.2008.
13. On the same date of 28.06.2008, Record of Proceedings
under Appendix-A before the Offg. Commandant, 91 Bn, BSF by
reference of Rule 45 & 45(B) was prepared wherein it came to be
mentioned that the petitioner declined to cross-examine eight
witnesses namely:-
i) Insp. Prem Singh, 'F' Coy;
ii) SI. P. C. Mishra, 'F' Coy;
iii) HC M. N. Mahato, 'F' Coy;
iv) HC P. Jojo, 'F' Coy;
v) Ct. Lokman Singh, 'F' Coy &;
2023:JKLHC-JMU:5743
8 SWP No. 1227/2009
vi) Ct. Surya Kant, 'F' Coy;
vii) Ct. B. P. Tiwari, 'F' Coy;
viii) Cook Sharwan Paswan, 'F' Coy.
14. This Record of Proceedings also bears reference to the order
made by the Offg. Commandant 91 Bn, BSF with respect to
preparation of Record of Evidence (ROE) to be prepared by
Narender Kumar, AC.
15. On the same very date related to the proceedings being
conducted under rule 45/45 (B) of the BSF Rules, 1969, the
statement was ascribed to the petitioner that he had committed a
great sin and is feeling sorry for which requesting to be pardoned
for his offence and ready for any punishment but his children
should not suffer because of him. However, this statement is
unsigned by reference to the petitioner.
16. As Record of Evidence was solicited to be prepared in
terms of rule 45(2)(iii) of the BSF Rules, 1969, an order to the
said effect No. Estt/ROE-Kamod/91 Bn/2008/10078-82 dated
28.06.2008 is said to have been passed by the Offg.
Commandant, 91 Bn BSF by appointment of Narender Kumar,
AC (IRLA No. 10282618) as detailing officer to prepare Record of
Evidence(ROE) to be submitted by 05.07.2008 but this
appointment came to be rescinded after four days.
2023:JKLHC-JMU:5743
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17. For the reasons which are not forthcoming from the record
produced for perusal of this Court from the end of the
respondents related to the proceedings against the petitioner
leading to his punishment, it is not forthcoming as to what led to
supersession of appointment of Narender Kumar (IRLA No.
10282618) as detailing officer for preparing Record of Evidence
(ROE) in terms of rule 48 of the BSF Rules, 1969 when by an
order No. Estt/ROE-Kamod/91 Bn/2008/10361-68 dated
03.07.2008 in place of Narender Kumar appointment of
Himanshu Undeyria, Dy. Comdt., 91 Bn BSF, Ministry of Home
Affairs to prepare the Record of Evidence (ROE) was directed.
18. It is very pertinent to make an observation at this very stage
here that Himanshu Undeyria, Dy. Comdt. is the officer whose
signature appear on the Offence Report dated 28.06.2008
purportedly prepared under rule 43 of the BSF Rules, 1969
signed by Offg. Commandant, 91 Bn BSF wherein the petitioner
was said to have pleaded guilty against two counts of charges but
still an order for preparation of Record of Evidence (ROE) to be
made by Narender Kumar was issued by the Offg. Commandant,
91 Bn BSF obviously aiming to penalize the petitioner with a
preconceived mindset.
19. In his order No. Estt/ROE-Kamod/91 Bn/2008/10361-68
dated 03.07.2008 appointing Mr. Himanshu Undeyria as an
officer detailed for preparing Record of Evidence (ROE) in place of
Sh. Narender Kumar, AC, Mr. R. K. Dua, the Offg. Commandant,
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91 Bn BSF did not spell out as to whether Narender Kumar had
undertaken any preparation/exercise of Record of Evidence (ROE)
during the course of his assignment as detailing officer lasting for
four days or not and if prepared where said exercise came to be
placed and if not then the reason for non-compliance and non-
action at the end of Mr. Narender Kumar, AC.
20. The Offg. Commandant, 91 Bn BSF, on the one hand while
ordering Record of Evidence (ROE) to be prepared against the
petitioner which was yet to be prepared to be considered in terms
of rule 51 of the BSF Rules, 1969, simultaneously prepared a
charge-sheet dated 28/06/2008 under rule 53(2) of BSF Rules,
1969 which is otherwise an incident to take place after a hearing
upon Record of Evidence (ROE) prepared has taken place under
rule 51 of the BSF Rules, 1969.
21. The charge-sheet dated 28.06.2008 so prepared against the
petitioner under rule 53(2) Appendix -VI is as under:-
APPENDIX-VI
RULE 53(2)CHARGE SHEET
The accused, No. 874342772 Kambod Singh of 91 Battalion BSF is charged
with :-
BSF ACT 1968 BSF ACT 1968 UNDER SEC. 20(a)
U/S. 20(A) USING CRIMINAL FORCE TO HIS SUPERIOR OFFICER
in that he,
at BOP Mazra on 25 June 2008 at about 0740 hrs struck with
stick on both legs of No. 78002543 SI Prem Chandra Mishra
of same unit.
IInd Charge
BSF ACT 1968 BSF ACT 1968 UNDER SEC. 20(c)
U/S. 20(c) USING IN-SUBORDINATE LANGUAGE TO HIS SUPERIOR
OFFICER
2023:JKLHC-JMU:5743
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in that he,
at BOP Mazra on 25 June 2008 at about 0815 hrs used the
following in-subordinate language to No. 78002543 SI P C
Mishra “NAUKRI GAYI BHAD MEIN, MADARCHOD TUJHE
TERE GHAR TAK NAHI CHOUDUNGA. BAHANCHOD KYA
SAMAJHTA HAI TU, WRITTEN KARYAVAHI KAREGA TO
TUJHE TERA GHAR TAK NAHI CHODUNGA” and words to
that effect.
Place: Painthee, Samba (J&K)
Date, the 28 June, 2008
sd/-
( R K DUA)
OFFG COMMANDANT
91 BATTALION BSF
22. Mr. Himanshu Undeyria, Dy. Comdt. purportedly engaged
himself to prepare Record of Evidence (ROE) on 05.07.2008 and
06.07.2008. Mr. Himanshu Undeyria, Dy. Comdt. prepared
Record of Evidence (ROE) by examining SI P. C. Mishra, HC P.
Jojo, Ct. Surya Kant, Cook Sarwan Paswan, Ct. B. P. Tiwari on
05.07.2008 whereas Inspector Prem Singh & HC M. N. Mahato
and the petitioner on 06.07.2008.
23. In his examination, SI Prem Chandra Mishra, the original
complainant, came forward narrating a version as set out in his
original complaint with an added version that the Offg. Coy.
Commander Insp. Prem Singh, ‘F’ Coy, upon reaching the BOP
Mazra, so acted by saying that he was giving to the petitioner as
well as to the complainant – SI Prem Chandra Mishra twenty
minutes to decide what to do next to which SI Prem Chandra
Mishra had said that he does not wish to leave the petitioner and
desired the case to be forwarded ahead as he has giving a
complaint in writing to the Commandant on which Offg. Coy.
Commander, 91 Bn BSF Prem Singh stated that the petitioner
was saying sorry but the same was refused by the SI Prem
2023:JKLHC-JMU:5743
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Chandra Mishra to be accepted and wanted the complaint to be
forwarded to BN HQ.
24. This latest version was all missing in his original complaint
so made by SI Prem Chandra Mishra. It came to be further stated
by SI Prem Chandra Mishra that he had followed Offg. Coy.
Commander, 91 Bn BSF to Coy., Hqr where the matter was
reported to the Adjutant & 2 IC of the Unit who is also said to
have come to the BOP and enquired about the complete matter. It
further came to be stated that the complaint SI Prem Chandra
Mishra had gone to Ramgarh Hospital for his first-aid.
25. The petitioner is said to have made no cross-examination of
SI Prem Chandra Mishra except being attributed a statement of
being sorry for the incident.
26. All the witnesses similarly examined were allegedly refused
by the petitioner to be cross-examined by him.
27. In his statement, Inspector Prem Singh, ‘F’ Coy, then
officiating as Company Commander ‘F’ Coy, came up with a
version which is not in sync with the version of SI Prem Chandra
Mishra about the course of things taking place upon arrival of
Inspector Prem Singh at BOP Mazra. In his examination,
Inspector Prem Singh stated that he telephonically informed
Adjutant and the Officiating Commandant 91 Bn BSF about the
complete incident in response whereto the Offg. Commandant, 91
Bn BSF directed him to prepare detailed report of the incident
2023:JKLHC-JMU:5743
13 SWP No. 1227/2009
and that he was also reaching BOP Nanga and that Offg.
Commandant, 91 Bn BSF – R. K. Dua along with Jaswinder Singh
DC/QM and Narender Yadav AC reached BOP Nanga in front of
all of whom the petitioner admitted of having committed a
mistake by using force on SI Prem Chandra Mishra and asked for
pardon whereupon Offg. Commandant, 91 Bn BSF directed
Inspector Prem Singh to give a detailed report and get medical of
SI Prem Chandra Mishra conducted. It is in the said background
that Inspector Prem Singh had prepared his report dated
27.06.2008 bearing No. ESTT/IN-DISC/F/91/08/199 comprising
of ten leaves and addressed and submitted to the Commandant,
91 Bn BSF.
28. Insofar as the medical report of the SI Prem Chandra Mishra
is concerned, as obtaining on the record, it does not make
mention of any physical injury except the words “Injuries Noted”
and the names of the medicines prescribed without stating the
treatment administered to the petitioner with respect to any
wound/cut where the bleading is alleged to have taken place.
29. Mr. Himanshu Undeyria, Dy. Comdt., 91 Bn BSF came to
forward Record of Evidence (ROE) accompanied with a Certificate
under rule 48 of the BSF Rules, 1969 to the Offg. Commandant,
91 Bn BSF Sh. R. K. Dua.
30. The respondent No. 5 by virtue of a communication
No. Estt/610(SSFC-KS/91Bn/2008/10844 dated 13.07.2008
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addressed to the petitioner came to apprise him that he was
subjected to Summary Security Force Court trial to be held on
17.07.2008 without bearing any reference in the communication
as to whether the Summary Security Force Court convening order
has been passed or not.
31. By virtue of a communication No.Estt/610(SSFC-KS)/
91Bn/2008/10925 dated 14.07.2008, the respondent No. 5 came
to forward a copy of charge-sheet and a copy of Record of
Evidence (ROC) comprising of 27 leaves to the petitioner with
respect to his Summary Security Force Court trial scheduled for
17.07.2008 again without bearing any recital in the
communication as to vide which order the Summary Security
Force Court trial was ordered to be convened.
32. The petitioner is said to have been put on Summary Security
Force Court trial under section 70 of the BSF Act, 1968 in terms
of an Order No. Estt./610(SSFC-C-KS)/91Bn/2008/10986-94
dated 15/07/2008 addressed to the petitioner with respect to
holding of Summary Security Force Court on 17/07/2008.
33. The purported proceedings of Summary Security Force
Court came to be held on 17.07.2008 by the Offg. Commandant,
91 Bn BSF – Mr. R. K. Dua in which the court was presided over
by him, and the Friend of the accused nominated being Narender
Yadav, AC, 91 Bn BSF, the same very person who was first
detailed to prepare Record of Evidence (ROE) in the case.
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34. The petitioner’s purported trial by the Summary Security
Force Court seems to have been put into effect by the Offg.
Commandant, 91 Bn BSF by ascribing and attributing a plea of
guilty to the petitioner with respect to both charges as set out in
Appendix – VI, Rule 53(2) of the BSF Rules, 1962 in the form of
charge-sheet dated 14.07.2008 similarly texted as Appendix-VI
Rule 53(2) charge sheet dated 28.06.2008 meaning thereby the
charge-sheet was already prepared under rule 53(2) of the BSF
Rules, 1969 before the Record of Evidence (ROE) preparation and
that is live exhibit of the trial of the petitioner being a farce.
35. The charge-sheet dated 28.06.2008 had already been
reproduced herein above wherein charge-sheet dated 14.07.2008
is reproduced herein next to exhibit that both are mirror images
of each other :-
APPENDIX-VI
RULE 53(2)CHARGE SHEET
The accused, No. 874342772 Kambod Singh of 91 Battalion BSF is charged
with :-
BSF ACT 1968 BSF ACT 1968 UNDER SEC. 20(a)
U/S. 20(A) USING CRIMINAL FORCE TO HIS SUPERIOR OFFICER
in that he,
at BOP Mazra on 25 June 2008 at about 0740 hrs struck with
stick on both legs of No. 78002543 SI Prem Chandra Mishra
of same unit.
IInd Charge
BSF ACT 1968 BSF ACT 1968 UNDER SEC. 20(c)
U/S. 20(c) USING IN-SUBORDINATE LANGUAGE TO HIS SUPERIOR
OFFICER
in that he,
at BOP Mazra on 25 June 2008 at about 0815 hrs used the
following in-subordinate language to No. 78002543 SI P C
Mishra “NAUKRI GAYI BHAD MEIN, MADARCHOD TUJHE
TERE GHAR TAK NAHI CHOUDUNGA. BAHANCHOD KYA
SAMAJHTA HAI TU, WRITTEN KARYAVAHI KAREGA TO
TUJHE TERA GHAR TAK NAHI CHODUNGA” and words to
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that effect.
Place: Painthee, Samba (J&K)
Date, the 14 July, 2008
sd/-
( R K DUA)
OFFG COMMANDANT
91 BATTALION BSF
36. The petitioner was ascribed a statement that he has
committed a huge blunder for which he was deeply sorry and that
he had already put up an application for proceeding on voluntary
retirement and would continue to feel sorry even after going back
home and that he be given some less severe punishment.
37. The Offg. Commandant, 91 Bn BSF – Sh. R. K. Dua came
forward with the purported verdict from the Summary Security
Force Court as well as Sentence of holding the petitioner guilty of
both charges and sentenced to be reduced to the rank of
Constable along with forfeiture of Pay and Allowances of
three months.
38. The verdict and the sentence is dated 17.07.2008 which
came to be counter signed by Deputy Inspector General, BSF,
Jammu on 07.08.2008.
39. The promulgation of the sentences upon the petitioner came
to be carried out under rule 159 on 17.07.2008 by Offg.
Commandant, 91 Bn BSF.
40. The petitioner came forward with the institution of the
present writ petition on 13.07.2009 throwing challenge to the
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punishment inflicted upon him and the trial conducted against
him on the grounds as set out in para 7(i) to (xi).
41. The petitioner has in fact challenged the entire course of
action leading to punishment inflicted upon him against the
provisions of the BSF Act and the Rules. The petitioner has, in
very categoric terms, questioned the framing of a charge-sheet
under Rule 53 of the BSF Rules, 1969 without preparation of any
offence report and without any enquiry preceding thereto.
42. The petitioner has stated that no offence report under Rule
43 of BSF Rules, 1969 was prepared in his case which would
have resulted in follow-up action under Rule 45. The petitioner
has also taken an exception to the change of detailing officer- Sh.
Narender Kumar, AC who was first appointed to prepare Record
of Evidence (ROE) and in his place substituting Mr. Himanshu
Undeyria, Dy. Comdt., 91 Bn BSF, who is alleged to have carried
out mechanically Record of Evidence (ROE) exercise without
affording the petitioner an opportunity of cross-examining the
witnesses and without witnesses being recorded in his presence.
The petitioner has also asserted that he did not plead guilty as
attributed to him in terms of his trial under Summary Security
Force Court. The petitioner has also questioned the competence
of Offg. Commandant, 91 Bn BSF – R. K. Dua to act with full
authority of the Commandant in terms of BSF Act, 1968 so as to
be competent to deal with the delinquent BSF enrolled person as
the petitioner was at the relevant point of time.
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43. On the other hand, the respondents in their reply have
literally drawing support from the proceedings of the case to show
that the petitioner was guilty of the misconduct and, therefore, on
the basis of Record of Evidence (ROE) as well as the proceedings
of Summary Security Force Court the petitioner was found
deserving to be punished which as per the discretion of the
respondent No. 5 came to be inflicted by demoting the petitioner
and directing withholding of his pay and allowance for a given
period of time.
44. Now coming to the appraisal of the case on its merits,
factual as well as legal, even if it is to be assumed that the
petitioner did indulge in the misconduct as reported by SI Prem
Chandra Mishra which warranted the petitioner to be dealt with
under BSF Act, 1968 and the BSF Rules, 1969, still the legal
course of action should have been governed and guided as per the
mandate of the BSF Act, 1968 and the BSF Rules, 1969 and not
in by loose manner.
45. At the very inception of reporting of alleged misconduct of
the petitioner to the respondent No. 5, a plea of guilty came to be
attributed to the petitioner by none else than the respondent No.
5 himself as is borne out from appendix-A Form signed by the
respondent No. 5 dated 28.06.2008 being the very next day of
report dated 27.06.2008 made by the Company Commander-
Prem Singh, ‘F’ Coy, 9Bn BSF whereby the alleged misconduct of
the petitioner was reported to the respondent No. 5.
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19 SWP No. 1227/2009
46. If the petitioner was found to be in a state of being guilty by
his own reading and finding as recorded by the respondent No. 5
acting upon the plea of guilty purportedly made by the petitioner,
then the very purpose of putting the case for Record of Evidence
(ROE) and then convening a Summary Security Force Court was
nothing but an exercise aimed to act upon a preconceived mind to
penalize the petitioner heavily and harshly rather than subjecting
him to minor punishments which course of option was first open
to the respondent No. 5 in the face of purported plea of guilty so
made by the petitioner.
47. It is, thus, a pointer to the fact that the proceedings from the
end of the respondent No. 5 was set into effect bearing pre-
conceived and biased mindset with a judgment already made that
the petitioner needed to be fixed by tagging plea of guilty to him
and the rest of the things in the name of Record of Evidence
(ROE) and Summary Security Force Court trial was a matter of
going through motions, which cannot be name of a fair trial of a
BSF enrolled person.
48. Therefore, this Court finds the proceedings vitiated with said
illegality which is further confirmed from the fact that instead of
generating offence report in terms of Rule 43 of the BSF Rules,
1969 what was actually generated against the petitioner is a
charge-sheet in terms of rule 53 of the BSF Rules, 1969 which
legally comes into existence only after a fact finding enquiry in the
form of Record of Evidence (ROE) comes to be laid before the
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20 SWP No. 1227/2009
Commandant, thereby prima-facie establishing that there is a
case for the trial of an accused BSF personnel in which trial he
may prove himself innocent of the charge to be framed against
him or may suffer conviction but by no stretch of legality and
legitimacy a Commandant of Unit of BSF can be heard to say that
charge-sheet under rule 53 of BSF Rules, 1969 can substitute
offence report envisaged under rule 43. This is the precise
situation which has happened in this case that the charge-sheet
actually became offence report and, therefore, the cart was put
before the horse in the matter of trial of the petitioner.
49. Another vitiating factor is that without anything obtaining
on the record of the file produced for the perusal of this court
from the end of the respondents relatable to the trial of the
petitioner as to what actually led the respondent No. 5
Commandant to change Mr. Narender Kumar, AC first appointed
as a detailing officer for preparing Record of Evidence (ROE) by
Himanshu Undeyria, Dy. Comdt., 91 Bn BSF. The respondent No.
5 has put in no reasons as to how and why Mr. Narender Kumar,
AC for three days of being a detailing officer acted or omitted to
prepare Record of Evidence (ROE) in the case.
50. The petitioner is not wrong in his plea that change of
Narender Kumar as detailing officer was without any reason and
basis and, therefore, the proceedings for preparation of Record of
Evidence (ROE) conducted by Himanshu Undeyria, Dy. Comdt.,
91 Bn BSF was all an eye-wash in which everything was
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21 SWP No. 1227/2009
attributed to the petitioner in terms of purported admission of the
incident with an objective to leave the petitioner defenceless. It is
not understandable as to why Mr. Narender Kumar, AC who was
first deputed and then removed as a detailing officer was then
assigned as a friend of the petitioner in the Summary Security
Force Court proceedings.
51. There is no examination of any witness in the Summary
Security Force Court proceedings except a direct plea of guilty
being attributed to the petitioner and thereupon punishment
getting inflicted upon the petitioner by reduction in the rank and
stoppage of his pay and allowances.
52. When this Court examines the punishment so inflicted upon
the petitioner of reduction of rank from Head Constable to
Constable while remaining in the same Battalion, this Court is
left to wonder if the petitioner had ventured to indulge in alleged
misconduct in rage of being refused leave applied for, then
whether the petitioner being demoted in his rank and expected to
serve the same battalion or for that matter any other battalion of
BSF would be doing it in a good pose and state of mind and that
is a pointer to the fact that actual accusation against the
petitioner is more than what meets an eye.
53. The Division Bench of the Hon’ble High Court of Delhi in the
case of “Balvinder Singh Vs Union of India & others” 2010
(172) DLT 200 came to deal extensively with the essence of
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application of the Border Security Force Act, 1968 and the Border
Security Force Rules, 1969 in the context for trial of BSF
personnel and held the letter and spirit compliance of the trial
provisions obtaining in the Act as well as in the Rules being non-
negotiable considering the end purpose and end objective of any
given trial against a BSF personnel being put up for trial for act of
omission or commission amounting to offence/s as provided in
chapter III sections 14 to 47 of the Border Security Force Act,
1968. This Court draws support from the reading of the said
judgment with respect to the examination of the facts and
circumstances of the present case to hold that the very
accusation against the petitioner and the trial based thereupon
was a farce without real and truthful projection of facts being
there from the very beginning.
54. Even the allegation of injuring SI Prem Chandra Mishra by
hitting of stick is not substantiated as a fact as there is no such
medical opinion on record reporting the injury as alleged to have
been suffered by said SI Prem Chandra Mishra.
55. Cumulative effect of all the aforesaid facts and
circumstances of the case would render the very trial of the
petitioner vitiated with illegality and, therefore, rendering the
punishment inflicted upon him also as an illegality admitting of
scope for its judicial review warranting it to be set aside.
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23 SWP No. 1227/2009
56. The writ petition filed by the petitioner is, thus, allowed by
setting aside Order No.Estt./613/91 BN/2008/11185-94 dated
17th July, 2008 read with consequent confirmation order
whatsoever.
57. The petitioner shall be entitled to his reinstatement as Head
Constable with effect from 17th July, 2008 itself along with the
consequent service benefits whatsoever accrued on account of
being restored as Head Constable, BSF.
58. Disposed of.
59. Original record produced by the respondents to be returned
back against proper receipt by retaining the Xerox copy of the
same with the case file.
(RAHUL BHARTI)
JUDGE
JAMMU
16.07.2025
Muneesh
Whether the judgment is speaking : Yes
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