Delhi High Court
Sumit Sangwan vs Union Of India And Ors on 15 January, 2025
Author: Navin Chawla
Bench: Navin Chawla
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 02.12.2024
Pronounced on: 15.01.2025
+ W.P.(C) 13248/2022
SUMIT SANGWAN .....Petitioner
Through: Mr.Ankur Chhibber,
Mr.Anshuman Mehrotra, Advs.
versus
UNION OF INDIA AND ORS .....Respondents
Through: Mr.Mukul Singh, CGSC,
Ms.Ira Singh, Mr.Aryan Dhaka,
Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE SHALINDER KAUR
JUDGMENT
NAVIN CHAWLA, J.
1. The present petition has been filed by the petitioner challenging
the Order dated 06.02.2022 passed by the respondent no.1, whereby
the petitioner has been dismissed from service with immediate effect.
2. The petitioner further prays for directions to the respondents to
reinstate the petitioner back in service with effect from 06.02.2022,
and grant him all service benefits from the said date, including
seniority, rank, pay, arrears etc. with interest @ 18% p.a.
BRIEF FACTS
3. The petitioner joined the Border Security Force (BSF) as an
Assistant Commandant (AC) (Direct Entry) on 19.11.2012, whereafter
he was posted to the 145th Bn.
4. In terms of the Order dated 26.02.2016 issued by the Deputy
Inspector General (DIG), a Board of Officers (BOO) was detailed to
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conduct a surprise check of the entire troops deployed at the BOP
Srimantapur to verify and look into the alleged smuggling activities
taking place in the area.
5. In furtherance of the same, on the morning of 27.02.2016, Sh.
Ganesh Kumar, who was the Presiding Officer of the BOO, along
with the other team members of the search party came to the BOP
Srimantapur and started the search operation. During the search,
Rs.2.54 lakhs in cash was recovered from the petitioner.
6. On 29.02.2016, the respondents conducted a Staff Court of
Inquiry (SCOI) to inquire into the circumstances under which troops
of the 145th Bn, BOP Srimantpur, were found in possession of various
amounts of cash by the BOO on 27.02.2016.
7. Pursuant thereto, the petitioner was charged with the following
three charges by way of Charge Sheet dated 02.05.2017, issued by the
Commandant of the 168th Bn, BSF:
FIRST CHARGE COMMITTING A CIVIL OFFENCE THAT
BSF ACT 1968 IS TO SAY CRIMINAL MISCONDUCT
SECTION- 46 FOR HAVING BEEN A PUBLIC SERVANT
IN POSSESSION OF PECUNIARY
RESOURCES DISPROPORTIONATE TO
HIS KNOWN SOURCE OF INCOME FOR
WHICH HE CANNOT SATISFACTORY
ACCOUNT FOR AN OFFENCE
SPECIFIED IN SECTION 13(1)(e) OF
PREVENTION OF CORRUPTION ACT
1988, PUNISHABLE UNDER SECTION
13(2) OF THE SAID ACTin that he,
while deployed as Coy Comdr at BOP
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Srimantpur, „C‟ Coy, 145 Bn BSF on 27 Feb
2016 was found in possession of Rupees
2,54,000/- (Rupees two lakh fifty four
thousand) which is disproportionate to his
known source of income for which he could
not satisfactorily account for.
SECOND COMMITTING A CIVIL OFFENCE THAT
CHARGE BSF IS TO SAY CRIMINAL MISCONDUCT
ACT 1968 FOR HAVING BEEN A PUBLIC SERVANT
SECTION- 46 IN POSSESSION OF PECUNIARY
RESOURCES DISPROPORTIONATE TO
HIS KNOWN SOURCE OF INCOME FOR
WHICH HE CANNOT SATISFACTORY
ACCOUNT FOR AN OFFENCE
SPECIFIED IN SECTION 13(1)(e) OF
PREVENTION OF CORRUPTION ACT
1988, PUNISHABLE UNDER SECTION
13(2) OF THE SAID ACTin that he,
while deployed as Coy Comdr at BOP
Srimantpur, „C‟ Coy 145 Bn BSF and
proceeded on 08 E/Leave w.e.f. 29.01.2016 to
05.02.2016 extended by 05 days E/L with 02
days OSL upto 13.02.2016 deposited an
amount of Rs. 30,000/- (Rupees thirty
thousand) in his own Bank account No.
017401537618 at ICICI bank Panipat,
Haryana on 29.01.2016 by cash which is
disproportionate to his known source of
income for which he could not satisfactorily
account for.
THIRD CHARGE NEGLECTING TO OBEY LOCAL ORDER
BSF ACT 1968
SECTION- 22(e) in that he,
while deployed at BOP Srimantapur of
145 Bn BSF, on 27/02/2016 was found in a
possession of Rupees 2,54,000/- (Rupees two
lakh fifty four thousand) during surprise
checking by a BOO detailed by DIG, SHQ
BSF Gokulnagar in contravention to the
Frontier Headquarter Border Security Force,
Tripura signal No. O/4553 dated 24.03.2011
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which prescribes that no individual deployed
on border is allowed to retain more than Rs.
500/- at any given time in his possession.
8. The hearing of the Charges commenced on the same day itself,
wherein the petitioner pleaded „Not Guilty‟ to all the three charges.
The Commandant of the 168th Bn, BSF, ordered for the Record of
Evidence (RoE) proceedings against the petitioner on the
abovementioned three charges.
9. The respondents, in terms of the Notice/Order dated
06.07.2018, decided to try the petitioner by convening a General
Security Force Court (GSFC), which was assembled at the Bn HQ of
the 200th Bn, on the following charges:
FIRST CHARGE COMMITTING A CIVIL OFFENCE
BSF ACT 1968 THAT IS TO SAY CRIMINAL
SECTION – 46 MISCONDUCT FOR HAVING BEEN A
PUBLIC SERVANT IN POSSESSION OF
PECUNIARY RESOURCES
DISPROPORTIONATE TO HIS KNOWN
SOURCE OF INCOME FOR WHICH HE
CANNOT SATISFACTORY ACCOUNT
FOR AN OFFENCE SPECIFIED IN
SECTION 13(1)(e) OF PREVENTION OF
CORRUPTION ACT 1988, PUNISHABLE
UNDER SECTION 13(2) OF THE SAID
ACTin that he,
at BOP Srimantapur, on 27/02/2016, posted
as Coy Comdr, ‘C’ Coy, 145 Bn BSF was
found in possession of Rs.2,54,000/-
(Rupees two lakh fifty four thousand) during
surprise checking by the Board of Officer’s
detailed by the DIG, SHQ, BSF
Gokulnagar, which is disproportionate to
his known source of income for which he
could not satisfactorily account for.
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SECOND NEGLECTING TO OBEY LOCAL
CHARGE BSF ORDER
ACT 1968
SECTION - 22(e) in that he,
at BOP Srimantapur, on 27/02/2016,
posted as Coy Comdr, 'C' Coy, 145 Bn
BSF was found in possession of
Rs.2,54,000/- (Rupees two lakh fifty four
thousand), in contravention to the Frontier
Headquarter, Border Security Force,
Tripura signal No. O/4553 dated
24/03/2011, which prescribes that no
individual deployed on border is allowed
to retain more than Rs. 500/- at any given
time in his possession.
10. The GSFC, vide Orders dated 16.01.2019, while finding the
petitioner „Not Guilty‟ of the First Charge, found the petitioner
„Guilty‟ of the Second Charge, and sentenced the petitioner with the
punishment of „forfeiture of two years of service for the purpose of
promotion‟ and „severe reprimand‟. Thereafter, the matter was
referred to the Confirming Authority for Confirmation and
Promulgation.
11. The Confirming Authority, however, vide Order dated
10.09.2019, observed that the findings of the GSFC on the First
Charge was against the weight of the evidence on record and ordered
that the GSFC will re-assemble and reconsider its findings on the First
Charge.
12. The revision GSFC trial was conducted from 20.09.2019 to
23.09.2019.
13. The revision GSFC adhered to its earlier findings of ‘Not Guilty’
on the First Charge. It opined that the extra-judicial confession,Signature Not Verified
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wherein the petitioner had allegedly confessed that the money was ill-
gotten from smuggling, was not substantiated by the evidence led by
the prosecution; the prosecution failed to lead any evidence that could
substantiate that the petitioner was involved in any smuggling activity;
and that the prosecution could not substantiate beyond reasonable
doubt that the amount in question, handed over by the Petitioner to the
BOO, was beyond the known source of income making it punishable
under Section 13(1)(e) of the Prevention of Corruption Act, 1988. The
GSFC reiterated that the amount in question was found to be the legal
money of the petitioner and was not earned from smuggling activities.
14. The revision GSFC Proceedings were again forwarded to the
Confirming Authority, which vide Order dated 01.11.2019 and
Corrigendum dated 06.12.2019, once again decided not to confirm the
findings of the GSFC in respect of the First Charge but confirmed the
findings and sentence in respect of the Second Charge.
15. The petitioner submitted a Statutory Petition/Post-Confirmation
Petition dated 27.01.2020 to the respondents.
16. The respondent no.2 at the behest of the respondent no.4, issued
a Show Cause Notice dated 19.11.2020 to the petitioner, directing him
to show cause as to why his services should not be terminated in terms
of Section 10 of the BSF Act, 1968 read with Rule 20(4)(a) of the
BSF Rules, 1969, by dismissing him from service.
17. The petitioner replied to the Show Cause Notice in February,
2021.
18. The Statutory Petition/Post-Confirmation Petition dated
27.01.2020 of the petitioner was rejected by the respondent no.1 on
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14.09.2021, by stating that there was no substance in the issues raised
by the petitioner in his petition and that sufficient evidence was
available in the trial proceedings to substantiate the Charge levelled
against the petitioner.
19. Thereafter, by the impugned Order dated 06.02.2022, relying
upon the powers vested under Section 10 of the BSF Act, 1968, read
with Rule 20(4)(a) of the BSF Rules, 1969, the services of the
petitioner were terminated with immediate effect.
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
PETITIONER:
20. The learned counsel for the petitioner submits that the amount
of Rs.2,54,000/- recovered from the petitioner was partly borrowed by
him from his family friend and partly given to him by his sister and
brother-in-law for the urgent treatment and hospitalization of the
petitioner‟s father, who was required to be shifted to a hospital in
Delhi. He submits that the money was not used as the petitioner‟s
father recovered rather quickly. Since the petitioner was in a rush to
join his Unit, having overstayed his leave by two days, inadvertently,
the petitioner carried the said cash amount with him to the BOP.
21. The learned counsel for the petitioner submits that during the
search at BOP Srimantapur by the BOO, the petitioner had voluntarily
handed over the cash amount to the search party and emphasizes that
there is a difference between ‘recovered’ and ‘handed over’.
22. The learned counsel for the petitioner submits that all the
charges were duly considered by the GSFC and having failed to force
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the GFSC to change its opinion as far as the First Charge was
concerned, the respondents have arbitrarily invoked the power vested
in them under Rule 20 of the BSF Rules to terminate the service of the
petitioner.
23. He submits that for invoking the power under Rule 20 of the
Rules, it is a pre-condition that the trial of the officer by a Security
Force Court should be inexpedient or impracticable. In the present
case, not only has a full trial taken place, but the Conforming
Authority had also remanded the same to the GSFC for a revision.
Only because the opinion of the GSFC on such revision was not to the
liking of the Confirming Authority, the power vested in the
respondents under Rule 20 of the Rules could not have been invoked
as per its whims and fancies. In support of his submissions, the
learned counsel places reliance on the Judgments of this Court in S.S.
Shekhavat v. Union of India & Ors., 2008:DHC:2846-DB and Yacub
Kispotta & Ors. v. Director General BSF & Ors., 2015 SCC OnLine
Del 12437; as well as on the Judgment of the Calcutta High Court in
Sri. Amiya Ghosh v. Union of India & Ors., 2016 SCC OnLine Cal
6177.
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
RESPONDENTS:
24. On the other hand, the learned counsel for the respondents
submits that the petitioner, while being deployed on an international
border, was found in possession of Rs.2,54,000/- during a surprise
check. Possession of money of this amount was against the Standard
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Operating Procedure (SOP), which prohibited any personnel deployed
on the border to be in possession of more than Rs.800/-. He submits
that the plea of the petitioner that he was not aware of such an SOP is
incorrect and has been rightly disbelieved by the GFSC.
25. He further submits that this Court, in the exercise of its powers
under Article 226 of the Constitution of India, cannot re-appreciate the
evidence. He submits that even otherwise, there is no challenge to the
findings of the GSFC or to the order of the punishment based on the
findings of the GSFC on the Second Charge.
26. On the impugned Order, whereby the services of the petitioner
were terminated, the learned counsel for the respondents submits that
as the Confirming Authority has refused to confirm the findings of the
GSFC returned in the revision proceedings, further inquiry became
inexpedient and impracticable. The Director General/respondent no.2,
therefore, rightly issued a Show Cause Notice to the petitioner for the
proposed termination of service under Rule 20 of the BSF Rules,
1969. He submits that the reply submitted by the petitioner against the
same was duly considered, and it was only after having considered the
entire record and the evidence led before the GSFC, that the order
terminating the service of the petitioner was passed in the exercise of
power under Section 10 of the BSF Act, 1968 read with Rule 20(4)(a)
of the BSF Rules, 1969.
27. Placing reliance on the Judgment of the Supreme Court in
Union of India v. Harjeet Singh Sandhu, (2001) 5 SCC 593, and of
this Court in S.S. Shekhavat (supra), he submits that in a similar
situation, the Court has held that where the inquiry becomes
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inexpedient due to the GSFC maintaining the same finding in revision,
which is not confirmed by the Confirming Authority, recourse to the
power under Rule 20 of the BSF Rules, 1969, can be validly taken.
ANALYSIS AND FINDINGS:
28. We have considered the submissions made by the learned
counsels for the parties.
29. At the outset, we would note that as far as the Second Charge is
concerned, the punishment to the petitioner was promulgated on
01.11.2019, and the Post-Confirmation Petition of the petitioner was
rejected by the Confirming Authority vide Order dated 14.09.2021.
However, there is no challenge to these orders in the present petition.
The present petition merely challenges the Order dated 06.02.2022,
whereby the petitioner has been dismissed from service in exercise of
the power vested under Section 10 of the BSF Act, 1968, read with
Rule 20 (4)(a) of the BSF Rules, 1969. The submissions made by the
learned counsel for the petitioner in challenge to the findings on the
Second Charge, therefore, need not detain this Court.
30. As far as the impugned Order dated 06.02.2022 is concerned,
and as is noted hereinabove, the Competent Authority came to the
conclusion that once the finding of the GSFC in the revision trial had
also not been confirmed by the Confirming Authority, and there being
no provision for further remand, therefore, the trial of the officer by
the Security Force Court has become inexpedient and impractical. The
Competent Authority, therefore, in exercise of its powers under
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Section 10 of the BSF Act, read with Rule 20 (4)(a) of the BSF Rules,
ordered the dismissal of the petitioner from service.
31. Section 10 of the BSF Act reads as under:
“10. Termination of service by Central
Government.–Subject to the provisions of this
Act and the rules, the Central Government
may dismiss or remove from the service any
person subject to this Act.”
32. Rule 20 of the BSF Rules states that when the termination of the
services of an officer is proposed under Section 10 of the BSF Act on
account of misconduct, the officer shall be given an opportunity to
show cause, and after considering the report on the officer‟s
misconduct, if the Central Government or the Director General, as the
case may be, is satisfied that the trial of the officer by a Security Force
Court is “inexpedient or impractical”, but is of the opinion that further
retention of the said officer in service is undesirable, it can order the
termination of the officer‟s service, including in form of dismissal
from service.
33. Rule 20 of the BSF Rules is reproduced hereinunder:
“20. Termination of service of officers by the
Central Government on account of
misconduct.- (1) When it is proposed to
terminate the service of an officer under
Section 10 on account of misconduct, he shall
be given an opportunity to show cause in the
manner specified in sub-rule (2) against such
action:
Provided that this sub-rule shall not apply:-
(a) where the service is terminated on
the ground of conduct which has led to
his conviction by a criminal court or aSignature Not Verified
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Security Force Court; or
(b) where the Central Government is
satisfied that for reasons, to be recorded
in writing, it is not expedient or
reasonably practicable to give to the
officer an opportunity of showing cause.
(2) When after considering the reports on an
officer’s misconduct, the Central Government
or the Director General, as the case may be, is
satisfied that the trial of the Officer by a
Security Force Court is inexpedient or
impracticable, but is of the opinion, that the
further retention of the said officer in the
service is undesirable, the Director-General
shall so inform the officer together with
particulars of allegation and report of
investigation (including the statements of
witnesses, if any, recorded and copies of
documents if any, intended to be used against
him) in cases where allegations have been
investigated and he shall be called upon to
submit, in writing, his explanation and
defence:
Provided that the Director-General may with
hold disclosure of such report or portion
thereof if, in his opinion, its disclosure is not
in the interest of the security of the State.
(3) In the event of explanation of the Officer
being considered unsatisfactory by the
Director-General, or when so directed by the
Central Government, the case shall be
submitted to the Central Government with the
Officer’s defence and the recommendations of
the Director-General as to the termination of
the Officer’s service in the manner specified in
sub-rule (4).
(4) When submitting a case to the Central
Government under the provision of sub-rule
(2) or sub-rule (3), the Director-General shall
make his recommendation whether theSignature Not Verified
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Officer’s service should be terminated, and if
so, whether the officer should be,-
(a) dismissed from the service; or
(b) removed from the service; or
(c) retired from the service; or
d) called upon to resign.
(5) The Central Government, after considering
the reports and the officer’s defence, if any, or
the judgment of the Criminal Court, as the
case may be, and the recommendation of the
Director-General, may remove or dismiss the
officer with or without pension, or retire or get
his resignation from service, and on his
refusing to do so, the officer may be
compulsorily retired or removed from the
service with pension or gratuity, if any,
admissible to him.
34. Pari materia provisions are present in Section 19 of the Army
Act, 1950, read with Rule 14 of the Army Rules, 1954. Interpreting
the said provisions, the Supreme Court in Chief of Army Staff and
Ors v. Major Dharam Pal Kukrety, (1985) 2 SCC 412 held as under:
“13. It is pertinent to note that under Section
160 the confirming authority has the power to
direct a revision of the finding of a court-
martial only once. There is no power in the
confirming authority, if it does not agree with
the finding on revision, to direct a second
revision of such finding. In the absence of any
such confirmation, whether of the original
finding or of the finding on revision, by reason
of the provisions of Section 153 the finding is
not valid. Therefore, in the case of the
respondent, the finding of the general court-
martial on revision not having been confirmed
was not valid. Could he, therefore, be tried
again by another court-martial on the same
charges? Under Section 121, a person subject
to the Army Act, who has been acquitted orSignature Not Verified
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convicted of an offence by a court-martial or
by a criminal court, is not liable to be tried
again for the same offence by a court-martial.
It can well be argued that by reason of the
provisions of Section 153 under which no
finding or sentence of a general, district or
summary general court-martial is valid except
insofar as it is confirmed as provided by the
Army Act a person cannot be said to have been
acquitted or convicted by a court-martial until
the finding of “guilty” or “not guilty” in his
case has been confirmed by the confirming
authority. There is, however, no express
provision in the Army Act which empowers the
holding of a fresh court-martial when the
finding of a court-martial on revision is not
confirmed.
14. The decisions of three High Courts may be
referred to in this connection. The first
decision is that of the Allahabad High Court in
G.B. Singh v. Union of India [1973 Cri LJ 485
(All)] . That was a case under the Air Force
Act, 1950 (Act 45 of 1950). In that case, the
officer was found guilty by a general court-
martial and sentenced to be dismissed from
service. The finding and sentence were
referred to the confirming authority. The
confirming authority passed an order
reserving the same for confirmation by
superior authority and forwarded the
proceedings to the Chief of the Air Staff. The
Chief of the Air Staff passed an order not
confirming the finding or sentence awarded by
the court-martial. The finding and sentence
which were not confirmed by the Chief of Air
Staff were promulgated after the lapse of
about ten months. A fresh general court-
martial was convened to retry the officer. On
inquiry, the officer was informed that the
findings and sentence of the general court-
martial had not been confirmed as it was
found that the proceedings were not in order
and, therefore, there was no valid order
convicting or acquitting the officer. After
considering the relevant provisions of the Air
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Force Act and the Air Force Rules, 1969,
which are in pari materia with the
corresponding provisions of the Army Act and
the Army Rules, a learned Single Judge of the
Allahabad High Court held that the effect of
non-confirmation was that though the finding
and sentence passed by the court-martial
existed, they could not be put into effect unless
they had been confirmed under the provisions
of the Air Force Act, and that in such a case
Section 120 of the Air Force Act (which is in
pari materia with Section 121 of the Army Act)
barred a second trial by a court-martial. In
Major Manohar Lal v. Union of India [(1971)
1 SLR 717 (P&H)] the petitioner was tried by
a general court-martial which found him not
guilty. The General Officer Commanding-in-
Chief held the proceedings to be null and void
on the ground that one of the members of the
court-martial was of the rank of Captain and
was thus lower in rank to the petitioner and no
certificate had been recorded by the officer
convening the court-martial as required by
Rule 40(2) of the Army Rules, that an officer of
the rank of the petitioner was not available
and he, therefore, ordered a retrial. A learned
Single Judge of the Punjab and Haryana High
Court held that under the Army Act and the
Army Rules, a Captain was eligible to be made
a member of a general court-martial and the
mere fact that the convening officer did not
append the certificate that an officer of the
rank of the petitioner was not available did not
make the constitution of the general court-
martial invalid or the finding given by it to be
without jurisdiction or the proceedings of the
trial before it to be null and void. He further
held that as the petitioner had no say in the
constitution of the general court-martial and
had suffered the trial before it, the proceedings
could not have been declared null and void on
a highly technical ground. The learned Single
Judge, therefore, came to the conclusion that
the second trial of the petitioner was without
jurisdiction and the sentence imposed upon
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him in consequence of that trial was wholly
illegal. In J.C. 13018 Subedar Surat Singh v.
Chief Engineer Projects (Beacon) C/o 56
A.P.O. [AIR 1970 J&K 179 : 1970 Cri LJ
1610] a Division Bench of the Jammu and
Kashmir High Court held that though every
finding of a general court-martial, whether of
acquittal or of guilt, cannot be regarded as
valid unless it is confirmed by the competent
authority, the Legislature could not have
reasonably intended that an officer convening
a general court-martial can go on dissolving
such court-martials and reconstituting them ad
infinitum until he obtained a verdict or a
finding of his own liking. The Division Bench
further held that such a position would not
only be against public policy and the ancient
maxim “nemo debet bis vexari pro una et
eadem causa” (no man ought to be twice
vexed for one and the same cause) but would
also reduce the provisions of the Army Act to a
mockery and give an appearance of mala
fides. According to the Jammu and Kashmir
High Court, in such a case the proper course
for the confirming authority would be to refer
the case to its superior authority for
confirmation.
15. This being the position, what then is the
course open to the Central Government or the
Chief of the Army Staff when the finding of a
court-martial even on revision is perverse or
against the weight of evidence on record? The
High Court in its judgment under appeal has
also held that in such a case a fresh trial by
another court-martial is not permissible. The
crucial question, therefore, is whether the
Central Government or the Chief of the Army
Staff can have resort to Rule 14 of the Army
Rules. Though it is open to the Central
Government or the Chief of the Army Staff to
have recourse to that rule in the first instance
without directing trial by a court-martial of
the concerned officer, there is no provision in
the Army Act or in Rule 14 or any of the other
rules of the Army Rules which prohibits the
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Central Government or the Chief of the Army
Staff from resorting in such a case to Rule 14.
Can it, however, be said that in such a case a
trial by a court-martial is inexpedient or
impracticable? The Shorter Oxford English
Dictionary, Third Edition, defines the word
“inexpedient” as meaning “not expedient;
disadvantageous in the circumstances,
unadvisable, impolitic”. The same dictionary
defines “expedient” inter alia as meaning
“advantageous; fit, proper, or suitable to the
circumstances of the case”. Webster’s Third
New International Dictionary also defines the
term “expedient” inter alia as meaning
“characterized by suitability, practicality, and
efficiency in achieving a particular end: fit,
proper, or advantageous under the
circumstances”.
16, In the present case, the Chief of the
Army Staff had, on the one hand, the finding of
a general court-martial which had not been
confirmed and the Chief of the Army was of
the opinion that the further retention of the
respondent in the service was undesirable and,
on the other hand, there were the above three
High Court decisions and the point was not
concluded by a definitive pronouncement of
this Court. In such circumstances, to order a
fresh trial by a court-martial could certainly
be said to be both inexpedient and
impracticable and the only expedient and
practicable course, therefore, open to the
Chief of the Army Staff would be to take action
against the respondent under Rule 14, which
he did. The action of the Army Staff in issuing
the impugned notice, was, therefore, neither
without jurisdiction nor unwarranted in law.”
(Emphasis supplied)
35. The same question was again considered by the Supreme Court
in Harjeet Singh Sandhu (supra), wherein it was held as under:
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“35. As the term used in sub-rule (2) of Rule
14 is “impracticable” and not “not reasonably
practicable”, there is more an element of
subjectivity sought to be introduced by this
provision in the process of arriving at the
satisfaction, obviously because the rule is
dealing with the satisfaction arrived at by the
Central Government or the Chief of the Army
Staff, in the matter of disciplinary action on
account of misconduct committed by an officer
of the Army which decision would have been
arrived at by taking into consideration the
then prevailing fact situation warranting such
decision after considering the reports on the
officer’s misconduct.
36. The learned Additional Solicitor-General
cited a few examples wherein trial by Court
Martial may be rendered “impracticable”, to
wit:
(i) a misconduct amounting to an
offence having been rendered not triable
by Court Martial by expiration of the
period of limitation prescribed by
Section 122;
(ii) a Court Martial having been
dissolved after its commencement on
account of the number of officers
required by the Act to validly constitute
a Court Martial being reduced below
the minimum or any other exigency
contemplated by Section 117 occurring
and the Court Martial cannot be
convened to commence afresh on
account of bar of limitation under
Section 122 having come into play;
(iii) the Central Government, the Chief
of the Army Staff or any prescribed
officer having annulled the proceedings
of any Court Martial on the ground that
they are illegal or unjust within the
meaning of Section 165 of the Act and
by that time the bar of limitation under
Section 122 having come into play;
(iv) any finding or sentence of a Court
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been ordered to be revised by order of
the confirming authority but in spite of
such revision having not been confirmed
once again and a subsequent revision of
finding or sentence being not
contemplated by the provisions of the
Act; rather a revision once only having
been provided by Section 160;
(v) a person subject to the provisions of
the Army Act having secured a stay
order from a court of law on
commencement of Court Martial and by
the time the stay order is vacated by the
court of law the bar of limitation
provided by Section 122 coming into
play.
xxx
39. In Illustrations (iii) and (iv) also, in our
opinion, the exercise of power under Section
19 read with Rule 14 cannot be excluded. The
finding and sentence of the Court Martial are
ineffective unless confirmed by the confirming
authority. The Act does not contemplate that
the finding and sentence of a Court Martial
must necessarily be confirmed merely because
they have been returned for the second time.
Section 165 vests power in the Central
Government, the Chief of the Army Staff and
any prescribed officer, as the case may be, to
annul the proceedings of any Court Martial if
the same are found to be illegal or unjust. The
delinquent officer cannot be allowed to escape
the consequences of his misconduct solely
because court-martial proceedings have been
adjudged illegal or unjust for the second time.
The power under Section 19 read with Rule 14
shall be available to be exercised in such a
case though in an individual case the exercise
of power may be vitiated as an abuse of power.
The option to have a delinquent officer being
tried by a Court Martial having been so
exercised and finding as to guilt and sentence
having been returned for or against the
delinquent officer by the Court Martial for the
second time, on just and legal trial, ordinarily
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such finding and sentence should be
acceptable so as to be confirmed. Power to
annul the proceedings cannot be exercised
repeatedly on the sole ground that the finding
or the sentence does not meet the expectation
of the confirming authority. Refusal to confirm
is a power to be exercised, like all other
powers to take administrative decision,
reasonably and fairly and not by whim,
caprice or obstinacy. Exercising power under
Section 19 read with Rule 14 consequent upon
court-martial proceedings being annulled for
the second time because of having been found
to be illegal or unjust, the exercise would not
suffer from lack of jurisdiction though it may
be vitiated on the ground of “inexpediency”
within the meaning of Rule 14(2) or on the
ground of abuse of power or colourable
exercise of power in a given case.
xxx
42. Exercise of power under Section 19 read
with Rule 14 is open to judicial review on
well-settled parameters of administrative law
governing judicial review of administrative
action such as when the exercise of power is
shown to have been vitiated by mala fides or is
found to be based wholly on extraneous and/or
irrelevant grounds or is found to be a clear
case of colourable exercise of/or abuse of
power or what is sometimes called fraud on
power i.e. where the power is exercised for
achieving an oblique end. The truth or
correctness or the adequacy of the material
available before the authority exercising the
power cannot be revalued or weighed by the
court while exercising power of judicial
review. Even if some of the material, on which
the action is taken is found to be irrelevant, the
court would still not interfere so long as there
is some relevant material available on which
the action can be sustained. The court would
presume the validity of the exercise of power
but shall not hesitate to interfere if the
invalidity or unconstitutionality is clearly
demonstrated. If two views are possible, the
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court shall not interfere by substituting its own
satisfaction or opinion for the satisfaction or
opinion of the authority exercising the power.”
(Emphasis supplied)
36. From the above, it is apparent that in Harjeet Singh Sandhu
(supra), one of the illustrations/situations that was considered by the
Supreme Court was that if any finding or sentence of a Court Martial
requiring confirmation had been ordered to be revised by an order of
the Confirming Authority, but despite such revision was not
confirmed once again, and as a subsequent revision of the finding or
sentence was not contemplated by the provisions of the Army Act,
then whether recourse to Rule 14 of the Army Rules could be taken to
terminate the personnel. The Supreme Court answered the same in the
positive by holding that the exercise of power cannot be excluded in
such a situation. It was held that such power shall be available to be
exercised in such a case, though in an individual case, the exercise of
such power may be vitiated as an abuse of power. The Supreme Court
further held that ordinarily, the finding of the Court Martial should be
acceptable so as to be confirmed and the power conferred under
Section 19 of the Army Act, read with Rule 14 of the Army Rules,
cannot be exercised solely on the ground that the finding or sentence
awarded by the Court Martial does not meet the expectations of the
Confirming Authority, however, this would not debar the exercise of
power under Section 19 of the Army Act, read with Rule 14 of the
Army Rules to terminate the services.
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37. Following the above, this Court in S.S. Shekhavat (supra)
summarised the law/principles applicable to a similar situation as is
before us in the present petition, as under:
“18. We have already taken note of the
judgments delivered in the case of Maj.
Dharam Pal Kukrety and Harjeet Singh
Sandhu (Supra). We can now sum up the
circumstances and the manner along with the
curbs which are there in taking administrative
action upon the respondents, in cases where it
is decided not to confirm the findings of the
Court Martial even on the 2nd occasion but to
take administrative action. They can be as
follows:
a) It is not mandatory for the Confirming
Authority to confirm the findings of a Court
Martial given on the 2nd occasion after remand
of the case in exercise of the power exercised
by the said authority under Section 160 of the
Army Act.
b) Unless the findings of the Court Martial
holding an accused “guilty‟ or “not guilt‟ are
confirmed, the accused can neither be treated
as “guilty‟ nor can be treated as “not guilty‟
for the offences alleged against him despite his
trial.
c) There is no provision under the Army
Act or the rules which empowers holding of a
fresh Court Martial when the finding of a
Court Martial is not confirmed even for the
2nd time.
d) In an appropriate case, where holding
of fresh court martial is impracticable or
inexpedient; the Chief of Army Staff is
authorized to take action against the
incumbent under Section 19 of the Act r/w
Rule 14 of the Army Rules which empowers the
Chief of Army Staff even to terminate the
service of the incumbent, of course subject to
the order passed by the Central Government in
this regard.
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e) However, the existence of this power
may also include passing of a lesser sentence
other than termination of services including
award of censure in view of their policy
decision (supra) in cases covered by para 5
and 6 thereof.
f) The term used in Sub-rule 2 of Rule 14
which says that a fresh Court Martial is
impracticable or not reasonably practicable
has an element of subjectivity in arriving at the
satisfaction by the Chief of Army Staff/ GOC in
C and/or the Central Government as the case
may be, regarding the misconduct committed
by an accused and needs to be reached after
taking into consideration the then prevailing
facts and other circumstances as also the
reports of court martial and the misconduct of
the accused.
g) As held in Sandhu‟s case, situation may
arise where it may be impracticable or
inexpedient to have a fresh Court Martial
within the time prescribed under Section 122
of the Army Act, yet there may be cases where
the power vested in the Army Authorities
under Section 19 read with Rule 14 cannot be
excluded even if the report of the GCM is not
confirmed for the 2nd time.
h) Exercise of such power may be vitiated
as an abuse of power in a given case. Such
power cannot be exercised only because the
findings or the sentence does not meet the
expectations of the Confirming Authority. The
power available to the Authorities under
Section 19 read with Rule 14 stands vitiated if
it is shown to be a colorable exercise of power
or an abuse of power which at times has been
described in administrative law as fraud of
power, or is only an attempt to enforce will of
superior authorities without justification.
i) A misconduct committed number of
years ago, for which action was not taken
promptly within the prescribed period of
limitation may also be a factor to vitiate such
proceedings. However that would all depend
on the facts and circumstances of the case andSignature Not Verified
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no hard and fast rules can be laid down in this
behalf.
j) Exercise of such power is always subject
to judicial review in accordance with the well
settled principles of law governing review of
Administrative action. As and when it is shown
that the exercise of power is vitiated by mala
fide and found to be based upon irrelevant
consideration, or is found to be a clear case of
externs or what is sometimes called fraud of
power it may be set aside.
k) Normally the discretions so exercised
must be presumed to have been rightly
exercised and is not to be readily interfered
with, even if two views are possible.
l) In terms of policy letter No.
32908/AG/DV-I power of awarding of censure
is very much available to the Chief of Army
Staff/GCC in appropriate case where it is not
practicable or expedient to hold a fresh Court
Martial; provided the offence alleged to have
been committed are offences involving moral
turpitude, fraud or dishonesty and must be
tried by Court Martial or by a Civil Court.
m) Award of Censure has also been
described as Custom of Service even though
such award is not part of statute but the award
of the same would also be guided by the Policy
framed in this regard and is subject to para 5
and 6 of the same.”
38. In the said case, this Court having emphasized that the exercise
of power under Section 19 of the Army Act, read with Rule 14 of the
Army Rules, only because the findings or the sentence does not meet
the expectations of the Confirming Authority, would be an abuse of
the power, in the facts of that case, found that there were sufficient
reasons for the Competent Authority to have exercised its powers
under Section 19 of the Army Act read with Rule 14 of the Army
Rules.
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39. In Yacub Kispotta & Ors. (supra), this Court was, in fact,
considering a case under the BSF Act and the Rules. The Court, taking
note of the principles laid down by the Supreme Court, inter alia, in
Harjeet Singh Sandhu (supra), found that in the facts of that case, the
opinion reached by the Competent Authority holding the inquiry into
the allegations against the delinquent personnel was not reasonably
practicable, but was flawed. The Court was of the opinion that the
resort to Rule 20 had been taken since there was no incriminating
material against the personnel and perhaps because of the fear that the
role of more senior officials would have come under scrutiny, given
the extent of unpreparedness, possibly lack of intelligence, and the
shortfall in ammunitions issued to the section.
40. In Sri. Amiya Ghosh (supra), the High Court of Calcutta, again
following the principles of law laid down in Major Dharam Pal
Kukrety (supra) and Harjeet Singh Sandhu (supra), found that the
Confirming Authority did not give reasons for disagreeing with the
findings of the GSFC and even the Show Cause Notice that was issued
to the petitioner therein did not intelligibly and sufficiently define the
material against the petitioner therein. The Court also considered the
allegations against the petitioner therein and found the order passed by
the Confirming Authority to not be worthy of acceptance.
41. From the above judgments, therefore, it is apparent that where
the Conforming Authority does not agree with the findings or sentence
awarded by the GSFC, even on revision, it may decide not to confirm
the same. In such an event, and in a given set of facts, the Competent
Authority may exercise the power vested in it under Section 19 of the
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Army Act read with Rule 14 of the Army Rules (herein Section 10 of
the BSF Act, read with Rule 20(4)(a) of the BSF Rules) to still dismiss
the Officer. In such an event, the trial of the officer by a Security
Force Court would be inexpedient or impracticable. Though the
exercise of this power will not be questioned on lack of jurisdiction,
the same will, however, will be tested on the general principles of
administrative law.
42. Applying the above principles of law to the facts of the present
case, it is first to be noted that the allegation against the petitioner is
that he was found in possession of Rs.2,54,000/- while being at the
border outpost (BOP). It is the case of the respondents that the said
money was ill-gotten by giving patronage to smuggling activities. On
the other hand, it is the case of the petitioner that the petitioner had
taken the said money from one of his family friends (Sh. Madan Lal
Grover-DW-2), and his brother-in-law (Sh. Sudhir Sandhu-DW-1)
for the treatment of his father, who was admitted in a hospital in
Delhi. The petitioner further claimed that as his father recovered and
the said money was not required to be used, by mistake he carried it
with himself to his place of posting because he was in a hurry to rejoin
as he had already exceeded his period of leave by two days.
43. The GSFC, in its findings dated 16.01.2019, dismissed the First
Charge against the petitioner of being in possession of the above
amount, which was disproportionate to his known source of income,
by primarily finding fault in the search and seizure procedure followed
by the BOO. The GSFC also found favour in the petitioner‟s case that
the money was borrowed by him from DW-1 and DW-2.
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44. The Confirming Authority, however, vide Order dated
10.09.2019, remitted the findings to the GSFC for a revision,
observing as under:
“3. While in no way intending to interfere
with the discretion of the Court to arrive at
any Finding on the Charge preferred against
the Accused, I, as Confirming Officer wish the
Court to take into account the following
aspects while reconsidering its earlier Finding
of ‘Not Guilty’ on the First Charge in respect
of the Accused named above:
(a) The First Charge against the Accused is
U/S 46 of the BSF Act, 1968 for committing a
Civil Offence that is to say Criminal
Misconduct for being a public servant found in
possession of pecuniary resources
disproportionate to his known sources of
income for which he cannot satisfactorily
account for an offence specified in Sec 13 (1)
(e) of the Prevention of Corruption Act,1988
punishable under Section 13 (2) of the said
Act, as mentioned in the Charge Sheet
(Annexure-‘B-2’).
b) Notwithstanding the procedural
irregularities indicated by the defence in
conduct of search, the evidence available on
record shows that the Accused was found to be
in possession of Rs.2,54,000/-(Two Lac and
Fifty Four Thousand only) when a Surprise
Check was carried out by the Board Of
Officers at BOP Srimantapur on 27.02.2016.
The Accused also admitted that said amount
was found in his possession when checked by
BOO. It is further in evidence that the Accused
during the search confessed before PO of
BOO, Sh. Ganesh Kumar, 2IC (Now Comdt)
(PW-15) that the said amount was received
from the smugglers and he also paid
Rs.1,46,000/- and Rs. 90,000/- on two
occasions to Unit 2IC, Sh.Kuldeep Singh. The
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accused has not rebutted the same during
cross-examination of PW-15 & PW-9. The
Court has totally discarded evidence led by the
Prosecution and believed the version of the
Accused that he had borrowed the said amount
from his family friend Sh.Madan Lal Grover
(DW-2) when his father was admitted in
hospital at Panipat (Haryana) and, by mistake,
he brought that amount with him on expiry of
leave and kept in his suitcase at BOP
Srimantapur.
c) The Court further believed that when
surprise check was carried out, the Accused
voluntarily disclosed possession of said
amount to PW-15. However, as per the
statement of Sh.Vikas Singh, DC (PW-7),
Sh.Narender Pal Singh, DC (PW-9) and
Sh.Ganesh Kumar, Comdt (PW-15), the
Accused disclosed having possession of said
amount only after the search in respect of
other BOP personnel had been completed and
when search of his room was about to be
conducted and it became inevitable to hide
such facts. As such, the Court has not
appropriately appreciated the evidence
available on record.
d) The Court believed the version of the
Accused that he had borrowed said amount
from his family friend, Sh.Madan Lal Grover
(DW-2) when his father was admitted in
hospital at Panipat (Haryana). However, in
Exhibit-‘DD4’ prepared immediately after the
search, it was written by the Accused himself
stating that “mere paas se 2,54,000 Rs mile”
and further in Exhibit-‘GG’, prepared by the
Accused on reaching Sector HQ, Gokul Nagar
mentioning that “money recovered from me is
my own money which I have brought from
my home”. The fact that the amount was
borrowed from anyone for the treatment of his
father does not find mention in both Exhibit-
‘DD4’ & Exhibit-‘GG’ which casts doubt on
the version of the defence.
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e) The Court believed the version of the
Accused that the said amount was brought by
him from his home and, in his unsworn
statement, the accused stated that he informed
PW-15 i.e. Sh.Ganesh Kumar,2IC (now
Comdt) that the seized amount was borrowed
one whereas neither any prosecution witness
heard such statement being made by him nor
he specified as to who all were present when
he made such statement to PW-15.
Surprisingly, the Court did not appreciate that
keeping with himself such huge amount in cash
till his next leave which was not certain
considering the commitments of the Force and
not sending said amount through Bank or
depositing the same in any of his three Bank
Accounts appear unconvincing being not a
natural course of action expected from the
Accused particularly when he was Coy Comdr
of a Coy deployed in very sensitive and
smuggling prone area and SOP prohibited
possession of cash amount beyond certain
limit. As such the Court has erred in
appreciating these issues properly.
f) It further appear unconvincing that the
Accused borrowed Rs.2,00,000/- in cash from
DW-2 for treatment of his father when he had
more than said amount available in his Bank
Accounts and he had ample opportunity to
withdraw the same from his Bank Account
during his leave. Further, it is also
unconvincing that the Accused borrowed
money from DW-2 for treatment of his father
on 29.01.2016, but he did not care to return
said amount to DW-2, despite the fact that he
had sufficient money in his Bank Account and
moreover, the said amount was no longer
required for treatment of his father as his
condition had improved. Furthermore, as per
the statement of Sh.Madan Lal Grover (DW-
2), when he called the Accused on 15th march
2016 and told him that his Cheque was lying
with him and that whether he should send it
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back to his home to which the accused inter
alia replied that he should encash the Cheque,
However, this testimony of DW-2 appears an
after thought to cover up the source of
unaccounted amount recovered from the
possession of the Accused, In normal course, if
the amount is a borrowed one, it would not be
kept with him by the Accused till his next leave
and would be paid back at once.
g) The Court believed the version of the
Accused that the amount in question was
borrowed by Accused from his family friend,
Sh.Madan Lal Grover (DW-2) due to critical
health condition of his father on 29/01/2016
when his father was admitted in hospital at
Panipat (Haryana). However, no medical
document has been produced by the Accused
to the effect that on 29.01.2016, the health
condition of his father was so serious
requiring his shifting to Delhi for treatment.
h) Further, on 29/01/2016, the Accused
stated to have borrowed Rs.2 Lakhs in cash
from his family friend Sh.Madan Lal Grover
(DW-2) and later, on 07.02.2016, his brother-
in-law Sh.Sudhir Sandhu (DW-1) also gave
him Rs.55,000/- in the hospital saying that the
Accused may require the said amount.
Surprisingly, the Accused never informed DW-
1 that he had already borrowed RS.2 lakhs
from DW-2 and the condition of his father had
also improved and he was not required to be
shifted to Delhi as advised by the treating
doctors and thus, the money was not required,
but the Accused quietly accepted the money
from DW-1 which shows his malafide to cover
up the matter by adducing such evidence.
Besides that as per the evidence of Sh.Sudhir
Sandhu (DW-1), he daily visited his father-in-
law in Hospital while going and coming back
from his Office and he had also stayed during
night in Hospital. However, it is surprising
that the accused has not asked any monetary
help from the DW-1, who is his close relative
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instead he borrowed money from DW-2, his
family friend. Further, the Accused never
disclosed the facts regarding borrowing of
said amount from DW-1 & DW-2 to the
authorities though mandated by Conduct
Rules. The Court has not considered these
evidence on record appropriately
i) The Court further believed the statement
of CT Sashi Kant Yadav (DW-3) who stated
that when he went to the room of the Accused
at the BOP for obtaining his signature on
Handing/Taking Over vouchers, he saw few
bundles of Currency Notes lying on his bed.
Surprisingly, the Accused never examined
DW-3 at any stage of Disciplinary
Proceedings i.e. COI & ROE prior to his
deposition before the GSFC and no
satisfactory explanation for said omission has
been offered by him before the Court.
j) The Court also believed the statement of
SI (Now Insp) Alok Kumar (DW-4) who stated
that on 13th Feb’ 2016 around 1600 hrs when
he met the Accused outside the office of
Adjutant at Bn HQ and enquired about the
health of his father, the Accused received a
call on his Mobile phone and from his Tele-
Conversation, DW-4 could make out that the
Accused was talking with his family and
appeared to be jittery. DW-4 overheard the
Accused saying “mere pass yeh galti se aagaya
hai jab hum aayeinge to letehuye aayeinge”.
Further when the Accused had hung up the
call and on being asked by DW-4, he told DW-
4 that “dhai lakh rupaye, cash thi, wo galti se
mere sath aagaya, usike bare me pooch rahi
thi”. DW-4 further admitted that he had
deposed above facts for the first time before
the Court as he was asked by the Accused not
to disclose such facts before anybody as it may
be required subsequently. The explanation for
not disclosing above material facts at any
stage of Disciplinary Proceeding prior to Trial
of the Accused by GSFC does not appear
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convincing in the overall facts and
circumstance of the case. The Accused was
afforded full opportunity to defend him at all
stages of Disc Proceedings including making a
Statement, Cross Examination of witnesses
and calling of witnesses in his defence if he so
desired. However, he never led any such
evidence to rebut the allegations of serious
magnitude involving „Moral Turpitude‟ raised
against him. Had he done so, there was
possibility of dismissal of charge after Record
of Evidence (ROE) itself under Rule 51-A of
SSF Rules, 1969 whereas non- utilization of
such opportunity by the accused remains
unexplained raising doubt in his version of
incident.
k) As per the statement of HC/Min Bibil V
D (PW-16), the accused submitted a Bill for
re-imbursement of expenses incurred in
treatment of his father as per which the period
of treatment was mentioned as 23.01.2016 to
10.02.2016 and the total amount claimed by
the accused was Rs.2,50,350/-. Further, in his
unsworn statement before the Court, the
Accused admitted that his father was
discharged from Hospital on 10.02.2016.
Further, as per the statement of DW-1, he had
not made any payment of the Hospital Bills
from the date of admission till discharge and
he did not know who paid the Hospital Bills
before discharge of his father-in-law, As such,
the Court has failed to appreciate that during
the relevant time, an amount of Rs.2,50,350/-
had been paid for the Medical Expenses of
father of the Accused, who is dependent on the
Accused obviously on his discharge from
Hospital whereas the Accused has not
produced any evidence to prove the source of
said amount.
l) The evidence further shows
inconsistencies in defence version of story
about the source of amount recovered from the
possession of accused. The Court has believed
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the Prosecution version that the salary of
accused was his only known Source of Income.
Further, evidence shows that during the
relevant period, the same was being
transferred to his MOD balance and he has
not made any substantial withdrawals from
any of his three Bank Accounts during the
relevant period so as to meet the expense for
treatment of his father. Further, the Accused
was not having any other receipt of Movable
or Immovable Property during the relevant
period, as reflected in Movable/Immovable
property Returns filed by him during relevant
period. Further, his parents are shown to have
been dependent upon him and evidence shows
that he has claimed Re-imbursement of
Rs.2,50,350/-(Rupees Two Lakh Fifty
Thousand Three Hundred and Fifty only)
stated to have been spent on the treatment of
his father. However, no evidence has been led
by the accused as to how the Medical
Expenses on treatment of his father were met
when, on the one hand, he led evidence in his
defence that the amount of Rs.2,55,000/- was
taken by him from DW-1 & DW-2 for
treatment of his father and, on the other hand,
evidence shows that he claimed Medical Re-
imbursement of Rs.2,50,350/- (Rupees Two
Lakh Fifty Thousand Three Hundred and Fifty
only) spent on the treatment of his father. The
Court has not considered the above
inconsistencies in the version of the defence
while deliberating on Finding on this charge.
m) That the Court has not appreciated that,
Sh.Madan Lal Grover (DW-2) could not
satisfactorily explain the procedure of
maintaining Accounts for such transactions
though the Business Firm which is a joint Firm
in the name of his brothers and he incurred
liability for such transactions of personal
nature to other partners which has not been
satisfactorily explained by him casting doubt
in defence story.”
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45. The GSFC re-considered the matter, however, reiterated its
findings of „Not Guilty‟ on the First Charge. It again believed the case
of the petitioner that Rs.2,00,000/- had been taken by him from
Mr.Madan Lal Grover (DW-2), a family friend of the petitioner, while
Rs. 50,000/- had been taken by him from his brother-in-law (DW-1).
The GSFC further held that the petitioner had himself handed over the
above amount to the BOO, and the assertion of the BOO that the same
had been recovered was not believed. The GSFC, however, did not
take an adverse or favourable view as to who paid the bills for the
treatment of the petitioner‟s father.
46. The findings of the GSFC on revision were not confirmed by
the Confirming Authority, by way of a cryptic order, which is
reproduced hereinunder:
“I do not confirm the finding of the Court on
the first Charge being against the weight of the
evidence. However, I confirm the Finding and
Sentence of the Court in respect of Second
Charge against the accused.”
47. Though the above is a cryptic order, the Show Cause Notice
that was issued to the petitioner asking him to show cause as to why
his services be not terminated, gave detailed reasons for not
confirming the findings of the GSFC, as under:
“5. Whereas, the DG BSF having examined
the report of Confirming Authority as well as
the GSFC trial proceedings, particularly the
evidence adduced before the GSFC on First
Charge against you, found that though there is
sufficient evidence on record against you on
the First Charge, but the Court found you „NotSignature Not Verified
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Guilty‟ of the said Charge against the weight
of the evidence on record. As per the evidence
on record, on 27th Feb 2016, a Board of
Officers (BOO) detailed by the DIG, SHQ BSF
Gokulnagar, carried out a surprise checking
of BSF personnel deployed at BOP
Srimantapur. Before starting the search of all
the troops of said BOP, the troops were made
to Fall In and Sh.Ganesh Kumar, the then
2IC/OPS Sector BSF Gokulnagar (PW-15), the
PO of BOO, asked the troops to declare if
anyone had any amount in his possession, but,
none of them, including you declared anything.
Though, being the Coy Comdr, you ought to
have come up at your own to disclose the huge
amount kept by you in your possession, but
you remained silent during the ongoing search
of all Coy Personnel despite being asked by
the members of BOO and disclosed of having
in possession of money only when the BOO
was about to search your belongings.
Accordingly, the BOO carried out the search
of your belongings and recovered a sum of
Rs.2,54,000 (Two Lakh Fifty Four Thousand
Rupees only) from your possession. Further, it
is seen that your salary was your only known
source of income during the relevant period
and the Annual Returns filed by you also
revealed that you were not having any other
income during the relevant period from any
immovable property. Further, you had three
different bank accounts, that is salary PMSP
account with SBI (Exhibit-Y3) and other two
savings accounts with PNB (Exhibit- X3) &
ICICI (Exhibit-AA2 & AA3) and the bank
statements of these accounts show that you
have not made any withdrawal of money from
your PNB and ICICI bank accounts. Further,
total withdrawal during the period from Jul’
2015 to 27th Feb’ 2016 from your SBI
account, comes around Rs.60,000/-(Rupees
Sixty Thousand only) whereas, during the
period between 12th Dec’ 2015 to 27th Feb’
2016 i.e. the period when you were deployed
at BOP Srimantapur, cash withdrawal of justSignature Not Verified
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Rs.12,000/- (Rupees Twelve Thousand only)
had been made by you from your SBI Salary
Account (Exhibit-Y3). Further as per Exhibit
AA2′; in your ICICI Bank Account, there is
only one transaction of withdrawal made 011
26/10/2015 for an amount Rs.280/-only.
Though you stated that you received
agricultural Income during the relevant
period, but no documentary evidence was
produced by you in support of your claim.
Evidence on record reveals that your parents
were also dependent upon you. Having
received no such amount from any of the
known sources of your income, the amount of
Rs.2.54 Lac recovered· from your possession
was found to be disproportionate to your
known sources of income. However, in order
to justify the disproportionate amount
recovered from your possession by BOO, you
put forth your defence through your witnesses
that you had borrowed Rupees Two lakhs in
cash from your family friend, Sh.Madan Lal
Grover (DW-2) and Rs.55,000/- (Fifty Five
Thousand rupees only) from your brother-in-
law, Sh.Sudhir Sandhu (DW-l) for medical
treatment of your father. However, the
statements of these witnesses do not inspire
confidence as DW-2 stated to have made the
entries of having given Rs. Two Lakh to
accused in Day Book (Exhibit-RR, RR1 &
RR2) and in Ledger (Exhibit-SS, SS1), which
do not bear the name of the firm of DW-2 or
himself and further DW-2 has business of iron
merchant and the entries of lending/borrowing
could not have been validly made in his
business documents. Moreover, DW-2 could
not produce the Audit Report or ITRs of his
Firm DW-2 also intentionally concealed some
documents which he had produced during his
statement at the Record of Evidence (ROE).
Further, the encashment of cheque of Rs. Two
lakh by DW-2 on 16th March‟ 2016, which he
stated to have taken from you in lieu of cash,
appears to be an afterthought as the recovery
of huge amount had by then been effected on
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27th Feb’ 2016 from you. It is also seen that
immediately after recovery of amount from
your possession, you had given it in writing
(Exhibit-DD4) that, ‘mere paas se 2,54,000 Rs
mile’ and making no mention therein that the
said amount was brought by you from your
home. However, later after reaching SHQ BSF
Gokulnagar, you improved upon the same,
stating that “the money recovered from you
was your own money which you had brought
from your home” (Exhibit- ‘GG’), which is
afterthought and moreover, even therein you
made no mention of this amount being a
borrowed amount from DW-l & DW-2. You
also examined CT/GD Shashi Kant Yadav
(DW-3) & Inspr Alok Kumar Ravikar (DW-4)
to impress upon the Court that they were in
knowledge of the fact that you had brought Rs.
2.50 lakh from home. DW-3 stated that he had
seen the bundles of cash on your bed at BOP
Srimantapur on 14/02/2016. But both these
witnesses are found to be unreliable having
made improvements in their statements on
material facts against their statements in
SCOI/ROE. DW-3 admitted that he did not
disclose the above facts during investigation at
your directions to conceal the same which
appears to be flimsy. The statement of DW-4 is
marred with number of inconsistencies as
despite being aware of the impending case
against you, he did not disclose the so called
facts before any other staff officer of his
Battalion but stated to have made a mention of
sharing the above said facts only with
Sh.Satyapal Singh, DC (PW-14) who has
denied the same. Furthermore, the Medical
Re-Imbursement Bills to the tune of
Rs.2,50,350/- were claimed by you for the
medical expenses incurred upon the treatment
of your father Sh.Raghubir Singh from
23/01/2016 to 10/02/2016 who was dependent
upon you. You projected that you borrowed
Rs.2,55,000/- from DW-1 & DW-2 for the
treatment of your father but you did not submit
any evidence as to how the medical expenses
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on the treatment of your father were incurred
when you brought the amount borrowed for
this purpose with you at BOP Srimantapur on
arrival from Leave and no amount has been
shown to have been withdrawn by you from
your bank accounts. Besides this, Sh.Ganesh
Kumar (PW-15) has deposed that you made
extra-judicial confession before him
immediately after the recovery of Rs.2,54,000/-
(Rupees Two Lakh Fifty Four Thousand only)
from your possession at BOP Srimantapur
wherein you had voluntarily confessed your
guilt before him mentioning that .the amount
recovered was ill-gotten money obtained from
smuggling. Further, your confession regarding
the illegal source of money to PW-15 was also
corroborated by Sh.Narendra Pal Singh (PW-
9). PW-15 & PW-9 are neutral persons,
having no previous enmity towards you and
their presence at the place of incident was
merely co-incidental due to their detailment in
BOO by DIG, SHQ, Gokulnagar.”
48. The petitioner submitted a detailed representation against the
Show Cause Notice, which has been rejected by the Competent
Authority, resulting in the passing of the dismissal order. The
Competent Authority has disbelieved the assertion of the petitioner
that the amount recovered from him had been taken by him from DW-
1 and DW-2. It has observed that the petitioner had not disclosed
possession of such large amount of cash with him to any Competent
Authority prior to the surprise check by the BOO. In the surprise
check, cash amounts were recovered not only from the petitioner but
also from other personnel as well. The BOO had been ordered
specifically because there was an information of the personnel at
Srimantapur, giving patronage to smuggling activity by accepting
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bribes. The Competent Authority also found that, though the father of
the petitioner had been admitted to a hospital, and that the petitioner
had made a claim for reimbursement of the amount spent on his
father‟s treatment, however, the petitioner did not produce any
evidence as to how the medical expenses on the treatment of his father
were met by him. The Competent Authority also observed that the
petitioner confessed to the possession of the above amount only when
he found that there was no escape from the recovery of the same.
49. As is noted hereinabove, this Court, in exercise of its powers of
judicial review cannot act as an Appellate Authority to the view
confirmed by the Competent Authority; it is only where the exercise
of power is vitiated by mala fide, or is found to be based upon
irrelevant consideration, or is found to be a clear case of extraneous
circumstances being taken into account, or is otherwise found to be
arbitrary, or as colourable exercise of power, that the Court may
interfere. In the present case, the petitioner has been unable to meet
the said test.
50. In view of the above, we find no merit in the present petition.
The same is accordingly, dismissed.
NAVIN CHAWLA, J
SHALINDER KAUR, J
JANUARY 15, 2025/Arya/sg/SJ
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