COURT NO.2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) 1165/2002 Dinesh Singh …….Petitioner Versus Union of India through Defence Secretary & Others …….Respondents Sri V.K. Bist, Sr. Advocate for the petitioner. Smt. Anjali Bhargava, learned Standing Counsel Union of India. 3rd April, 2008 Hon’ble P.C. Verma, J. Petitioner was a Constable in the Indo-Tibetan Border Police Force (for short, ITBP), who was chargesheeted on 14.3.2002. Following charges were framed against the petitioner: (i) On 21.8.2001 at about 1900 hours found absent from Unit Campus without intimation and permission of competent authority. (ii) On 21.8.2001 at about 2200 hours consumed liquor and found at Ghamshot in drunken state and brought to Campus by duty S.O. (iii) On 9.3.2002 at about 1600 hours absented himself from Campus, Bonda (Sarahan) without leave or permission of competent authority. (iv) On 9.3.2002 at about 1700 hours found lying at Gharat area, Bonda (Sarahan) in a state of intoxication. 2. Chargesheet was served on the petitioner and only 24 hours time was given to furnish the reply as is evident from para 4 of the order dated 14.3.2002 contained as Annexure No. 2 to the writ petition. By the order dated 16.3.2002 contained as Annexure No. 3 to the writ petition, the petitioner was removed from service. The petitioner was serving in the ITBP. The services of the petitioner were governed by the rules framed under The Indo-Tibetan Border Police Force Rules, 1994. Chapter IV of the said rules deals with the termination of service. Chapter IV contains Rule 17 and 18, which are relevant for the purpose of the present case. Both the rules are reproduced as under: “17. Termination of Service.— Authorities specified in the headings of columns 3 to 6 of the Table given below shall be competent to dismiss, remove, discharge, retire or release a member of the Force specified in the columns, on the grounds stated in the corresponding entries in column 2, in accordance with the procedure laid down in this Chapter. Any power conferred by this rule or any provision of this Chapter on any of the aforesaid authorities may also be exercised by any other authority superior to it: Provided that the provisions of this Chapter shall not apply to the persons on deputation with the Force. TABLE ________________________________________________________________________ Sl. Grounds on which Central Inspector DIG/ Commandant No. service can be Government General ADIG terminated 1 2 3 4 5 6 (i) Misconduct Officers Sub-Major & Sub-Inspector Enrolled Subedar/Inspector Person (ii) Unsuitability Officers Sub-Major & Sub-Inspector Enrolled Subedar/Inspector Person (iii) Unsatisfactory Officers Sub-Major & Sub-Inspector Enrolled Progress in Subedar/Inspector Person Training. (iv) Furnishing Officers Sub-Major & Sub-Inspector Enrolled false/wrong Subedar/Inspector Person information at the time of appointment. (v) Physical Officers Sub-Major & Sub-Inspector Enrolled unfitness Subedar/Inspector Person (vi) On own Officers Sub-Major & Sub-Inspector Enrolled request Subedar/Inspector Person 18. 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 (1) not apply__ (a)where the service is terminated on the ground of conduct which has led to his conviction by a Criminal Court or a 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 is satisfied that the trial of the officer by a Force Court is in expedient 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 allegations and report of investigation (including the statement of witnesses, if any, recorded and copies of document, 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 withhold 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 the 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 recommendation 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 provisions of sub- rule (2) or sub-rule (3), the Director General shall make his recommendation whether the 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 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.” 3. In the present case, chargesheet was sent to the petitioner. It is not clear either from the counter affidavit or from the chargesheet filed by the petitioner as to whether the statement of witnesses recorded, if any, and the copies of the document, if any, intended to be used against the petitioner was served on the petitioner or not. Definitely, the charges show that these charges are based on some statement and based on some documents. It is further provided in sub-rule (2) of Rule 18 that the delinquent shall be called upon to submit his explanation and defence in writing. For explanation, time granted was only 24 hours, which shows that sufficient time has not been granted to the charged officer for furnishing his explanation and to lead his defence, rather grant of 24 hours time itself shows the intention of the officer to recommend to the Central Government for a major punishment. Immediately after 24 ours, on 16.3.2002 itself the order of removal was passed with a pre-determined mind. The procedure adopted was totally against the provisions contained under Rule 18 as quoted above. The appellate authority also did not consider this aspect of the matter. Therefore, the impugned order of removal cannot be sustained. 4. For the reasons recorded above, the impugned order of termination is set aside. Writ petition is allowed. However, the disciplinary authority may proceed in accordance with law and pass appropriate order. No order as to costs. (P.C. Verma, J.) Prabodh