Ashok Kumar v. DG. BSF Case doesn’t create a rule for leniency to intoxicated BSF personnel with mental tension: Delhi High Court

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 1st December 2021 W.P.(C) 13572 2021 GUDDU KUMAR Petitioner UNION OF INDIA &ORS. Through Ms. Saahila Lamba Advocate Respondents Through Mr. V.N. Goyal Advocate HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA J.This petition has been filed by the petitioner challenging the order dated 29.12.2020 passed by the Commandant 148 BN Border Security Force directing the dismissal of the petitioner from service the order dated 13.04.2021 passed by the respondent no. 3 dismissing the representation of the petitioner against the above order of removal from service and the order dated 09.06.2021 passed by the respondent no. 2 wherein the representation of the petitioner for setting aside the impugned order dated 29.12.2021 was again dismissed on the ground that under Section 117 of the Border Security Force Act 1968 read with Rule 167(2) of the Border Security WP(C) 13572 2021 Force Rules 1969 a person aggrieved by any order passed by the Summary Security Force Court hereinafter referred to as ‘SSFC’) can present only one petition to any of the officers mentioned in Section 117 of the Act and since the petitioner had already availed said opportunity by submitting a statutory petition to the respondent no. 3 which was duly considered there is no provision to entertain another representation in the same It is the case of the petitioner that a hearing under Rules 45 45A 45B of the Rules was conducted against the petitioner on 18.12.2021 on six charges viz.on 16.12.2020 at about 1845 hours while on duty the petitioner was found in a state of intoxication on 16.12.2020 at about 1845 hours while on duty the petitioner misbehaved and abused Insp Offg Coy Commander Sunil Yadav on 16.12.2020 at about 1845 hours while on duty the petitioner used threatening language against Const GD P M Rao on 16.12.2020 at about 1845 hours while on duty the petitioner was found in unauthorized possession of a pouch of 180 ml Officer Choice whiskey on 16.12.2020 at about 1845 hours while on duty the petitioner was found in possession of mobile phone which is against the instructions andon 16.12.2020 at about 2130 hours while on duty the petitioner refused to sit in the ambulance for proceeding for his medical test despite order by SI Ganpat Lal to do so. The charges so framed were corroborated by six witnesses and vide order dated WP(C) 13572 2021 18.12.2020 a Record of Evidence was directed to be prepared against the petitioner. On 29.12.2020 after the preparation of the Record of Evidence the SSFC was conducted against the petitioner wherein he was found guilty on all six of the aforementioned charges. The petitioner is alleged to have admitted to being guilty of the six charges hence the order of dismissal from service was passed. The learned counsel for the petitioner submits that the petitioner was forced to enter plea of guilty on the six charges against him and on the basis of this forced plea of guilt entered by the petitioner the SSFC held the petitioner to be guilty of the charges framed against him without recording any evidence whatsoever and awarded the sentence of dismissal from service to the petitioner. She further submits that the petitioner did put on record his version of the events by admitting to consuming liquor on 16.12.2020 as he claimed to be under duress due to his father’s hospitalization and was not aware of what happened. The learned counsel for the petitioner contends that this admission is only with respect to the first charge framed against the petitioner that is intoxication and not qua the remaining five charges. Placing reliance on the judgment dated 11.07.2011 of this court in Ashok Kumar v. DG. BSF & Ors.2145 1998) she submits that the petitioner was suffering from mental tension and therefore deserved leniency. She submits that the punishment of dismissal from service is therefore disproportionate. WP(C) 13572 2021 5. We have considered the submissions made by the learned counsel for the petitioner and find no merit in the same. The charges found against the petitioner to be proved is that while being deputed on duty on 16.12.2020 the petitioner was found to be under the influence of alcohol and used threatening and insubordinate language to his superior officers. The above charges framed against the petitioner are extremely grave. The same clearly reflect gross indiscipline on part of the petitioner. The petitioner is a member of a disciplined force and was found to be indulging in these activities while being on duty. Moreover we find no merit in the argument by the learned counsel of the petitioner that the admission of guilt was forced as the petitioner has appended his signature on the proceeding sheet. The proceeding sheet also records that the petitioner was warned of the repercussion of such admission. The said proceedings are dated 29.12.2020 and surely the petitioner understood the same. In Union of India & Ors. vs. Diler Singh 13 SCC 71 the Supreme Court has held that unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks conscience of the Court there is no scope for interference. When a member of the disciplined force deviates to such an extent from the discipline it is difficult to hold that punishment of dismissal is disproportionate or shocking to the judicial conscience. WP(C) 13572 2021 In Union of India & Ors. vs. Lt. Col. Kuldeep 10 SCC 449 the Supreme Court reiterated that though the Tribunal Court is competent and empowered to interfere with the punishment awarded by the appropriate authority in any departmental action on the ground of the same being excessive or disproportionate to the misconduct proved against the delinquent officer however exercise of such power is circumscribed and can be invoked only in exceptional and rare cases when the punishment awarded by the Disciplinary Authority shocks the conscience of the Tribunal Court or is so unreasonable that no reasonable person could have taken such an action. The Tribunal Court cannot act as a court of appeal and substitute its own view and findings by replacing the subjective satisfaction arrived at by the competent authority in the backdrop of the evidence on record. In the present case as noted hereinabove the charges against the petitioner are of grave nature and we do not find the penalty imposed on the petitioner to be disproportionate. 10. The observation of this court in Ashok Kumar cannot be considered as having laid down as a rule that in every case where an officer of Armed Force is found to be intoxicated on duty and indulging in unruly behavior he would deserve leniency. WP(C) 13572 2021 11. We therefore find no merit in the present petition. The same is dismissed. There shall be no order as to cost. NAVIN CHAWLA J MANMOHAN J DECEMBER 1 2021 AB WP(C) 13572 2021 

Summary: The issue is whether a Border Security Force (BSF) personnel, being under intoxication due to mental tension and who misbehaves with the superior officers deserve leniency as per the case of Ashok Kumar v. DG. BSF. This was clarified in the case of Guddu Kumar v. Union of India and Others, in W.P.(C) 13572/2021, decided by Hon’ble Mr. Justice Manmohan &amp; Hon’ble Mr. Justice Navin Chawla on December 1, 2021. Facts of the Case: The petitioner to the case being a Border Security Force personnel was dismissed from the service through an order dated 29.12.2020 passed by the Commandant 148 BN, Border Security Force (BSF). Another order dated 13.04.2021 passed by respondent no. 3, dismissing the representation of the petitioner against the order of removal from service; and another order dated 09.06.2021 was passed by respondent no. 2 on the ground that under Section 117 of the Border Security Force Act, 1968 read with Rule 167(2) of the Border Security Force Rules, 1969, a person aggrieved by any order passed by the Summary Security Force Court (SSFC) can present only one petition to any of the officers. Aggrieved by the aforementioned orders, the petitioner had filed this Writ Petition seeking relief. Contentions of the Petitioner (Guddu Kumar): The counsel for petitioner contended that a total of six charges were framed viz. intoxication while on duty, misbehaved and abusing the senior officers, use of threatening language, unauthorized possession of liquor and mobile phone, and refusal to sit in the ambulance for medical tests. The learned counsel for the petitioner submits that the petitioner was forced to enter a plea of guilty on the six charges against him and on the basis of this forced plea of guilt entered by the petitioner, the SSFC held the petitioner to be guilty of the charges framed against him without recording any evidence. The petitioner referred to the case of Ashok Kumar v. DG. BSF &amp; Ors. (W.P. (C) 2145/1998) where it is submitted that the petitioner was suffering from mental tension as his father was hospitalized and he doesn’t know about the situation and in duress had consumed alcohol and therefore, deserved leniency. Contentions of the Respondent (BSF &amp; UOI): The learned counsel for the respondent contended that the petitioner was found to be under the influence of alcohol and used threatening and insubordinate language to his superior officers. The above charges framed against the petitioner are extremely grave. The same clearly reflect gross indiscipline on part of the petitioner. The petitioner is a member of a disciplined force and was found to be indulging in these activities while being on duty. Moreover, the admission of guilt was not forced as the petitioner has appended his signature on the proceeding sheet. The proceeding sheet also records that the petitioner was warned of the repercussion of such admission. The said proceedings are dated 29.12.2020 and surely the petitioner understood the same. Judgment by the Court: After considering the submissions made by the parties, the Court held that the charges against the petitioner are of grave nature and the penalty imposed on the petitioner is not disproportionate. The observation of this Court in Ashok Kumar case cannot be considered as having laid down as a rule that in every case where an officer of Armed Force is found to be intoxicated on duty and indulging in unruly behavior, he would deserve leniency. Therefore, no merits are found in the present petition. The same is dismissed.