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2024 DAILYLAW 2422 (CAL)

Ravi Kumar Singh v. Union of India

2024-05-09

Rai Chattopadhyay

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JUDGMENT : RAI CHATTOPADHYAY, J. 1. The writ petitioner who is a Border Security Force employee and has been compulsorily retired from service pursuant to the order of the Appellate Authority dated March 22, 2022, has filed this writ petition to redress his grievance. 2. Mr. Nandy appearing for the writ petitioner has submitted that it has been wrongly alleged against his client that he has ever contracted a second marriage, during subsistence of his first marriage. He says further that it is also wrong to understand or deduce in any way that the writ petitioner has ever confessed that fact, before the respondent authority. 3. He says that a show cause was issued upon the writ petitioner dated July 7, 2018. From the document annexed with the writ petition, he has referred to an undated letter, said to have been written by the writ petitioner to the Commandant, 31 Battalion, BSF, Bagafa P.O. Santir Bazar, Tripura (at page 45 of the writ petition). He says on the basis of the same that the writ petitioner has never accepted the allegation of his contracting a second marriage during subsistence of his first marriage. He would refer to the text of the said letter to submit that the writ petitioner has never replied before the authority, accepting the said alleged fact. Mr. Nandy has further referred to an affidavit affirmed by the complainant and notarised on April 17, 2021. By dint of the same the complainant has exonerated the petitioner from any allegation and stated that an untrue allegation was earlier levelled by her against the petitioner at the instigation of the parents of the petitioner, that is, respondent Nos. 8 and 9 (now deceased). Mr. Nandy therefore says that the foundation of the charge of misconduct said to have been proved by the authority, that is, confession by the writ petitioner to that effect, is only misconceived and untrue. No punishment could have been based on such finding, he says. He says further that after the complainant having withdrawn the complaint, the respondent authority should not and could not have proceeded to impose punishment of compulsory retirement upon the writ petitioner. Mr. Nandy has sought for an appropriate order of relief directing reinstatement of the writ petitioner in service with ancillary benefits. 4. Mr. Gupta representing the Border Security Force (respondent Nos. Mr. Nandy has sought for an appropriate order of relief directing reinstatement of the writ petitioner in service with ancillary benefits. 4. Mr. Gupta representing the Border Security Force (respondent Nos. 2 to 6), is however emphatically raising objection as to the contentions and prayers of the writ petitioner. His categorical submission is about false statement made by the writ petitioner and gross suppression of material facts by him, in this writ petition. He says that a full fledged preliminary inquiry as well as proceedings before the Court of Inquiry has been done to enquire into the charges levelled against the writ petitioner. He has further stated on the basis of the document annexed with the affidavit- in-opposition filed by the said respondents that, in the Court of Inquiry proceeding, the writ petitioner has conceded to the charge levelled against him and admitted the same. After admission of charge by the writ petitioner there was no impediment for the concerned authority to accept the same as the foundation of guilt by the writ petitioner, he says. Therefore, such confession made by the writ petitioner before the Court of Inquiry, has been accepted by the disciplinary authority and adequate punitive measures, as per the prevalent rules to govern the service conditions of the writ petitioner, has been imposed. In the entire process, according to Mr. Gupta there has not been any defect in order to question its veracity or legality. He has prayed for dismissal of the writ petition. 5. The brief factual background may be discussed for better understanding of the dispute of the parties involved in this case. The writ petitioner was serving with the respondent Border Security Force. The respondent No. 10, Smt. Latika Ratna was his wife. He was served with a show cause notice dated July 30, 2016. In the same, allegations were made inter alia that the petitioner has committed misconduct in terms of the applicable rules, having contracting a marriage for the second time with one Ms. Shobha Singh @ Shobha Devi, during subsistence of his first marriage with respondent No.10 Smt. Latika Ratna. He being a permanent employee in the post of Constable with the respondent Force would thus be violating Rule 7 of the BSF Rules, 1969 and Rule 15 read with Rule 21 (2)(e) of CCS (Conduct) Rules, 1965. 6. Shobha Singh @ Shobha Devi, during subsistence of his first marriage with respondent No.10 Smt. Latika Ratna. He being a permanent employee in the post of Constable with the respondent Force would thus be violating Rule 7 of the BSF Rules, 1969 and Rule 15 read with Rule 21 (2)(e) of CCS (Conduct) Rules, 1965. 6. A preliminary inquiry as well as a Court of Inquiry proceeding were held against the writ petitioner as to the charge as above. According to the respondent authority, sufficient material could be collected against the writ petitioner as regards the said charge during preliminary inquiry. In the Court of Inquiry proceeding the writ petitioner himself has admitted that he has contracted second marriage with Smt. Shobha Singh during subsistence of his marriage with respondent No. 10. 7. On the basis of such admission made before the Court of Inquiry by the writ petitioner, the disciplinary authority found it proper to accept the same as the basic facts, leading to the decision of misconduct committed under the applicable Rules, by the present writ petitioner. Therefore, they have imposed punishment of compulsory retirement, to the writ petitioner. 8. Surprisingly, the writ petition is devoid of any averment as to the Court of Inquiry proceeding held against the writ petitioner or the result thereof, excepting one or two copies of evidence of witnesses being annexed therewith. There is no averment made by the writ petitioner as regards conduct of any such Court of Inquiry. 9. Mr. Nandy appearing for the writ petitioner in reply has tried to persuade the Court that the document relied on by the authorities in the Court of Inquiry to be the confession made by the writ petitioner, would not actually be a document tenable in the eye of law, being devoid of the signature of the writ petitioner. On the other hand Mr. Gupta has disputed the document relied on by the writ petitioner and annexed that is the undated letter address to the Commandant, 31 Battalion, BSF, Bagafa, to be the reply to the show cause dated July 7, 2016. Mr. Gupta instead has relied on some other document as annexed in the affidavit- in-opposition filed by the respondent Border Security Force to be the letter by the writ petitioner in reply to the said show cause notice. Mr. Gupta instead has relied on some other document as annexed in the affidavit- in-opposition filed by the respondent Border Security Force to be the letter by the writ petitioner in reply to the said show cause notice. The veracity of the document as above relied on by the writ petitioner is challenged in this case. Mr. Gupta, though has not denied the affidavit subsequently filed by the complainant, that is, dated April 17, 2021, exonerating the writ petitioner from the charges, but says that in view of the petitioner admitting the charges, the said affidavit would not bear any relevance for consideration of the Court of Inquiry or the disciplinary authority. 10. The Court is shocked to notice that the entire fact of conduct of the Court of Inquiry proceeding has been omitted by the writ petitioner to mention in the writ petition. An inquiry having been conducted by the authority or not after issuance of a show cause notice and before imposition of punishment, shall bear a far reaching effect to the outcome thereof. As per the settled law, every right of hearing and defending himself, should be extended to a delinquent employee by the authority, if the authority desires to charge him with any misconduct. The fairness and reasonableness of action of the authority, would be determined from the same, to evaluate if the authority has acted in due compliance with the principles of natural justice or not, for which it is duty bound to do. Inquiry is the place where delinquent would exercise such right extended to him by examining authority’s documents, its witnesses and also relying upon his own version. The bearing of such an opportunity being extended to an employee or not is patently relevant with the punishment to be awarded. The end result has to be differing in case of such an opportunity being extended to the delinquent employee and in cases otherwise. 11. Therefore it was incumbent for a Court to know if the writ petitioner has at all been extended the opportunity to defend himself in any proceeding of inquiry as to the charges against him. The said fact is suppressed in the writ petition. The argument made by Mr. Nandy in reply to that of Mr. 11. Therefore it was incumbent for a Court to know if the writ petitioner has at all been extended the opportunity to defend himself in any proceeding of inquiry as to the charges against him. The said fact is suppressed in the writ petition. The argument made by Mr. Nandy in reply to that of Mr. Gupta that the document relied on in the inquiry proceeding by the authority would not be a viable document, is an issue which could have come only after the writ petitioner disclosing at the first instance regarding an inquiry having held against him in due course and also that he has participated in such an inquiry. A suppression of this fact by the writ petitioner would bear a far reaching consequence as to the result of the writ petition. The Court is compelled to take judicial notice of such gross suppression of material fact by the writ petitioner. 12. It is trait that to seek equity, a man has to do equity and come before the Court with clean hands. On the discussion as above, obviously in this case the Court could not find the writ petitioner to have maintained such virtue. Instead the Court is exasperated that intentional suppression of material fact has been made by the writ petitioner, thereby, on one hand putting up a vexatious claim in the writ petition by him and on the other hand misleading the Court in properly appreciating the merits of this case. Both are condemnable. 13. Therefore, on the premises as above, this Court not only finds that the writ petition is not eligible to be entertained but also is of considered view that such dereliction from being a genuine litigant should be slapped with exemplary cost. 14. The writ petition is dismissed. The petitioner shall pay a cost of Rs. 2 lakhs. 50% of the same shall be remitted to the State Legal Aid Services Authority and the rest would be remitted to the respondent authority, for being utilised for any benevolent purpose undertaken by it. The cost shall be remitted within a period of 20 days from the date of this order. Let a copy of this order be sent for information to the offices of State Legal Aid Services Authority and respondent No. 2. 15. The cost shall be remitted within a period of 20 days from the date of this order. Let a copy of this order be sent for information to the offices of State Legal Aid Services Authority and respondent No. 2. 15. The writ petition being WPA 11717 of 2022 is disposed of along with all pending application, if any. 16. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties upon compliance of all formalities.