Page No.# 1/16 GAHC040002322024 2025:GAU-AP:1085 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/80/2024 Omkar Nath Pandey Son of Late Kanchan Pandey, Village and PO Rajwadh, PS Daltonjanj, Palamu District, Jharkhand 822101 VERSUS The Union of India and 3 Ors represented by the Secretary, Govt of India, Ministry of Home Affairs, New Delhi 110001 2:The Director General Age: 0 Occupation : Indo Tibetan Border Police (ITBP) Block No.2 CGO Complex Lodhi Road New Delhi- 03 3:The Deputy Inspector General Age: 0 Occupation : Indo Tibetan Border Police (ITBP) Khating Hill Itanagar Arunachal Pradesh 791111 4:The Commandant Age: 0 Occupation : 10th Battalion Indo Tibetan Border Police (ITBP) PO Kimin Papumpare District Arunachal Pradesh 79112 Page No.# 2/16 Advocate for the Petitioner : S B Laskar, S B Laskar,D Dutta,N Kalita,H A Laskar Advocate for the Respondent : Marto Kato, DSGI BEFORE HONOURABLE MR. JUSTICE NELSON SAILO JUDGMENT AND ORDER (CAV) Date : 19-09-2025 Heard Mr. S. B. Laskar, learned counsel for the petitioner and Mr. M. Kato, learned Deputy Solicitor General of India for all the respondents. [2.] By filing this writ petition, the petitioner has challenged the Order dated 24.01.2017 passed by the Commandant 10th Battalion, ITBP (respondent No. 4) removing him from service, w.e.f., 24.01.2017 under Section 51(c) of the ITBP Act, 1992 (ITBP Act). The petitioner has also challenged the Letter dated 18.05.2017 written by the Deputy Inspector General, ITBP, Itanagar (respondent No. 3), rejecting the appeal submitted by the petitioner dated 15.03.2017 and confirming the order of the respondent No. 4 dated 24.01.2017. [3.] Brief facts of the case, as projected by the petitioner is that he was serving as Constable (General Duty), “F” Company in the 10th Battalion, ITBP and his Regimental No. was 040230763. He has served in the ITBP from 14.01.2004 until he was removed from service, w.e.f., 24.01.2017. Page No.# 3/16 [4.] The petitioner contends that in the month of September, 2016, he was put to night shift duty in connection with Internal Security Duty of 10th Battalion deployed at 31st Battalion, Yupia, Papum Pare and he performed his duty sincerely. However, on 14.09.2016 at about 1500 hours, he went to Yupia Market for charging his mobile. The market was five (5) kilometers away from the Camp and while returning from the market, he could not get any vehicle to return to the camp and therefore, he came back walking and reached the camp at about 1830 hours. The petitioner was assigned night shift duty at Nirjuli Police Station on 14.09.2016 and the reporting time at the Camp premises for the night shift was 1800 hours. As the petitioner was late by thirty (30) minutes, he could not mark his attendance by taking part in the fall-in of the personnel going for the night shift duty. The petitioner’s failure to report for duty on time was due to the aforesaid unavoidable circumstances. [5.] On 15.09.2016, the Inspector/UD, Internal Security Duty, Itanagar, ITBP sent a letter to the respondent No. 4 with a request for a disciplinary action against the petitioner. It was alleged that the petitioner had misbehaved with civilians and remained absent from duty and from the camp premises on 14.09.2016. It was further alleged that the petitioner was found near the camp area in a state of intoxication. Page No.# 4/16 [6.] Pursuant to the letter dated 15.09.2016, a disciplinary proceeding was initiated against the petitioner on the following charges: “Charge-01 Without sufficient cause fails to appear at the time fixed at the parade or place appointed for exercise or duty as per Section 21 (d) of the Indo-Tibetan Border Police Force Act-1992, Regt. No. 040230763 Constable (G.D) Omkar Nath Pandey ‘F’ Company was posted for doing duty at the Company deployed for Internal Security Duty (Itanagar) of 10th Battalion. Direction was issued to the employee to remain present in night shift duty at Nirjuli Police Station but the employee remained absent from the premises of 31st Battalion, ITBP Force at 1800 hours on 14.09.2016 without prior intimation and without permission from competent authority. The employee remained absent at the time of active duty from the camp premises of 31st Battalion without permission from any authority/prior intimation which is punishable as per Section 21 (d) of the Indo-Tibetan Border Police Force Act-1992. Charge-02 Section 43 of Indo-Tibetan Border Police Force Act-1992; violation of good order and discipline. Regt. No. 040230763 Constable (G.D) Omkar Nath Pandey ‘F’ Company Page No.# 5/16 was posted for doing duty at the Company deployed for Internal Security Duty (Itanagar) of 10th Battalion. The employee remained absent from the premises of 31st Battalion, ITBP Force at 1800 hours on 14.09.2016 without prior intimation and without permission from competent authority. The employee was searched in the vicinity of the camp premises and after an extensive search, the employee was found. This has hampered the good order and discipline of the force which is a punishable offence under Section 43 of Indo-Tibetan Border Police Force Act-1992;” [7.] In the disciplinary proceeding, three (3) prosecution witnesses were examined, namely, (i) Inspector/GD. Sunil, as PW1, (ii) HC/GD. Harendra Kumar Singh, as PW2 and (iii) HC/GD. Durjeti Prashad, as PW3. That the trial was conducted by Summery Force Court on 24.01.2017 from 1100 hours to 1140 hours. The petitioner was said to have pleaded guilty and the Summery Court vide Order dated 24.01.2017 declared the petitioner guilty of the charges framed against him and awarded him sentence of removal from service, w.e.f., 24.01.2017 (AN) under Section 51(c) of ITBP Act. Aggrieved, the petitioner preferred an appeal before the respondent No. 3 on 15.03.2017 but the appeal was dismissed and the petitioner was informed vide letter dated 18.05.2017 (Annexure – 5). The petitioner is thus before this Court challenging the order of removal from service and the rejection of his appeal. Page No.# 6/16 [8.] It may be stated herein that prior to filing this writ petition before this Court, the petitioner had approached the High Court of Jharkhand at Ranchi for filing W.P.(S) No. 4901 of 2017 but the same came to be dismissed on account of lack of territorial jurisdiction vide Order dated 05.08.2022. Thereafter, the petitioner has filed the instant writ petition before this Court. [9.] Mr. S. B. Laskar, learned counsel for the petitioner submits that the impugned orders have been challenged by the petitioner primarily on the following grounds: “I. The impugned Sentence for removal from service was awarded on the basis of accusations which were not formally included in the charges framed against the petitioner. II. Removal from service for being absent from duty on 14.09.2016 is arbitrary as the petitioner’s absence from duty was due to some unavoidable circumstances. III. Penalty of removal from service was too much stringent and does not commensurate the charges of unauthorized absence from duty for one day.” [10.] The learned counsel submits that the petitioner could not be present on 14.09.2016 during the fall-in on account of the non-availability of transportation to return to the camp from Yupia. The petitioner has clearly explained why he could not return on time in his statement recorded during the Page No.# 7/16 Summery Court proceedings. Therefore, as his absence from duty was due to unavoidable circumstances, the penalty of removal from service is very harsh and not commensurate to the charge of unauthorized absence from duty for one (1) day. The learned counsel also submits that the impugned sentence of removal from service was awarded to the petitioner, in view of several allegations made against him and for which, no charges were framed. At such, the impugned sentence being in violation of the principles of natural justice and the same should be set aside. The learned counsel also submits that although the petitioner was charged with the violation of Section 21 (d) and Section 43 of the ITBP Act but he was not awarded the penalty under either of the sections. In such an event, the Authority concerned ought to have invoked Section 52 of the ITBP Act, which provides that in view of any penalty to be imposed for conviction under Section 16 to 48, the punishment set out in Section 51, which is lower in scale may be imposed in lieu thereof. The learned counsel therefore submits that instead of imposing/awarding a lesser punishment, the petitioner has been given the penalty of removal from service, which is higher in scale. Even on this ground, the learned counsel submits that the impugned orders should be interfered by this Court and the petitioner reinstated back into the service. The learned counsel in support of his submissions has relied upon the following authorities: Page No.# 8/16 (1) Gopal Dass Vs. Union of India & Ors., 2024 0 Supreme (J&K) 138; (2) Union of India & Ors. Vs. Jogeshwar Swain, (2023) 9 SCC 720; and (3) Union of India & Ors. Vs. Santosh Kumar Tiwari, 2024 0 Supreme (SC) 434. [11.] Mr. M. Kato, learned Deputy Solicitor General of India, submits referring to the affidavit-in-opposition filed by the respondents submits that the petitioner was unauthorizedly absent on 14.09.2016 and for which, he could not perform his night duty. Accordingly, a Summery Force Court was constituted and two (2) charges were framed against the petitioner. The petitioner was given due opportunity to participate in the proceedings and that during such proceedings, the petitioner pleaded guilty of both the charges framed against him. That on the basis of his plea of guilt and after going through the evidence brought on record, the petitioner was awarded the punishment of removal from service, w.e.f., 24.01.2017 (AN) under Section 51(c) of ITBP Act. He submits that removal from service through Summery Force Court is statutorily provided along with the procedure to be followed under Rule 134-161 of Chapter XI of the ITBPF Rules, 1994. All essential procedures and safeguards statutorily provided Page No.# 9/16 have been followed so as to ensure fairness of the procedure adopted and to obviate arbitrariness. The petitioner, in fact, is a habitual offender and his misconduct is bound to adversely affect the overall discipline of the unit and therefore, the punishment imposed upon him is duly justified. He, thus submits that the orders impugned by the petitioner may not be interfered by this Court and that the writ petition should be dismissed. [12.] I have heard the submissions made by the learned counsel for the rival parties and I have perused the materials available on record. According to the petitioner, the impugned sentence for removal from service was awarded on the basis of accusation which were not formally included in the charges framed against him. That removal from service on the basis of being absent from duty on 14.09.2016 is arbitrary and it is not commensurate to the charge of unauthorized absence from duty for one (1) day. [13.] The learned Deputy Solicitor General of India, has produced the departmental records, which on perusal shows that a report was submitted by the Inspector/UD to the respondent No. 4 on 15.09.2016, stating that the petitioner was found to be absent from duty on 14.09.2016 and when search was conducted, he was found near the camp in a state of intoxication. The CHM, Internal Security Duty of 10th Battalion ITBP on 14.09.2016 had also Page No.# 10/16 informed the company commander of Internal Security Duty that the petitioner was found to be missing from the camp premises since 1800 hours on 14.09.2016. Although, search was made, he could not be found anywhere. A call was made on his mobile phone and although it was ringing, the petitioner was not receiving the call. Hence, an absence report was sent for further action. [14.] The Adjutant of 10th Battalion ITBP issued an office order on 28.09.2016 directing the Company Commander of ‘F’ Company to keep the petitioner under observation in terms of the approval given by the respondent No. 4. By another internal office note, the Adjutant directed the Company Commander, ‘F’ Company to ensure the presence of the petitioner before the respondent No. 4 for preliminary hearing on 29.09.2016. Accordingly, hearing was conducted on 29.09.2016 at 1100 hours and the respondent No. 4, upon conclusion of the hearing ordered Record Of Evidence (ROE) to be conducted. A chargesheet was accordingly prepared with two (2) charges on 01.10.2016, which has already been abstracted in Paragraph No. 6 of this order. In terms of Rule 50 of the ITBPF Rules, 1994, Shri S. Mag, Deputy Commander (GD) of 10th Battalion ITBP Force was appointed as ROE Officer to record the evidence against the petitioner, who was charged under Section 21(d) and Section 43 of the ITBP Act. Accordingly, the said Officer prepared the ROE as per Rule 50 of Page No.# 11/16 the ITBPF Rules, 1994 along with supporting documents and submitted the same before the respondent No. 4. During the ROE, the statements of three (3) prosecution witnesses were recorded, namely, (i) Inspector/GD. Sunil, (ii) HC/GD. Harendra Kumar Singh and (iii) HC/GD. Durjeti Prashad. The petitioner was also given the opportunity of cross-examination the said witnesses but he declined the same. [15.] The statements of the petitioner was also recorded, wherein he stated that his absence from duty on 14.09.2016 was on account of he having gone to Yupia Market at around 1500 hours to recharge his mobile as he was having trouble in contacting his family while there was some family problems at home. As he could not get a vehicle for returning, he came back on foot and reached the camp at around 1830 hours while shift for 1800 hours had already left. He sought for forgiveness and promised that he will never make any mistake in future. [16.] The respondent No. 4, upon perusal of the proceedings under Rule 50 of the ITBPF Rules, 1994, constituted a Summery Force Court vide Order dated 20.01.2017 on 24.01.2017 at 1100 hours in accordance with Sections 82 and 86 of the ITBP Act, read with ITBPF Rules, 1994. It was also directed that medical examination of the petitioner would be conducted by the Medical Officer and a Page No.# 12/16 report be submitted before the commencement of the trial. A Memorandum dated 09.01.2017 was also prepared and a copy of the chargesheet and a copy of the ROE along with all documents were furnished to the petitioner while giving him liberty to call for any defense witness. The petitioner also was informed that he may submit the name of any person including the legal practitioner from whom he would like to take assistance. Following the same, the petitioner submitted the name of one HC/GD Vijay Milan Tripathi to be his witness. Accordingly, the proceedings of Summery Force Court was conducted on 24.01.2017 at 1100 hours, wherein, the petitioner was asked as to whether he understood the charges or not and to which he replied that he understood the same as explained to him in Hindi. He also submitted that he had received the chargesheet and the ROE. Upon being asked as to whether he was guilty or not in respect of Charge No. 1 and Charge No. 2, the petitioner pleaded guilty to both the charges. [17.] After the petitioner was found and recorded to have pleaded guilty, he was asked questions by the respondent No. 4 for mitigation of sentence/statement as to character. On the questions put to him as to whether he wish to make any statement in reference to charge Nos. 1 and 2 or in mitigation of punishment/sentence, the petitioner stated that he did not commit Page No.# 13/16 any mistake after the jungle exercise and since that time he was performing his duty well and he requested to call HC/GD Abdul Hameed, ‘F’ Company before the Court to prove his good conduct and to defend himself. HC/GD Abdul Hameed, on being summoned, was asked as to whether the petitioner was present on his duty on 14.09.2016 and to which he replied that he was not present. He stated that he was found outside the camp premises of 31st Battalion ITBP on that day. The verdict of the Court was therefore that the petitioner was found to be guilty of the Charge No. 1 and Charge No. 2 and accordingly, the sentence of removal from service, w.e.f., 24.01.2017 (AN) under Section 51(c) of the ITBP Act, was awarded to the petitioner. The petitioner submitted his appeal to the Deputy Inspector General, Sector Headquaters, ITBP, Itanagar (respondent No.3) on 15.03.2017 but however, the same was rejected and the petitioner was communicated accordingly on 18.05.2017. [18.] According to the petitioner, the sentence of removal from service was awarded on the basis of accusation which were not formally included in the charges framed against the petitioner. However, a perusal of the impugned Order shows that the petitioner was imposed with the impugned penalty on being found guilty of Charge Nos. 1 and 2 and to which, he had also pleaded to be guilty of. The petitioner, nowhere in the writ petition has denied that he had Page No.# 14/16 pleaded guilty under duress or that he did not know the consequence of pleading guilty. Likewise, in the appeal filed by the petitioner before the respondent No. 3, the petitioner has nowhere taken such a stand that he had not pleaded guilty or he was forced to plead guilty. The same only goes to show that the petitioner was aware of the charges framed against him. During the inquiry, three (3) prosecution witnesses were examined, who all deposed that the petitioner was found to be absent from duty and from the camp on 14.09.2016. The petitioner declined to cross-examine any of the prosecution witnesses. The petitioner, even in his statement recorded during the inquiry, did not deny the fact that he was absent from duty on 14.09.2016. In other words, he admitted the same and sought for forgiveness and promised not to repeat the mistake in future. Apart from HC/GD Abdul Hameed, the petitioner had sought for examination of HC/GD Vijay Milan Tripathi, but from the record it appears that the said witness was not examined. However, the petitioner has nowhere stated that non-examination of HC/GD Vijay Milan Tripathi has caused prejudice to him. [19.] The learned counsel for the petitioner has relied upon the case of Gopal Dass (supra), Union of India & Ors. Vs. Jogeshwar Swain (supra) and also Union of India & Ors. Vs. Santosh Kumar Tiwari (supra) but on perusal of the same, Page No.# 15/16 this Court finds that they are all distinguishable on the facts and circumstances involved inasmuch as the petitioner in the instant case as already stated had pleaded guilty and nowhere in his appeal before the respondent No. 3 or in the writ petition has he denied the fact of having pleaded guilty. The respondent authority concerned, therefore, upon considering the charges, came to the finding that the impugned penalty of removal from service be imposed upon him. While imposing such penalty, a mention has been made about the earlier conduct of the petitioner, which basically is for the purpose of reflecting his past conduct and the desirability of retaining him in service. As regards the proportionality of the quantum of the punishment that was imposed, the petitioner having served in a disciplined force, the penalty imposed upon him cannot be said to be excessive and not commensurate to the charges and more so, seeing his past conduct. [20.] The learned counsel for the petitioner has submitted that since the petitioner was charged with violation of Section 21(d) and Section 43 of the ITBP Act and not punished under the said two (2) sections, he ought to have been imposed with a penalty in terms of Section 22 of the ITBP Act, which provides for alternative punishment which is lower in scale as set out in Section 51. However, it may be seen that under Section 51 of the ITBP Act, any of the Page No.# 16/16 punishment provided thereunder can be awarded by the Force Court. Further, even if the petitioner was to be punished under Section 21(d) and Section 43 of the ITBP Act, he would be sentenced to imprisonment for a term which may extend to either three (3) years or for a term which may extend to seven (7) years, if not both. On being convicted and sentenced as such, the petitioner, would not be eligible to be retained in the force because of his conviction and the sentence imposed on him. [21.] In the result and upon due consideration, I do not find any merit in the writ petition and accordingly the same is dismissed leaving the parties bear their own cost. JUDGE Comparing Assistant