1 CGHC010071952021 2026:CGHC:30887 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1818 of 2021 1 - Prithvi Pal Yadav S/o Shiv Prasad Yadav Aged About 28 Years Ex . Constable No. 133500125, Thq 114, Bn Bsf , Pakhanjore, Kanker , Chhattisgarh, R/o Vilage Samouli, Post Bhaiyathan, Police Station Jhilmili, Bhaiyathan, District Surajpur Chhattisgarh., District : Surajpur, Chhattisgarh ... Petitioner versus 1 - Union Of India Through Its Secretary, Ministry Of Home Affairs , North Block New Delhi 110001., District : New Delhi, Delhi 2 - Director General Border Security Force, 2nd Floor, Block No. 10, C.G.O. Complex, Lodhi Road, New Delhi 110003., District : New Delhi, Delhi 3 - Commandant 114 Bn, B.S.F. , Pakhanjore, Kanker , Chhattisgarh, Pin 494776 Through Director General Border Security Force, 2nd Floor, Block No. 10, C.G.O. Complex, Lodhi Road, New Delhi 110003., District : New Delhi, Delhi ---- Respondents For petitioner : Mr. Pawan Shrivastava, Advocate For Respondent/UOI : Mr. Amitesh Kumar Pandey, CGC Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 21.07.2026 1. The petitioner has filed this petition seeking following relief (s) : “10.1That the Hon'ble Court may kindly be pleased to call the entire records relating to the case of the Petitioner. 10.2 That, the Hon'ble Court may kindly be płeased to issue a writ in the nature of certiorari and quash/set-aside the impugned order dated- 06.12.2019 and 28.03.2018 (Annexure-P/1). 10.3 That, the Hon'ble Court may kindly be pleased to issue a writ and direct the respondent to re-instate the petitioner in service with full back wages/consequential benefits. -2- 10.4 That, the Hon'ble Court may kindly be pleased to issue a writ and direct the respondent to release the salary for the period which was served by the petitioner with respondents. 10.5 That, any other relief which Hon'ble Court deems fit and proper in the facts and circumstances of the case and cost of the petition. 2. The facts in brief are that the petitioner was selected for appointment to the post of Constable(GD) in the Border Security Force on 16.01.2013. He successfully completed the training and was thereafter, posted with the 65th Battalion in the State of Meghalaya. Subsequently, his services were transferred to Pakhanjore, District Kanker, State of Chhattisgarh, where he joined his duties on 09.07.2017. The petitioner moved an application for grant of leave in the month of October, 2017 for the period from 16.10.2017 to 25.10.2017, which was sanctioned. However, the petitioner failed to rejoin his services on 25.10.2017 or 26.10.2017 and overstayed for a period of 111 days. He reported to his Battalion on 13.02.2018. Article of charge was issued, wherein allegation was made to the effect that the petitioner failed to rejoin his duty on the expiry of the said leave and voluntarily rejoined at Transit Camp, Durg on 13.02.2018 after overstaying for 111 days. Vide order dated 27.03.2018, the disciplinary authority i.e. Commandant, 114 Battalion, BSF, appointed itself as Presiding Officer and Interpreter and on 28.03.2018, completed/concluded the enquiry and on same day i.e. 28.03.2018 inflicted penalty of dismissal from service. The petitioner preferred an appeal before the Director General, BSF, which was dismissed vide order dated 06.12.2019. The petitioner has challenged both the orders by filing this petition. 3. Mr. Shrivastava, learned counsel appearing for the petitioner would 3 submit that there was an allegation of overstaying against the petitioner. He would contend that, due to unavoidable circumstances, the petitioner could not join his services after expiry of the sanctioned leave. He would submit that the petitioner fell sick and sufficient documents were produced before the authority concerned. It is further argued that the disciplinary authority exercised the powers of the Presiding Officer/Enquiry Officer, Interpreter/Presenting Officer, and the procedure adopted by the said authority was erroneous and bad in law. He would contend that a person cannot be a judge in his own cause. He has placed reliance on the judgment passed by the Hon'ble Supreme Court in the matter of Union of India and Others Vs. Ram Lakhan Sharma, reported in (2018) 7 SCC 670, and the judgment passed by the Coordinate Bench in the matter of Lacchhan Ram Giri Vs. State of Chhattisgarh, passed in WPS No.4539 of 2012, decided on 11.05.2018. He would pray to allow this petition on this ground alone. 4. On the other hand, learned counsel appearing for the respondent/Union of India would oppose the submissions made by Mr. Shrivastava. He would refer to Annexure R/19, wherein the petitioner pleaded guilty. It is argued that, as the petitioner pleaded guilty, a full-fledged departmental inquiry was not conducted by the disciplinary authority in view of the provisions of Rule 142(2) of the Border Security Force Rules, 1969 (for short, "the Rules of 1969"). He would further refer to Annexure R/20, wherein the petitioner prayed for an opportunity to improve his conduct. It is argued that, -4- as the petitioner admitted his guilt, the authority concerned rightly inflicted the penalty of dismissal from service, and the Appellate Authority affirmed the finding recorded by the disciplinary authority. He would contend that the petition deserves to be dismissed. 5. I have heard the learned counsel appearing for the parties and perused the documents placed on record. 6. Rules 142 & 143 of the Rules of 1969 read as under : “142. General plea of "Guilty "or "Not Guilty ".- (1) The accused person's plea of "Guilty "or "Not Guilty "(or if he refuses to plead or does not plead intelligibly either one or the other), a plea of "Not Guilty "shall be recorded on each charge. (2)If an accused person pleads "Guilty", that plea shall be recorded as the finding of the Court; but before it is recorded, the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty, and of the difference in procedure which will be made by the plea of guilty and shall advise him to withdraw that plea if it appears from the record or abstract of evidence (if any) or otherwise that the accused ought to plead not guilty. (3)Where an accused person pleads guilty to the first two or more charges laid in the alternative, the Court may after sub-rule (2) has been complied with and before the accused is arraigned on the alternative charge or charges, withdraw such alternative charge or charges as follow the charge to which the accused has pleaded guilty without requiring the accused to plea thereto, and a record to that effect shall be made in the proceedings of the Court. 143. Procedure after plea of "Guilty "-(1) Upon the record of the plea of "Guilty", if there are other charges in the same charge-sheet to which the plea is "Not Guilty ", the trial shall first proceed with respect to those other charges, and, after the finding on those charges, shall proceed with the charges on which a plea of "Guilty "has been entered, but if there are alternative charges, the Court may either proceed with respect to all the charges as if the accused had not pleaded "Guilty "to any charge or may, instead of trying him, record a finding of "Guilty "upon any one of the alternative charges to which he had pleaded 5 "Guilty "and finding of "Not Guilty "upon all the other alternative charges which precede such charge. (2) (a) After the record of the plea of "Guilty "on a charge (if the trial does not proceed on any other charges) the Court shall read the record or abstract of evidence and annex it to the proceedings, or if there is no such record, or abstract, shall take and record sufficient evidence to enable it to determine the sentence, and the reviewing officer to know all the circumstances connected with the offence. (b)The evidence shall be taken in like manner as is directed by these rules in the case of a plea of "Not Guilty " .(3)The accused may, after such evidence has been taken or, as the case may be, the record or abstract of evidence has been read, address the Court with reference to the charge and in mitigation of punishment and may call witnesses as to his character. (4) (a) If from the statement of the accused, or from the record of evidence, or otherwise, it appears to the Court that the accused did not understand the effect of his plea of "Guilty ", the Court shall alter the record and enter a plea of "Not Guilty "and proceed with the trial accordingly. (b)Any alternative charges withdrawn under sub-rule (1) shall be reinstated in the charge-sheet and the trial shall take place as if they had never been withdrawn. (5)If a plea of "Guilty "is recorded on some charges and the trial proceeds with respect to other charges in the same charge-sheet, the proceedings under sub- rules (2) and (3) shall take place after the findings on the other charges in the same charge-sheet are recorded. (6)When the accused states anything in mitigation of punishment which in the opinion of the Court requires to be proved, and would, if proved, affect the amount of punishment, the Court may permit the accused to call witnesses to prove the same.” 7. Rule 142 deals with the plea of ‘Guilty’ or ‘Not Guilty’. If an accused person pleads ‘Guilty’, such plea shall be recorded as the finding of the Court; however, the Court must, at the same time, satisfy itself that the accused understands the nature of the -6- charge and the language in which it is framed. 8. Rule 143 deals with the procedure to be followed after a plea of ‘Guilty’. If an accused pleads ‘Guilty’ to a charge, the Court shall read the record or abstract of evidence and annex the same to the proceedings. 9. Meaning thereby if a person pleads guilty, the Court is required to hold an enquiry strictly in accordance with law by examining the necessary witnesses and exhibiting the relevant documents. 10. In the present case, the petitioner overstayed for 111 days beyond the sanctioned leave and rejoined service on 13.02.2018. The disciplinary authority issued an article of charge and thereafter appointed itself as the Presiding Officer and Interpreter, and concluded the enquiry within 24 hours. It is not in dispute that the petitioner admitted his guilt. 11.The petitioner was inflicted with the penalty of dismissal from service vide order dated 28.03.2018, which was subsequently affirmed by the Appellate Authority. The orders passed by the Disciplinary Authority and affirmed by the Appellate Authority are not sustainable on the following two grounds: (i) the Disciplinary Authority failed to follow the procedure contemplated under Rule 143 of the Border Security Force Rules, 1969, inasmuch as evidence was not recorded and the petitioner was not afforded an opportunity of hearing; the relevant documents were not supplied to the petitioner and, solely on the basis of the plea of guilt, a major penalty of dismissal from service was imposed; and (ii) the Disciplinary Authority appointed itself as the Presiding Officer as 7 well as the Interpreter. 12. It is a well-settled principle of law that the disciplinary authority or enquiry officer cannot act as the prosecutor as well as the judge. The disciplinary authority acting in a quasi-judicial authority is in the position of an independent adjudicator and he is not supposed to be a representative of the department/ Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official. The Hon’ble Supreme Court in the matter of Ram Lakhan Sharma (supra) in para 33 held as under : “33. The Division Bench after elaborately considering the issue summarised the principles in paragraph 16 which is to the following effect: “16. We may summarise the principles thus: (i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the position of a prosecutor. (ii) It is not necessary for the Disciplinary Authority to appoint a Presenting Officer in each and every inquiry. Non- appointment of a Presenting Officer, by itself will not vitiate the inquiry. (iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the Inquiry Officer puts any questions to the prosecution witnesses to elicit the facts, he should thereafter permit the delinquent employee to cross- examine such witnesses on those clarifications. (iv) If the Inquiry Officer conducts a regular examination-in-chief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or cross-examines the defence witnesses or puts suggestive questions to establish the prosecution case employee, the Inquiry Officer acts as prosecutor thereby vitiating the inquiry. (v) As absence of a Presenting Officer by itself will not vitiate the inquiry and it is recognised that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question whether an -8- Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is let in and recorded in the inquiry. Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officer depends on the facts of each case. To avoid any allegations of bias and running the risk of inquiry being declared as illegal and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. Be that as it may.” 13.The Coordinate Bench in the matter of Lachchhan Ram Giri (supra) held as under : “8. Further perusal of the record would reveal that the petitioner during the course of enquiry had moved applications i.e. Annexures P-9 & P-10 seeking for documents from the Enquiry Officer which are being relied upon by the Department against the petitioner but the same has not been supplied to the petitioner. Therefore, prima facie, the petitioner has been denied the documents which has been relied upon by the authority concerned to punish the petitioner. At this juncture, it would be relevant to refer to the judgment of the Supreme Court in the case Govt. of A.P. and others vs. A. Venkata Raidu reported in (2007) 1 SCC 338 where in paragraph-9 it has been held as under: "9. We respectfully agree with the view taken by the High Court. It is a settled principle of nature justice that if any material is sought to be used in an enquiry, then copies of that material should be supplied to the party against whom such enquiry is held. In Charge 1, what is mentioned is that the respondent violated the orders issued by the Government. However, no details of these orders have been mentioned in Charge 1. It is well settled that a charge-sheet should not be vague but should be specific. The authority should have mentioned the date of the GO which is said to have been violated by the respondent, the number of that Go, etc. but that was not done. Copies of the said Gos or directions of the Government were not even placed before the enquiry officer. Hence, Charge 1 was not specific and hence no finding of guilt can be fixed on the basis of that charge. Moreover, as the High Court has found, the respondent only renewed the deposit already made by his predecessors. Hence, we are of the opinion that the respondent cannot be found guilty for the offence charged." Similar view has been taken by the Supreme Court in the case of Saroj Kumar Sinha (supra) where in paragraph-34 it has been held as under: 9 "34. This Court in the case of Kashinath Dikshita vs. Union of India, (1986) 3 SCC page 229, had clearly stated the rationale for the rule requiring supply of copies of the documents, sought to be relied upon by the authorities to prove the charges levelled against a Government servant. In that case the enquiry proceedings had been challenged on the ground that non supply of the statements of the witnesses and copies of the documents had resulted in the breach of rules of natural justice. The appellant therein had requested for supply of the copies of the documents as well as the statements of the witnesses at a preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority." 9. So far as the non-appointment of Presenting Officer is concerned, undisputedly the record shows that no Presenting Officer was in fact appointed. The law so far as non appointment of Presenting Officer is concerned, it would be relevant at this juncture to refer to the judgment of the Supreme Court in the case of Union of India through its Secretary, Ministry of Railway, New Delhi and Others v. Mohd. Naseem Siddiqui reported in (2005) 1 LLJ 931 wherein paragraph-7 the Hon'ble Supreme Court dealing with the issue has held as under: "7. One of the fundamental principles of natural justice is that no man shall be a judge in his own cause. This principle consists of seven well recognised facets: (i) The adjudicator shall be impartial and free from bias, (ii) The adjudicator shall not be the prosecutor, (iii) The complainant shall not be an adjudicator, (iv) A witness cannot be the Adjudicator, (v) The Adjudicator must not import his personal knowledge of the facts of the case while inquiring into charges, (vi) The Adjudicator shall not decide on the dictates of his Superiors or others, (vii) The Adjudicator shall decide the issue with reference to material on record and not reference to extraneous material or on extraneous considerations. If any one of these fundamental rules is breached, the inquiry will be vitiated. Further, in paragraph-16, Their Lordships summarized the legal position by observing as under:- (i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the position of a prosecutor. (ii) It is not necessary for the Disciplinary Authority to appoint a Presenting Officerin -10- each and every inquiry. Non- appointment of a Presenting Officer, by itself will not vitiate the inquiry. (iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the Inquiry Officer puts any questions to the prosecution witnesses to elicit the facts, he should thereafter permit the delinquent employee to cross-examine such witnesses on those clarifications. (iv) If the Inquiry Officer conducts a regular examination-in-chief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or cross-examines the defence witnesses or puts suggestive questions to establish the prosecution case employee, the Inquiry Officer acts as prosecutor thereby vitiating the inquiry. (v) As absence of a Presenting Officerby itself will not vitiate the inquiry and it is recognised that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is let in and recorded in the inquiry. Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officerdepends on the facts of each case. To avoid any allegations of bias and running the risk of inquiry being declared as illegal and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. Be that as it may." 10. A similar view has been taken by the Supreme Court in the case of Moni Shankar (supra) where in paragraph-30 it has been held as under. "30. For the aforementioned purpose, the manner in which the enquiry proceeding was conducted was required to be taken into consideration by the High Court. The trap was not conducted in terms of the Manual; the Enquiry Officer acted as a prosecutor and not as an independent quasi-judicial authority; he did not comply with Rule 9 (21) of the Rules, evidently, therefore, it was not a case where the order of the Tribunal warranted interference at 11 the hands of the High Court." 11. The Supreme Court had again in a similar situation in the case of State of Uttaranchal and others v. Kharak Singh reported in (2008) 8 SCC 236 in paragraph-17 has held as under: "17. On the other hand, one Mr. P.C. Lohani, Dy. Divisional Forest Officer, Nandhaur acting as an inquiry officer after putting certain questions and securing answers submitted a report on 16/11/1985. No witnesses were examined. Apparently, there was not even a presenting officer. A perusal of the report shows that the inquiry officer himself inspected the areas in the forest and after taking note of certain alleged deficiencies secured some answers from the delinquent by putting some questions. It is clear that the inquiry officer himself has acted as the investigator, prosecutor and judge. Such a procedure is opposed to principles of natural justice and has been frowned upon by this Court." 12. The Hon'ble Supreme Court again in the case of State of Uttar Pradesh and others vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772, in paragraphs- 27 to 30 has held as under: "27.......But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge. 28. An enquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department / disciplinary authority/ Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. -12- 29. Apart from the above by virtue of Article 311 (2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in punishment being imposed on the employee. 30. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service." 14.Having considered the facts of the present case and law laid down by the Hon’ble Supreme Court in above-referred matters, the order passed by the Disciplinary Authority dated 28.03.2018 and affirmed by the Appellate Authority dated 06.12.2019 are hereby quashed. The respondents are directed to reinstate the petitioner in service forthwith with all consequential benefits. 15.In view of the above, the petition is allowed. Sd/- (Rakesh Mohan Pandey) Judge Rekha