Jeevan Singh Bathyal vs Union Of India & Anr

BSF ACT 1968, SEC

40","A N OMISSION PREJUDICIAL TO GO

ORDER AND DISCIPLINE OF THE FORCE

In that he,

O n 17th Nov.2019 at about 1730 hrs, while

performing 2nd 2 nd Shift OP duty from 1200 hrs

to 1800 hrs at OP Point No.06 in the AOR o

BOP Gunarmath, failed to perform his duty

properly and was negligent enough which resulted

in an exfiltration bid by Bangladeshi Nationals

wherein a heavy iron ladder was placed on the

fence to scale over the fence and attempt was

made in his presence to cross the fence in close

proximity to his place of duty. He also didn’t

take any interest in apprehending these illegal

migrants, which resulted in few illegal migrants

managing to escape.â€​

cannot be heard to raise the said ground then.,

We have also asked the counsel for the petitioner, whether we, sitting in writ jurisdiction, are entitled to interfere with the findings of facts arrived",

at by the Disciplinary Authorities at as many as four stages. In our opinion, the scope of interference in writ jurisdiction with such decisions is confined",

to any error of procedure prescribed in conducting the enquiry or in the decision making process or perversity in findings of fact and not on the merits,

of the decision. In writ jurisdiction, all we have to examine is whether there was some evidence on the basis whereof the authority entrusted with the",

duty to hold the inquiry and which evidence reasonably supports the conclusion reached. It is not the duty of the High Court, in a petition under Article",

226, to review the evidence and to arrive at an independent finding on the evidence. The Departmental Authorities are the sole judges of facts and if",

there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted",

to be canvassed before the High Court. In exercising judicial review in disciplinary matters, the High Court has to follow the rule of restraint, as the",

determination whether a misconduct has been committed, lies primarily within the domain of the Disciplinary Authority; deference to a finding of fact",

by the Disciplinary Authority is a recognition of the idea that it is the employer who is responsible for the efficient conduct of their service and that,

disciplinary enquiries are not governed by strict rules of evidence which apply to judicial proceedings; the standard of proof is hence not the strict,

standard which governs the criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities.",

Reference in this regard may be made to State of Andhra Pradesh Vs. S. Shree Rama Rao AIR 1963 SC 172, 3State of Andhra Pradesh Vs. Chitra",

Venkata Rao (1975) 2 SCC 557, Union of India Vs. G. Ganayutham (1997) 7 SCC 46,3 Apparel Export Promotion Council Vs. A.K. Chopra (1999) 1",

SCC 759, R.S. Saini Vs. State of Punjab (1999) 8 SCC 9,0 Ashok Kumar Vs Sita Ram (2001) 4 SCC 478 ,Registrar General, High Court of",

Judicature of Madras Vs. K. Muthukumarasamy (2014) 16 SCC 55,5 Director General of Police, Railway Protection Force Vs. Rajendra Kumar",

Dubey 2020 SCC OnLine SC 954 and State of Rajastan Vs. Heem Singh 2020 SCC OnLine SC 886.,

The counsel for the petitioner has drawn our attention to the dicta of this Court in Ramesh Chander Vs. Union of India (2016) 232 DLT 113 (DB,)",

where this Court, in paragraphs 28 and 29 of the judgment, after perusing the record and statement of witnesses, found the case to be of no evidence",

against the petitioner.,

We find, that why this Court interfered in that case was because the petitioner therein had been meted out the penalty on the basis of an opinion of",

the witness that delay of 5 minutes by the petitioner in that case in reaching the scene of the incident was deliberate and by reasoning that there was,

no evidence of deliberate attempt by the petitioner in that case to delay. On the contrary, in the present case, we find the petitioner to have, in his own",

statement before the SSFC stated that he was alerted about the infiltration on hearing the sounds of “pakro†(catch) and otherwise he was,

concentrating on the possibility of infiltration at another point. The petitioner has thereby admitted that he was not paying attention to the entire area,

under his supervision. The incident of infiltration otherwise is not disputed by the petitioner.,

We also find from a reading of the testimony of the 3rd, 5th and 6th prosecution witnesses at pages 47, 51 and 53 respectively of the paper book,",

that there was ample evidence for the charge on which the petitioner has been dismissed.,

We thus do not find the present to be a case of the petitioner having been meted out the punishment without the evidence being on record. Once,

there is evidence found on record, the weightage to be given thereto is not in the domain of the writ court and the conclusions to be drawn therefrom",

are in the exclusive domain of the Disciplinary Authorities who are well versed with the spot and with the duties which are required to be performed.,

The counsel for the petitioner has then contended that unlike in the Armed Forces where outside the Disciplinary Authorities, a forum of appeal in",

the form of the Armed Forces Tribunal (AFT) has been set up, there is no such forum for paramilitary forces like BSF; it is argued that for this",

reason, a little latitude is required to be given in writ jurisdiction.",

We are afraid the writ jurisdiction cannot be converted into appellate jurisdiction.,

If the grievance of the personnel of the paramilitary forces is of discrimination viz-a-vis Armed Forces, the same has to be raised separately and",

the same cannot enlarge the scope of interference in writ jurisdiction.,

The counsel for the petitioner has lastly drawn attention to the impugned order dated 29th October, 2020 of the Director General of BSF, where",

the contention of the petitioner that on the subject date i.e. 17th November, 2019 he was on camp guard duty from 0600 hours to 1200 hours and was",

ordered to perform OP duty from 1200 hours to 1600 hours and that it was not humanly possible to maintain high level of alertness after continuously,

performing hard labour duty for almost 12 hours at a stretch, is noticed.",

The very fact that the Director General, in the impugned order has noticed the aforesaid contention of the petitioner and after noticing the same",

has dismissed the revision petition of the petitioner, again shows that the final order of dismissal from service is after proper consideration of all facts,",

findings and contentions.,

It is also significant that the petitioner, when appeared before the SSFC to depose, did not give the same as a ground.",

No case for interference is made out. Dismissed.,