AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Mr. Tej Bahadur Singh, learned Senior counsel with Mr. Diwakar, Adv. for the petitioner and learned counsel for the Union of India.
The present writ petition has been filed with the following reliefs:-
(i)For issuance of order(s) / direction(s) or writ(s) in the nature of Mandamus directing the Respondent authorities to reinstate the Petitioner into the service/ job with immediate effect where vide order dated 31.10.2023 passed by the learned Dy. Inspector General, Sector Hqrs. SSB Bettiah (Respondent No. 3) the Petitioner was dismissed from service under Rule-21(1)(b) of SSB Rules, 2009 without getting any reasonable opportunity of showing cause against the allegations levelled against him where the learned Office of the Commandant, 21st Bn. SSB Bagaha (Respondent No. 3) vide his order dated 03.04.2023, was pleased to allow the punishment of "To Be Severely Reprimanded" to the Petitioner, but thereafter firstly vide his letter/ order dated 15.05.2023 Respondent No. 3 considered the fact that the action taken against the Petitioner was illegal, irrelevant of charges, bad & perverse in the eye of the settled principles of law and also against the principle of Natural Justice and therefore ordered to set aside the summary disposal proceedings of 21st Bn. SSB with immediate effect, but surprisingly the letter was not handed over to the Petitioner who was continuing in service after facing the punishment of 'severe reprimand' and after some passage of time, in a most fraudulent and arbitrary way, Respondent No. 3 dismissed the Petitioner from service vide his order dated 31.10.2023 and accordingly Respondent No. 5 vide order dated 02.11.2023 finally struck off the Petitioner from the strength of 1st Bn. SSB, Sonapur (Assam). And/or
(ii)For further issuance of order(s) / direction(s) or writ(s) in the nature of Certiorari for quashing the order dated 31.10.2023 passed by the learned the Dy. Inspector General, Sector Hqrs. SSB Bettiah (Respondent No. 3) against whom the Petitioner preferred an appeal before the learned Inspector General, FTR HQR S.S.B., Patna, Bihar (Respondent No. 2) but despite deciding the appeal application Respondent No. 2 is sitting over the matter and till date no any progress has been marked in the appeal application of the Petitioner. And/or
(iii)For further issuance of order(s) / direction(s) or writ(s) in the nature of Mandamus for making payment of the amount of salary along with other associated allowances for the duration from the date of dismissal of Petitioner from service to the date of his reinstatement into service of SSB. And/or
(iv)For issuance of any further order (s) /direction (s) or writ(s) which this Hon'ble Court may deem fit and proper in the facts and circumstances of the instant case.
Further prayer has been added vide I.A. No.1 of 2024, which was allowed vide order dated 18.11.2024, states as follows:-
(V)That the present I.A. application is being filed for amending/ adding a new relief to the writ petition of the Petitioner, i.e., for further issuance of order(s)/ direction(s) or writ(s) in the nature of Certiorari for quashing/setting aside the order dated 30.01.2024 passed in appeal/FTR-PTN/23/1350-55 by Respondent No. 2 in the appeal preferred by the Petitioner before the Respondent Authorities against the order dated 31.10.2023 passed by the learned Dy. Inspector General, Sector Hqrs. SSB Bettiah (Respondent No. 3) where the Petitioner was dismissed from service under Rule-21(1)(b) of SSB Rules, 2009.
Learned Senior counsel for the petitioner submits that the petitioner was working within the jurisdiction of this Court and was posted as Sub-Inspector (GD) at 21st Bn. SSB, Bagaha having UIN- 11091221. He further submits that the allegation was leveled against the petitioner that he came in touch with a said PIO (Pakistan based lady intelligence operative) over social media on 9th August, 2020 where he allegedly shared his photographs to the said PIO in uniform and he was allegedly in frequent & unauthorized contact with the said PIO till June, 2021, leading to serious security hazard and he was charged for the offence under Section 26, 43 & 24(e) of the SSB Act, 2007 vide charge sheet dated 04.01.2023. He further submits that opportunity of adducing evidence was also provided to him under Rule 51 of the SSB Rules, 2009 thereafter, under the summary trial under Section 58(3) of the SSB Act read with Rule 48 of the SSB Rules, 2009, the petitioner was held guilty and vide order dated 03.04.2023, punishment of ‘To be severely reprimanded’ was imposed upon him.
Learned Senior Counsel further submits that being aggrieved and dissatisfied with the order of punishment, the petitioner has preferred statutory appeal and vide order dated 15.05.2023, the appellate authority has exonerated the charges leveled against him on the ground that the trial proceeding and decision of trial authority are against the principle of natural justice and, therefore, punishment awarded to the delinquent (the petitioner) Sub-Inspector (GD) appears illegal, therefore in exercise of power conferred to undersigned under Rule 48(2) of the SSB, Rules, 2009, set aside the summary disposal proceedings with respect to the petitioner with immediate effect.
Learned Senior Counsel further submits that the said order of exoneration has been passed on 15.05.2023 thereafter, without granting any opportunity to him, one another order dated 31.10.2023 followed by order dated 02.11.2023 passed by respondent No.5 that the petitioner has been dismissed from the SSB and was struck off from the strength of 1st Bn. SSB, Sonapur (Assam) from the date of 31.10.2023. He further submits that from the perusal of order dated 15.05.2023, it becomes crystal clear that the Officer who has exonerated the petitioner is at the rank of Deputy Inspector General of Police, SHQ, SSB, Bettiah, whereas the officer who passed order on 31.10.2023, is also the Deputy Inspector General of Police, SHQ, SSB, Bettiah. He further submits that in a departmental proceeding, the authority is not an administrative Officer rather they are the quasi judicial authority and once the authority has exonerated the petitioner on 15.05.2023 and another same authority cannot review his own order dated 31.10.2023 and it is due to this reason, the petitioner is aggrieved and filed the present writ petition.
Learned Senior further submits that under Rule 29 of the SSB, Rules, 2009, there is special provision inserted in which appeal against orders of dismissal, removal or retirement has been available against the termination of his service to any of the authority higher than one who has passed the termination order within 90 days from the termination of service and it is due to reason, the petitioner has preferred appeal under Rule 29 of the SSB, Rules, 2009 before the higher authority. The memo of appeal is annexed vide Annexure-4 series of the writ petition. He further submits that the final order on the appeal has been passed under Rule 29 of the SSB, Rules, 2009, after filing of the present writ petition and it is due to this reason, the order passed under Rule 29 of the SSB, Rules, 2009 has been added in relief portion by virtue of filing I.A. No.1 of 2024, which was allowed vide order dated 18.11.2024.
In conclusion, learned Senior counsel submits that it is the service jurisprudence that once Commandant has punished the delinquent and its order has been challenged before the DIG, who has exonerated him then, any further hearing with relating to the petitioner shall always be made from the higher authority than the DIG. He further submits that once an officer at the rank of DIG has passed order on 15.05.2023, exonerating the petitioner from the charges leveled against him, then, passing order of dismissal on 31.10.2023 by the same authority holding the same post, is not permissible to pass order of termination against the petitioner in the service jurisprudence. He further submits that the subsequent order dated 31.10.2023, is bad in law as well as further order dated 30.01.2024 is also bad in law.
In response thereof, learned counsel for the Union of India submits that the allegation made against the petitioner is heinous in nature. In the proceeding, the material has come that the petitioner was on contact with the PIO and the material has been available on his mobile for considerable period. He further submits that on the instruction of this Hon’ble Court, a counter-affidavit has been filed vide Annexure-A/1 by which it shall be clear that under what circumstances, the decision for removal of the petitioner from the service has been taken place. He further submits that in the light of Officials Secrets Act, 1923 read with Section 49 of the SSB, Act, 2007 as well as in the light of opinion received from JAG Branch, the said decision was taken.
Counsel further submits that Section 49 of the SSB Act, 2007 read with Rule 62 of the SSB, 2009 clearly indicate that the action taken by the DIG dated 31.10.2023 is completely in accordance with law and, hence, there is no need of any interference in the decision of removal of the petitioner.
After hearing the parties and perusal of records, this Court deems it appropriate to quote those relevant provisions of law, which are necessary for complete adjudication of this case. Section 49 of the Sashastra Seema Bal Act, 2007 reads as under:-
49. Civil offences.- Subject to the
provisions of section 50, any person subject to this Act who at any place in, or beyond, India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section shall be liable to be tried by a Force Court and, on conviction, be punishable as follows, namely:-
(a)if the offence is one which would be punishable under any law in force in India with death, he shall be liable to suffer any punishment, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and
(b)in any other case, he shall be liable to suffer any punishment, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.
Rule 62 of the Sashastra Seema Bal Rules, 2009 reads as under:-
62. Action by a superior authority on receiving an application for convening a Court.-
2(b) the higher authority on receiving the case may exercise any of the powers given in sub-rule (1):
Provided that a superior officer or higher authority before convening a General Force Court or a Petty Force Court shall take the advice of the Judge Attorney-General or an officer detailed for the purpose of the Judge Attorney General:
Provided further that the superior authority or higher authority while convening a Court may reframe the charge sheet on which the accused is to be tried.
Upon bare reading of Section 49 of the SSB, Act, 2007, it is true that power has been vested, but the said power has been vested by a Force Court. Admittedly, upon perusal of order dated 31.10.2023, it transpires that the said order has not been passed in the capacity of a Force Court. Similarly Rule 62(2)(b) of the SSB, Rules, 2009 talks about the higher authority. The word ‘higher authority’ has not been defined in this Act instead thereof, the word ‘superior authority’ has been defined. Herein the present case, the decision of exoneration of the petitioner has been taken by the Deputy Inspector General of Police and if the power has to be exercised under Section 62(2) (b) of the SSB, Rules, 2009 then, the higher officer shall mean any officer higher than the Deputy Inspector General of Police and, hence, considering this aspect that in departmental proceeding, the DIG being the appellate authority has taken decision in favour of the petitioner once, then a DIG holding the same post (but the same person) cannot review its own order.
As such, this Court is of the firm view that order dated 31.10.2023 is the order passed by the same authority who has passed order of exoneration dated 15.05.2023, is bad in law and, hence, order dated 31.10.2023 passed by the learned Dy.Inspector General, Sector Hqrs. SSB Bettiah is hereby set aside and subsequently, the effect of this order by virtue of all letters issued relating to removal and action against the petitioner including the order dated 30.01.2024 passed in appeal/FTR-PTN/23/1350-55 by respondent No.2, all are hereby set aside.
With the aforesaid directions and observations, the present writ petition stands allowed.