Navneet Kumar Singh vs Union Of India & Ors on 22 May, 2026

Calcutta High Court (Appellete Side)

Navneet Kumar Singh vs Union Of India & Ors on 22 May, 2026

                                      1
                  IN THE HIGH COURT AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                          APPELLATE SIDE


Present:

The Hon'ble Justice Ananya Bandyopadhyay



                          W.P.A. 17193 of 2013

                          Navneet Kumar Singh
                                  -Vs-
                          Union of India & Ors.


For the Petitioner                   : Mr. Subhabrata Datta
                                       Mr. Debashis Sarkar

For the Union of India/              : Mr. Avijit Majumdar
Respondents                            Ms. Sarda Sha

Judgment on                          : 22.05.2026

Ananya Bandyopadhyay, J.:-

1. The writ petitioner, a member of the Border Security Force enrolled as a

Constable (General Duty) on October 21, 1999, invokes the jurisdiction of

this Hon’ble Court under Article 226 of the Constitution of India assailing

the legality of the disciplinary proceedings initiated against him while

posted at the 2nd Battalion Headquarters, National Disaster Response

Force, Digberia, District Barasat, West Bengal. The petitioner asserted

this Hon’ble Court possessed territorial jurisdiction over the present lis,

since the entire disciplinary action, including the Court of Inquiry and the

consequential Record of Evidence proceedings, originated within the

territorial limits of this Court and the relevant records continued to

remain in the custody of the respondent authorities stationed at Digberia,

Barasat.

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2. The respondents, being instrumentalities of the Union of India functioning

under the administrative control of the Ministry of Home Affairs, are

stated to be “State” within the meaning of Article 12 of the Constitution

and amenable to the writ jurisdiction of this Hon’ble Court. The petitioner

further contends that allegations of mala fide exercise of power have

specifically been levelled against certain superior officers, necessitating

their impleadment in the proceeding by name.

3. The petitioner places considerable emphasis upon his unblemished

service career extending over more than a decade, during which he is

stated to have rendered dedicated service to the nation and earned several

commendations and awards from the respondent authorities. Against this

backdrop, the petitioner narrates an incident alleged to have occurred on

February 21, 2013 at the official residential quarters occupied by his wife

at the Battalion campus. According to the petitioner, one Sub-Inspector

Gulab Singh, accompanied by several other individuals, forcibly entered

the petitioner’s residential premises in his absence, abused his wife in

filthy language, physically assaulted her and outraged her modesty by

applying criminal force upon her person. It was alleged that when the

petitioner’s wife protested and pleaded for release, she was manhandled,

dragged by her hair and thrown to the ground, causing humiliation and

mental trauma.

4. Upon returning home and learning the incident, the petitioner

immediately approached the local police station and lodged a criminal

complaint against the said Gulab Singh and others, resulting in the

registration of Barasat Police Station Case No. 290 dated February 21,

2013 under Sections 448, 323, 354, 506 and 34 of the Indian Penal Code.
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The petitioner contended that the subsequent departmental proceedings

instituted against him were nothing but a retaliatory mechanism designed

to shield the erring superior officer from criminal prosecution and to

wreak vengeance upon the petitioner for having invoked the ordinary

process of criminal law.

5. It was the petitioner’s case that immediately after the registration of the

criminal case, a one-man Court of Inquiry was constituted by order dated

February 22, 2013 under the authority of the Assistant Commandant of

the unit to investigate allegations purportedly suggesting that the

petitioner had himself assaulted Sub-Inspector Gulab Singh and

thereafter absconded from the campus premises. The petitioner alleged

that the entire inquiry was conceived with a predetermined objective of

fabricating a counter-narrative so as to dilute and neutralise the criminal

allegations already levelled against the superior officer concerned.

6. The petitioner contended the constitution and conduct of the Court of

Inquiry were fundamentally contrary to the provisions of the Border

Security Force Rules, 1969. It was specifically urged that Rule 172 was

violated inasmuch as neither the time nor the place for assembly of the

Court of Inquiry was properly disclosed. More gravely, the petitioner

alleges complete non-compliance with Rule 173 of the Rules of 1969,

since no effective opportunity was afforded to him to remain present

during the proceedings, to cross-examine witnesses, or to place his

defence version before the Inquiry Officer. Though the order constituting

the Court of Inquiry formally recorded that Rule 173(8) would be complied

with, the petitioner asserted such compliance existed only on paper and

stood wholly absent in reality.

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7. The writ petition proceeded to allege that the Court of Inquiry was

conducted entirely in the absence of the petitioner and in patent breach of

the principles of natural justice. Despite the statutory entitlement flowing

from Rule 176 of the Border Security Force Rules, 1969, copies of the

proceedings of the Court of Inquiry were allegedly withheld from the

petitioner. The petitioner contended the denial of such material

documents deprived him of any opportunity to defend himself and

rendered the decision-making process opaque, arbitrary and devoid of

jurisdictional legitimacy.

8. The petitioner further challenged the subsequent Record of Evidence

proceedings initiated pursuant to order dated March 25, 2013. Although

verbally informed about such proceedings, no formal copy of the order

directing Record of Evidence was allegedly furnished to him. The

petitioner contended as many as thirteen prosecution witnesses were

examined, all of whom belonged to the same battalion and functioned

under the command and influence of the respondent authorities. Even the

purportedly independent witnesses and interpreters were stated to be

attached to the same establishment, thereby eroding the independence

and credibility of the process itself. According to the petitioner, favourable

materials supporting his innocence were deliberately excluded from the

record, and the depositions were not faithfully recorded in their entirety.

9. A further grievance has been articulated regarding violation of Rule 49(3)

of the Border Security Force Rules, 1969. The petitioner contended before

calling upon him to make a statement under Rule 48 (3), the respondents

failed to furnish him copies of the abstract of evidence, thereby frustrating

the very object of the procedural safeguards embodied in the statutory
5
framework. The proceedings, according to the petitioner, thus stood

vitiated by procedural impropriety of a serious and incurable nature.

10. The petitioner emphatically asserted the Border Security Force Act, 1968

did not exclude the operation of the foundational principles of natural

justice or the constitutional guarantee of fairness enshrined under Article

14 of the Constitution of India. Yet, according to the petitioner, he was

denied equality of arms, denied access to relevant materials, denied a fair

hearing, and denied a reasonable opportunity to defend himself, while the

prosecution authorities enjoyed unrestricted access to the records and

departmental machinery. Such unequal treatment, it is contended,

constitutes a direct infraction of the constitutional mandate of fairness

and equal protection of laws.

11. The petitioner also assailed the decision remanding him to face trial

before the Summary Security Force Court pursuant to communication

dated May 6, 2013, received by him on May 9, 2013. Although the

communication enclosed a copy of the Record of Evidence and indicated

that the petitioner might seek assistance from a legal practitioner, the

petitioner contended the foundational illegality already infecting the Court

of Inquiry and Record of Evidence proceedings rendered the consequential

decision to initiate trial wholly unsustainable in law.

12. It had lastly been contended that the petitioner possessed no equally

efficacious alternative remedy capable of addressing the immediacy and

gravity of the prejudice caused to him. The writ petition asserted the

existence of a strong prima facie case, overwhelming balance of

convenience in favour of the petitioner, and the likelihood of irreparable

injury in the event judicial protection was denied. Urgency is pleaded on
6
the ground that the petitioner had already been orally informed regarding

the proposed date of trial before the Summary Security Force Court. The

petitioner accordingly seeks intervention of this Hon’ble Court for setting

aside the impugned proceedings as being procedurally ultra vires,

arbitrary, mala fide, constitutionally infirm and unsustainable in the eye

of law.

13. The learned Advocate appearing on behalf of the writ petitioner addressed

a comprehensive challenge to the legality of the disciplinary architecture

erected by the respondent authorities, contending that the entire

decision-making process, commencing from the constitution of the Court

of Inquiry and culminating in the order remanding the petitioner to face

trial before the Summary Security Force Court, stood irretrievably vitiated

by procedural impropriety, statutory infraction, mala fide exercise of

authority and constitutional unfairness.

14. At the threshold, learned counsel assailed the order bearing No.

ESTT/COI/2BN NDRF/13/3292-94 dated February 22, 2013 by which

the Court of Inquiry came to be constituted. It was contended that the

said order was issued in patent derogation of Rule 172 of the Border

Security Force Rules, 1969, since neither the time nor the place of

assembly of the Court of Inquiry had been specified therein. Such

omission, according to the petitioner, was not a mere technical lapse but

struck at the root of the jurisdictional validity of the proceeding itself,

thereby rendering the very constitution of the Court of Inquiry

unsustainable in the eye of law.

15. The Learned Advocate further submitted the procedure prescribed under

Rule 173 of the Rules of 1969 was completely disregarded during the
7
conduct of the Court of Inquiry. Though the impugned order formally

recorded that Rule 173(8) would be complied with, the petitioner was, in

reality, denied any opportunity to place his defence, explain the factual

circumstances, or participate in the proceedings. It was urged that the

inquiry was conducted entirely in the absence of the petitioner depriving

him of the right to cross-examine witnesses whose statements were

subsequently relied upon against him. Such exclusion from participation,

according to the petitioner, constituted a complete departure from the

mandatory statutory safeguards embodied in the Rules and rendered the

decision-making process procedurally ultra vires, opaque, arbitrary, mala

fide and wholly devoid of jurisdictional legitimacy.

16. The Learned Counsel emphasised that Rule 176 of the Border Security

Force Rules conferred upon the petitioner a statutory entitlement to

obtain copies of the proceedings of the Court of Inquiry. Yet, despite

repeated requests, no copy of such proceedings was supplied to him. The

withholding of the records, it was argued, disabled the petitioner from

effectively preparing his defence and demonstrated a culpable omission on

the part of the respondent authorities, tainted by unfairness and lack of

procedural transparency.

17. The petitioner also challenged the subsequent order dated March 25,

2013 bearing No. Estt/ROE/NKS/2Bn/13/5206-11 directing initiation of

Record of Evidence proceedings. Learned Counsel for the petitioner

submitted the said order rested entirely upon the findings of the Court of

Inquiry, which itself suffered from foundational illegality and absence of

jurisdiction. Consequently, the Record of Evidence proceeding, being
8
derivative in character, inherited the same procedural infirmities and

could not survive independent judicial scrutiny.

18. On the merits of the Record of Evidence proceeding, Learned Counsel for

the petitioner pointed out thirteen prosecution witnesses had been

examined, all belonging to the 2nd Battalion, National Disaster Response

Force and functioning under the administrative command of respondent

no.6. Even the purported independent witnesses and interpreters were

attached to the same battalion establishment. Accordingly, no witness

functioning under the direct control of the commanding authority could

reasonably be expected to depose with independence in a proceeding

instituted at the instance of that very authority. It was further alleged the

depositions were not discernibly recorded in toto and that materials

favourable to the petitioner had deliberately been excluded from the

proceedings. The entire process, therefore, was characterised as lacking

institutional neutrality and bearing traces of mala fide exercise of power.

19. The Learned Counsel as aforesaid further contended before calling upon

the petitioner to place a statement under Rule 48(3) as aforesaid, the

respondents failed to furnish him with copies of the abstract of evidence

as mandated under Rule 49(3) of the Border Security Force Rules, 1969.

The denial of such material documents frustrated the purpose underlying

the procedural safeguards contemplated by the statutory framework and

rendered the Record of Evidence proceedings fundamentally defective. The

resultant findings, according to the petitioner, were therefore perverse,

procedurally infirm and incapable of being sustained in law.

20. The communication dated May 6, 2013 remanding the petitioner to face

trial before the Summary Security Force Court was also assailed as being
9
illegal and non est in law. Learned Counsel for the petitioner argued the

decision to remand the petitioner for trial had been founded entirely upon

proceedings already vitiated by illegality and procedural impropriety.

Since the very substratum upon which the order rested stood

contaminated by jurisdictional defects, every consequential action flowing

therefrom necessarily collapsed.

21. It was further urged although the Border Security Force Act, 1968 might

constitute a self-contained statutory code governing disciplinary

proceedings within the Force, the Act nowhere excluded the applicability

of the foundational principles of natural justice and constitutional

fairness. It was contended throughout the disciplinary process, the

petitioner was denied an adequate opportunity of hearing, denied access

to the abstract of evidence, and denied equality of procedural treatment

vis-à-vis the departmental authorities. While the prosecution authorities

enjoyed unrestricted access to the records and depositions, the petitioner

was compelled to defend himself in ignorance of the material relied upon

against him. Such unequal treatment, according to the Learned Counsel

for the petitioner, amounted to a direct infraction of Article 14 of the

Constitution of India.

22. The Learned Advocate for the petitioner also invited attention to the

earlier “Orders” passed by this Hon’ble Court during the pendency of the

writ proceeding. It was submitted that by Order dated June 27, 2013, this

Hon’ble Court had called upon the respondents to explain why the

petitioner’s choice of a “friend of accused” to assist him in the trial had

not been accepted and another individual, namely D.S. Kanchan, had

instead been imposed upon him. Despite such judicial query, no
10
satisfactory explanation was furnished by the respondents in their

affidavit-in-opposition. Subsequently, by order dated November 27, 2013,

this Hon’ble Court directed that the petitioner be afforded full opportunity

to represent his case before the Court, thereby acknowledging the

apparent infirmities surrounding the disciplinary process. It was further

submitted that by virtue of the interim protection granted by this Hon’ble

Court, the petitioner had been able to continue in employment and

sustain his livelihood.

23. The Learned Advocate for the petitioner laid particular emphasis upon

Rule 157 of the Border Security Force Rules, 1969, which expressedly

permitted an accused person to take assistance of “any person”, including

a Legal Practitioner. Learned Counsel for the petitioner further argued

despite the breadth of the statutory provision, the petitioner’s chosen

representative was arbitrarily denied acceptance, thereby further eroding

the fairness of the proceedings.

24. Reliance was placed upon several judicial pronouncements in support of

the petitioner’s contentions, with specific reference to Dr. Ravichandran

B.R. vs. Union of India & Ors. reported in 2018 SCC Online Tri 287 and

Girnar Traders vs. State of Maharashtra & Ors. reported in (2011) 3 SCC

1 to contend that even within a self-contained statutory framework,

procedural safeguards and statutory compliance could not be dispensed

with. Reliance was also placed upon Balwinder Singh vs. Union of India &

Ors. reported in 2010 SCC Online Del 2209, wherein the legislative intent

underlying procedural fairness in disciplinary proceedings was elaborately

considered. Further reliance was placed upon the celebrated decision in

Ranjit Thakur vs. Union of India & Ors. reported in (1987) 4 SCC 611 on
11
the proposition that disciplinary proceedings within the armed forces

remain subject to the discipline of fairness and procedural

reasonableness.

25. The Learned Advocate for the petitioner additionally criticised the written

notes of argument supplied by the respondents on the ground that they

referred to factual materials and pages allegedly not forming part of the

pleadings or records before this Hon’ble Court. It was argued that several

assertions advanced by the respondents lacked foundational support in

the affidavit-in-opposition and therefore could not legitimately be relied

upon in resisting the writ petition.

26. The Learned Counsel as aforesaid also sought to distinguish the

judgments relied upon by the respondents concerning the maintainability

of writ petitions in the presence of alternative statutory remedies. It was

contended that even the decision reported in (2021) 6 SCC 771 recognises

an exception where violation of natural justice is demonstrably

established. Since the present writ petition was founded upon grave

procedural irregularities and denial of natural justice from the inception

of the disciplinary proceedings, the existence of an alternative remedy

could not operate as a bar to the exercise of writ jurisdiction.

27. The submissions ultimately culminated in the plea that the cumulative

procedural infirmities, statutory violations, denial of fair hearing,

suppression of relevant materials and mala fide conduct attributable to

the respondent authorities had irreversibly contaminated the disciplinary

process. Consequently, the impugned proceedings, together with all

consequential actions taken pursuant thereto, were urged to be quashed
12
and set aside as unconstitutional, procedurally ultra vires and

unsustainable in the eye of law.

28. The Learned Advocate representing the respondents advanced a

comprehensive and emphatic defence of the disciplinary action initiated

against the writ petitioner, contending that every stage of the proceedings

had been undertaken in strict conformity with the Border Security Force

Act, 1968 and the Border Security Force Rules, 1969 and that the

allegations of arbitrariness, mala fide conduct and denial of natural

justice were wholly unfounded, exaggerated and contrary to the

contemporaneous records.

29. At the threshold, the Learned Counsel submitted the writ petitioner had

entered service as a Constable (General Duty) and was posted with the

2nd Battalion of the National Disaster Response Force at Digberia.

Though functioning under the organisational framework of the National

Disaster Response Force, the Battalion was manned by personnel of the

Border Security Force and, consequently, remained governed by the

provisions of the Border Security Force Act, 1968 and the Rules framed

thereunder.

30. The respondents traced the origin of the disciplinary action to an incident

dated February 20, 2013. It was submitted that with a view to maintain

discipline amongst the troops of the 2nd Battalion NDRF, Inspector Vinod

Choudhary, a Senior Subordinate Officer, directed Sub-Inspector Gulab

Singh and Sub-Inspector Raghubir Singh to keep vigil over the conduct

and activities of personnel visiting the local market areas adjoining the

Battalion campus.

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31. In pursuance of such direction, Sub-Inspector Gulab Singh submitted a

detailed report dated February 20, 2013 alleging that at approximately

18:15 hours the petitioner, who was then on fifteen days’ casual leave

from February 18, 2013 to March 8, 2013 and residing outside the

campus, had passed obscene and indecent remarks directed towards four

girls near the camp premises. Upon receipt of the said report, the

Commandant of the 2nd Battalion NDRF directed a discreet inquiry to be

conducted by Shri Abhay Kumar, Deputy Commandant, by order dated

February 21, 2013 for the purpose of ascertaining the factual position

relating to the reported misconduct.

32. The Learned Counsel for the respondents further submitted on the

evening of February 21, 2013, Sub-Inspector Gulab Singh informed the

Senior Subordinate Officer and the Deputy Commandant telephonically

that the petitioner had entered Room No. 65 of the Subordinate Officers’

Mess where the said officer was staying and had physically assaulted him

while simultaneously abusing and threatening him. It was alleged that

immediately after the incident the petitioner fled from the campus. Upon

receipt of such information, Shri Mukesh Kumar Verma, Deputy

Commandant and Adjutant of the Battalion, directed a team of six

constables to proceed to the petitioner’s residence situated outside the

campus. However, upon arrival, the petitioner’s wife informed the visiting

officials that the petitioner was absent from the residence. Thereafter, the

Commandant ordered constitution of a Court of Inquiry vide order bearing

No. Estt/COI/2BnNDRF/13/3292-94 dated February 22, 2013 to

investigate the circumstances under which the petitioner allegedly
14
trespassed into the Subordinate Officers’ Mess and assaulted Sub-

Inspector Gulab Singh.

33. The Learned Advocate for the respondents simultaneously referred to the

criminal complaint lodged by the petitioner. It was submitted at about

21:40 hours on February 21, 2013, Madhyamgram Police Station

intimated the Battalion authorities that the petitioner had lodged a

complaint at Barasat Police Station against Sub-Inspector Gulab Singh

alleging outraging of the modesty of the petitioner’s wife. The said case

was registered under Sections 448, 323, 354, 506 and 34 of the Indian

Penal Code. However, after completion of investigation, the police

authorities submitted a closure report before the learned Additional Chief

Judicial Magistrate, Barasat on the ground of “mistake of fact”. It was

contended the said development substantially discredited the retaliatory

allegations levelled by the petitioner against the superior officer.

34. It was thereafter submitted during the course of the Court of Inquiry

proceedings, statements of witnesses were duly recorded and the

petitioner was afforded opportunities contemplated under Rule 173(8) of

the Border Security Force Rules, 1969. Upon culmination of the inquiry,

the competent authority arrived at a finding that the petitioner had

threatened and assaulted Sub-Inspector Gulab Singh on February 21,

2013 within Room No. 65 of the Subordinate Officers’ Mess. Since such

conduct constituted use of criminal force against a superior officer,

disciplinary action was directed to be initiated against the petitioner for

commission of an offence punishable under Section 20(a) of the Border

Security Force Act, 1968.

15

35. It was further submitted formal disciplinary action was thereafter initiated

by the Commandant after personally hearing the petitioner under Rule 45

of the Rules of 1969 on March 25, 2013. Following such hearing, the

petitioner was remanded for preparation of Record of Evidence under Rule

48 of the Rules by order bearing No. Estt/ROE(NKS)/2Bn/12/5206 dated

March 25, 2013. The Learned Counsel for the respondents laid particular

emphasis upon the submission that two subordinate officers wholly

unconnected with the incident were specifically detailed to act as

independent witnesses during the Record of Evidence proceedings so as to

maintain impartiality and procedural sanctity.

36. The Learned Advocate for the respondents categorically disputed the

petitioner’s allegation that he had been excluded from participation in the

proceedings. According to the respondents, the Record of Evidence was

prepared in the petitioner’s presence and he actively participated therein.

It was submitted that he was afforded full opportunity to cross-examine

prosecution witnesses, produce defence witnesses and place statements

in his defence in accordance with Rule 48 of the Rules. Upon completion

of the Record of Evidence, the Commandant, exercising discretion under

Rule 51 and upon due application of mind to the materials collected,

decided that the disciplinary case ought to be adjudicated by Summary

Security Force Court.

37. The said decision was communicated to the petitioner by letter dated May

6, 2013 bearing No. Estt/SSFC(NKS)/2Bn/13/7343 together with copies

of the Record of Evidence and charge-sheet in order to facilitate

preparation of defence under Rule 63 of the Border Security Force Rules,

1969. Learned Counsel as aforesaid further submitted the petitioner was
16
specifically informed regarding his entitlement under Rule 157 to

nominate any person, including a legal practitioner, to act as “Friend of

Accused”.

38. The Learned Advocate representing the respondents submitted the

petitioner thereafter filed applications dated May 7 and May 8, 2013

expressing his intention to engage a legal practitioner and sought five

days’ earned leave for the said purpose. However, since no effective

nomination for appointment of “Friend of Accused” was received from the

petitioner till June 6, 2013, the Commandant, in the interest of justice

and fairness, detailed Shri D.S. Kanchan, Deputy Commandant, to act as

“Friend of Accused”. Though the order was served upon the petitioner on

proper receipt, he allegedly refused to accept the same in the presence of

colleagues and other officials.

39. The Learned Counsel as aforesaid then adverted to the procedural history

before this Hon’ble Court. It was submitted that the petitioner instituted

the writ petition challenging the disciplinary proceedings on the ground of

alleged procedural improprieties and denial of opportunity. By order dated

June 7, 2013 this Hon’ble Court granted an ad interim order restraining

further continuation of the Summary Security Force Court trial without

leave of the Court. Subsequently, by order dated November 27, 2013

passed by the Hon’ble Justice Dipankar Datta, liberty was granted to the

respondents to proceed with the Summary Security Force Court trial and

pass final orders in accordance with law, though such orders were

directed not to be given effect without obtaining leave of the Court.

40. Acting upon the liberty so granted, the respondents submitted that the

Summary Security Force Court trial commenced on February 18, 2014
17
and concluded on February 22, 2014 strictly in accordance with Chapter

XI of the Border Security Force Rules, 1969. During the course of the

trial, all opportunities were afforded to the petitioner to defend himself. He

was permitted to cross-examine prosecution witnesses, produce defence

witnesses and depose in his defence. The respondents further pointed out

that by letter dated February 16, 2014 the petitioner was ultimately

provided the officer whom he had nominated to act as “Friend of

Accused”.

41. Upon due consideration of the evidence on record, the Summary Security

Force Court found the petitioner guilty of the charge under Section 20(a)

of the Border Security Force Act, 1968 and imposed the sentence of

dismissal from service. However, in respectful compliance with the interim

order passed by this Hon’ble Court on November 27, 2013, the final order

had not been given effect to nor had the sentence been promulgated. The

respondents consequently filed C.A.N. No. 3003 of 2018 seeking vacation

of the interim protection so that the sentence could be promulgated in

terms of Rule 159 of the Border Security Force Rules, 1969.

42. The Learned Advocate for the respondents thereafter proceeded to answer

each of the procedural objections raised by the petitioner.

43. In relation to the alleged violation of Rule 172, it was contended that the

Court of Inquiry records themselves demonstrated compliance with Rules

171 and 172. Reference was drawn to pages 85 and 91 of the proceedings.

It was further submitted that the petitioner’s name appeared in the list of

witnesses at page 79 of the Court of Inquiry proceedings, thereby

disproving his assertion that the assembly order had never been

communicated to him. Learned Counsel further stressed a Court of
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Enquiry was fundamentally a fact-finding exercise and that the petitioner

had not initially been arraigned as an accused. Only upon emergence of

incriminating material during the inquiry did invocation of Rule 173(8)

become necessary.

44. In response to the allegation that the petitioner had not been afforded

opportunity to cross-examine witnesses or adduce defence evidence, the

Learned Counsel as aforesaid referred to pages 28 and 35 of the inquiry

proceedings to demonstrate that the petitioner had indeed been examined

as witness No. 27 and had been specifically afforded opportunity to cross-

examine witnesses, file statements in defence and summon defence

witnesses. It was submitted that the petitioner declined to append his

signature upon the proceedings and such refusal was duly recorded by

the Presiding Officer in the presence of independent witnesses.

45. As regards Rule 176 concerning supply of copies of Court of Inquiry

proceedings, the respondents submitted though the petitioner was

statutorily entitled to seek copies of the proceedings, he had never

submitted any formal application before the competent authority seeking

such documents. Consequently, the grievance that copies had been

withheld was characterised as an afterthought unsupported by any

documentary material.

46. With regard to Rule 157 and the grievance concerning “Friend of

Accused”, the Learned Counsel for the respondents submitted the

petitioner had been specifically informed regarding his right to nominate

any person, including a legal practitioner, to assist him during trial. Since

the petitioner failed to cite any effective nomination within the stipulated

period, the Commandant appropriately detailed Shri D.S. Kanchan as
19
“Friend of Accused” so as to ensure fairness of the proceedings. It was

further contended the petitioner was deliberately attempting to mislead

the Court by suppressing the fact that he was eventually provided the

exact officer whom he had nominated.

47. The respondents then raised a preliminary objection regarding

maintainability of the writ petition on the ground of existence of an

efficacious alternative remedy under Section 117 of the Border Security

Force Act, 1968 against the findings and sentence of the Security Force

Court. Placing reliance upon the decision of the Hon’ble Supreme Court in

Radha Krishan Industries vs. State of Himachal Pradesh reported in

(2021) 6 SCC 771, the Learned Counsel as aforesaid submitted that the

extraordinary jurisdiction under Article 226 ought ordinarily not to be

exercised where a statutory remedy exists. Reference was specifically

made to paragraphs 27.2, 27.3 and 27.5 of the said judgment wherein the

Apex Court reiterated that exhaustion of statutory remedies constitutes a

rule of policy, convenience and judicial discipline, save in exceptional

situations involving violation of natural justice, absence of jurisdiction or

infringement of fundamental rights.

48. It was further argued that none of the recognised exceptions applied to

the present case, since there had been no violation whatsoever of the

principles of natural justice during any stage of the proceedings. Rather,

according to the respondents, the petitioner had been afforded repeated

and reasonable opportunities to defend himself.

49. It was also contended the reliefs sought in the writ petition had

substantially become infructuous. It was submitted that the prayers in

the writ petition were directed principally against the initiation of the
20
Court of Enquiry, Record of Evidence proceedings and the charge-sheet

dated May 6, 2013. However, subsequent to the liberty granted by this

Hon’ble Court on November 27, 2013, the disciplinary proceedings had

culminated in a final sentence passed by the Summary Security Force

Court. Since the petitioner had not specifically challenged the final

sentence, the writ petition could no longer survive in its original form.

50. Reliance was further placed upon the judgment of the Hon’ble Supreme

Court in Bharat Singh & Others vs. State of Haryana & Others reported in

(1988) 4 SCC 534 for the proposition that questions of fact must be

specifically pleaded and supported by evidence in the writ pleadings.

Learned Counsel as aforesaid argued many of the allegations advanced by

the petitioner lacked foundational pleadings and supporting materials and

were therefore liable to be discarded.

51. The Learned Advocate for the respondents also sought to portray the

petitioner as a habitual offender lacking discipline expected of a member

of a uniformed force. It was submitted that the petitioner had earlier been

subjected to summary trials on several occasions for offences including

absence without leave, insubordination and obstruction. Such

antecedents, according to the respondents, disclosed a pattern of

incorrigible conduct inconsistent with the discipline and ethos of the

Force. Learned Counsel further asserted that persons exhibiting such

repeated misconduct posed a serious threat to morale and discipline

within the organisation and did not deserve to be retained in service.

52. Ultimately, the Learned Advocate representing the respondents urged that

the entire disciplinary mechanism — beginning from the Court of Inquiry,

followed by the Record of Evidence proceedings and culminating in the
21
Summary Security Force Court trial — had been conducted in a fair,

transparent and statutorily compliant manner. According to the

respondents, there had not been a single instance of violation of the

principles of natural justice. The allegations levelled by the petitioner were

described as false, frivolous, baseless and calculated to mislead the Court.

It was therefore fervently prayed that the writ petition be dismissed and

the respondents be permitted to give effect to the sentence imposed by the

Summary Security Force Court by vacating the interim protection

operating in favour of the petitioner under Rule 159 of the Border Security

Force Rules, 1969.

53. In the conspectus of the instant writ petition, the provisions to which the

respondent authorities had been subservient to, require basic

interpretation for determining the intent and the purport of the

application of the same as enumerated below in sequence:-

i. “Section 20. Striking or threatening superior officers.–Any
person subject to this Act who commits any of the following offences,
that is to say,–

(a) uses criminal force to or assaults his superior officer; or

(b) …….

(c) ….

shall, on conviction by a Security Force Court,–
(A) if such officer is at the time in the execution of his office or, if the
offence is committed on active duty, be liable to suffer imprisonment
for a term which may extend to fourteen years or such less
punishment as is in this Act mentioned; and
(B) in other cases, be liable to suffer imprisonment for a term which
may extend to ten years or such less punishment as is in this Act
mentioned:

Provided that in the case of any offence specified in clause (c), the
imprisonment shall not exceed five years.

22

ii. Section 117. Remedy against order, finding or sentence of
Security Force Court.–

(1) Any person subject to this Act who considers himself aggrieved by
any order passed by any Security Force Court may present a petition
to the officer or authority empowered to confirm any finding or
sentence of such Security Force Court, and the confirming authority
may take such steps as may be considered necessary to satisfy itself
as to the correctness, legality or propriety of the order passed or as to
the regularity of any proceeding to which the order relates.
(2) Any person subject to this Act who considers himself aggrieved by
a finding or sentence of any Security Force Court which has been
confirmed, may present a petition to the Central Government, the
Director-General, or any prescribed officer superior in command to the
one who confirmed such finding or sentence, and the Central
Government, the Director-General, or the prescribed officer, as the
case may be, may pass such order thereon as it or he thinks fit.
iii. Rule 48. Record of evidence.-

(1) …….

(2) ……

(3) After all the witnesses against the accused have been examined,
he shall be cautioned in the following terms; “You may make a
statement if you wish to do so, you are not bound to make one and
whatever you state shall be taken down in writing and may be used
in evidence.” After having been cautioned in the aforesaid manner
whatever the accused states shall be taken down in writing.

iv. Rule 49. Abstract of evidence.-

(1)

(2)(a) …….

(i) …….

(3) A copy of the abstract of evidence shall be given by the officer
making the same to the accused and the accused shall be given an
opportunity to make a statement if he so desires after he has been
cautioned in the manner laid down in sub-rule (3) of Rule 48:
23

Provided that the accused shall be given such time as may be
reasonable in the circumstances but in no case less than twenty four
hours after receiving the abstract of evidence to make his statement.
v. Rule 157. Friend of the accused.- During a trial at a
SummarySecurity Force Court an accused may take the assistance of
any person, including a legal practitioner as he may consider
necessary.

Provided that such person shall not examine or cross examine
witnesses or address the Court.

vi. Rule 159. Promulgation.- The sentence of a Summary Security Force
Court shall be promulgated in the manner usual in the service, at the
earliest opportunity after it has been pronounced and shall subject to
the provisions of the Act be carried out without delay after
promulgation
vii. Rule 171. Assembly.- A court of inquiry may be assembled by order of
a Commandant or any officer or authority superior to the
Commandant.

viii. Rule 172. Assembly Order.- The order assembling the court of inquiry
shall state the composition of the court, the time and place for its
assembly and clearly state the matters which the court will
investigate. It will also provide for the administrative requirements of
the Court.

ix. Rule 173. Procedure of Courts of Inquiry.-

(1) The proceedings of a court of inquiry shall not be open to the
public. Only such persons may attend the proceedings as are
permitted by the court to do so.

(2) The evidence of all witnesses shall be taken on oath or
affirmation.

(3) Evidence given by witnesses shall be recorded in narrative form
unless the court considers that any questions and answers may be
recorded as such.

(4) The court may take into consideration any documents even though
they are not formally proved.

(5) The court may ask witnesses any questions, in any form, that
they consider necessary to elicit the truth and may take into
24
consideration any evidence, whether the same is admissible under
the Indian Evidence At, 1872 (1 of 1872) or not.

(6) No counsel or legal practitioner shall be permitted to appear before
a court of inquiry.

(7) Provisions of section 89 shall apply for procuring the attendance of
witnesses before the court of inquiry.

(8) Before giving an opinion against any person subject to the Act, the
court will afford that person the opportunity to know all that has been
stated against him, cross examine any witnesses who have given
evidence against him, and make a statement and call witnesses in
his defence.

(9) The answers given by a witness to any question asked before the
court shall not be admissible against such a witness on any charge
at any subsequent occasion except a charge of giving false evidence
before such court.

x. Rule 176. Copies of Court of Inquiry Proceedings.- A person subject
to the Act against whom the court of inquiry has given an opinion or
who is being tried by a Security Force Court on a charge relating to
matter investigated by the court of inquiry, shall be entitled to copies
of the proceedings of the court of inquiry unless the Director General
orders otherwise.”

54. The writ petition, viewed in its proper constitutional setting, does not

merely invite judicial scrutiny of a disciplinary proceeding conducted

within a uniformed force. It compels the Court to balance two equally

weighty considerations which frequently converge in service jurisprudence

involving disciplined organisations — the imperative necessity of

preserving institutional discipline on one hand, and the constitutional

obligation to ensure fairness, proportionality and measured exercise of

statutory power on the other. He became embroiled in a sequence of

incidents commencing on February 20, 2023.

25

55. The petitioner was serving as a Constable (General Duty) in the 2nd

Battalion of the National Disaster Response Force stationed at Digberia,

functioning under the administrative command structure of the Border

Security Force and consequently governed by the provisions of the Border

Security Force Act, 1968 and the Rules framed thereunder.

56. The sequence of events commenced on 20th February, 2013 when,

according to the respondents, instructions were issued by the Senior

Subordinate Officer to maintain surveillance over the conduct and

movement of personnel frequenting the local market areas adjoining the

Battalion campus. It was thereafter reported by Sub-Inspector Gulab

Singh that the petitioner, who at the relevant point of time was on casual

leave and residing outside the camp premises, had allegedly passed

obscene and indecent remarks towards certain girls outside the campus

area.

57. The matter, however, assumed far greater seriousness on the following

day when allegations surfaced that the petitioner had entered the

Subordinate Officers’ Mess, confronted Sub-Inspector Gulab Singh inside

Room No. 65, physically assaulted him, abused him in offensive language

and threatened him. The respondents portray the incident as a grave act

of insubordination involving use of criminal force against a superior

officer — an act striking directly at the discipline and command structure

of the Force.

58. The petitioner, on the other hand, sought to place the occurrence within

an entirely different factual background by drawing attention to a

criminal complaint lodged by him alleging misconduct towards his wife on

the part of the said superior officer. Though the investigating authorities
26
eventually submitted a closure report in the said criminal case, the

existence of such allegations could not altogether be erased from the

surrounding factual circumstances in which the altercation took place.

59. The respondents thereafter initiated a discreet inquiry, followed by a

Court of Inquiry, preparation of Record of Evidence and ultimately a

Summary Security Force Court trial under the provisions of the Border

Security Force Act, 1968 and the Rules of 1969. The disciplinary process

culminated in a finding of guilt under Section 20(a) of the Border Security

Force Act for use of criminal force against a superior officer and the

sentence imposed was dismissal from service.

60. The petitioner assailed the disciplinary action on several grounds. It had

been argued that the statutory safeguards embodied in the BSF Rules

were not faithfully observed; that copies of proceedings were not

adequately furnished; that effective opportunity to cross-examine

witnesses and produce defence evidence was illusory; that the petitioner

was not initially treated as an accused during the Court of Inquiry despite

the proceedings gradually assuming an accusatory character; and that

the proceedings were conducted in a manner inconsistent with the

principles of natural justice.

61. The respondents, with equal emphasis, contend that every procedural

requirement contemplated under the statutory framework stood complied

with. According to them, the petitioner participated in the proceedings,

was afforded opportunities to cross-examine witnesses, was informed

regarding his right to engage a “Friend of Accused”, and thereafter fully

participated in the SSFC trial conducted pursuant to liberty granted

earlier by this Hon’ble Court. The respondents further contend that a
27
member of a disciplined force who assaults a superior officer cannot seek

equitable indulgence from a Constitutional Court.

62. At the outset, it becomes necessary to delineate the limits of judicial

review in matters arising out of departmental and disciplinary

adjudication. The jurisdiction of the High Court under Article 226 of the

Constitution does not constitute an appellate forum over findings

rendered by disciplinary authorities. Re-appreciation of evidence as if

sitting in appeal, substitution of factual conclusions merely because

another view may appear plausible, or microscopic dissection of

departmental records for inconsequential irregularities, do not ordinarily

fall within the province of constitutional review.

63. Interference becomes warranted only where the decision-making process

stands vitiated by patent procedural illegality, manifest perversity,

violation of natural justice, absence of jurisdiction, mala fide exercise of

power or where the punishment imposed shocks the conscience of the

Court by reason of its glaring disproportionality to the misconduct

established.

64. This restraint assumes heightened significance in matters concerning

armed and paramilitary organisations. Discipline within such forces

cannot be approached as an abstract administrative expectation; it forms

the structural foundation upon which operational efficiency, collective

command and institutional integrity rest. An act involving physical

assault upon a superior officer has ramifications extending beyond a

private quarrel between two individuals. It affects morale, weakens

hierarchical discipline and threatens the command structure

indispensable to the functioning of such organisations.
28

65. Thus limitation upon judicial intervention assumes even greater

significance in cases involving members of armed or paramilitary forces

where discipline constitutes the very structural foundation upon which

institutional efficacy rests. A force entrusted with matters encompassing

national safety, emergency response and operational command cannot

function upon fractured discipline or diminished respect for hierarchy.

Courts have repeatedly recognised that misconduct involving

insubordination or assault upon superior officers cannot be approached

with the same degree of leniency applicable to ordinary civil employment.

66. Yet, the doctrine of institutional discipline cannot eclipse the

constitutional mandate that punishment must retain rational proportion

to the nature, context and cumulative circumstances of the misconduct

proved. The authority to punish, though wide, is not unbridled.

Administrative discretion does not acquire immunity merely because it

operates within a disciplined force. The doctrine of proportionality, now

firmly embedded within Indian administrative law, obligates the Court to

examine whether the punishment imposed bears a reasonable nexus with

the gravity of the misconduct and whether the disciplinary authority has

maintained a balanced and judicious approach while inflicting the

ultimate civil consequence of dismissal from service. Statutory power,

even within a disciplined force, must retain fidelity to fairness, reason and

proportionality. The doctrine of proportionality constitutes an inseparable

component of modern administrative law and obligates the Court to

examine whether the punishment inflicted maintains a rational

relationship with the nature of misconduct proved.

29

67. Upon comprehensive assessment of the rival submissions and the

materials placed before the Court, this Court finds no sufficient reason to

invalidate the disciplinary proceedings in its entirety.

68. The records reveal that a Court of Inquiry was convened; statements of

witnesses were recorded; the petitioner participated in the proceedings;

opportunities were afforded to cross-examine witnesses and adduce

defence evidence; Record of Evidence was prepared in terms of the Rules;

the petitioner was informed regarding his entitlement to nominate a

“Friend of Accused”; and thereafter the Summary Security Force Court

trial proceeded pursuant to liberty granted earlier by this Hon’ble Court.

The contention of total denial of opportunity does not appear borne out

from the records placed before the Court.

69. The respondents have also satisfactorily demonstrated that the petitioner

was aware of the proceedings at every material stage. Merely because the

petitioner disputes the adequacy or efficacy of the opportunities extended

to him cannot automatically render the entire process void. Constitutional

review concerns itself not with perfection of procedure but with fairness of

procedure.

70. Certain procedural objections raised by the petitioner appear to concern

irregularities relating to supply of copies or alleged inadequacy of

opportunities. However, the law is equally settled that every procedural

deviation does not automatically vitiate disciplinary proceedings. Judicial

review proceeds upon the doctrine of prejudice. Unless it is demonstrated

that the alleged irregularity occasioned substantial failure of justice or

effectively deprived the delinquent employee of a meaningful defence, the

entire proceeding cannot be annulled merely upon technical objections.
30
The materials on record do not disclose such overwhelming procedural

unfairness as would justify complete nullification of the proceedings.

71. Equally unconvincing is the submission that the proceedings stood

vitiated merely because copies of certain documents were allegedly not

furnished. The petitioner has been unable to demonstrate any substantial

prejudice occasioned thereby. Judicial review does not invalidate

disciplinary proceedings for technical omissions unless failure of justice is

demonstrably established. The findings of guilt recorded by the

disciplinary authority and the Summary Security Force Court cannot be

characterised as wholly unsupported by evidence. The respondents relied

upon oral testimonies and contemporaneous materials indicating that the

petitioner had entered the Mess premises and physically assaulted the

superior officer. The writ court cannot re-evaluate the evidentiary

sufficiency as though exercising criminal appellate jurisdiction over a

conviction. This Court, exercising writ jurisdiction, cannot substitute its

own appreciation of evidence merely because another factual

interpretation may also be conceivable.

72. Nevertheless, the matter does not conclude with affirmation of the finding

of guilt. The true constitutional concern in the present proceedings arises

from the nature and severity of the punishment imposed.

73. The Hon’ble Supreme Court, in the case of Punjab &Sind Bank vs. Raj

Kumar1, has made the following observations: –

“7. In light of the facts and circumstances of the present case, we are
reminded of the consistent line of decisions of this Court delineating
the circumstances in which judicial interference is warranted in

1
2026 INSC 313
31
matters concerning imposition of punishment by disciplinary
authorities.

8. We consider it apt to note the relevant passages from a few of these
decisions, hereunder:

a. Bhagat Ram v. State of Himachal Pradesh MANU/SC/0322/1983 :
(1983) 2 SCC 442:

15….It is equally true that the penalty imposed must be commensurate
with the gravity of the misconduct, and that any penalty
disproportionate to the gravity of the misconduct would be violative of
Article 14 of the Constitution….

b. Ranjit Thakur v. Union of India MANU/SC/0691/1987
:1987:INSC:285 : (1987) 4 SCC 611:

25. Judicial review generally speaking, is not directed against a
decision, but is directed against the “decision-making process”. The
question of the choice and quantum of punishment is within the
jurisdiction and discretion of the court-martial. But the sentence has to
suit the offence and the offender. It should not be vindictive or unduly
harsh. It should not be so disproportionate to the offence as to shock
the conscience and amount in itself to conclusive evidence of bias. The
doctrine of proportionality, as part of the concept of judicial review,
would ensure that even on an aspect which is, otherwise, within the
exclusive province of the court-martial, if the decision of the court even
as to sentence is an outrageous defiance of logic, then the sentence
would not be immune from correction. Irrationality and perversity are
recognised grounds of judicial review….

(emphasis ours)

c. B.C. Chaturvedi v. Union of India MANU/SC/0118/1996
:1995:INSC:661 : (1995) 6 SCC 749 (three-Judge Bench):

18. A review of the above legal position would establish that the
disciplinary authority, and on appeal the appellate authority, being
fact-finding authorities have exclusive power to consider the evidence
32
with a view to maintain discipline. They are invested with the
discretion to impose appropriate punishment keeping in view the
magnitude or gravity of the misconduct. The High Court/Tribunal,
while exercising the power of judicial review, cannot normally
substitute its own conclusion on penalty and impose some other
penalty. If the punishment imposed by the disciplinary authority or the
appellate authority shocks the conscience of the High Court/Tribunal,
it would appropriately mould the relief, either directing the
disciplinary/appellate authority to reconsider the penalty imposed, or
to shorten the litigation, it may itself, in exceptional and rare cases,
impose appropriate punishment with cogent reasons in support
thereof.

d. Union of India v. G. Ganayutham MANU/SC/0834/1997
:1997:INSC:622 : (1997) 7 SCC 463 (three-Judge Bench):

Punishment in disciplinary matters: Wednesbury and CCSU tests

32. Finally, we come to the present case. It is not contended before us
that any fundamental freedom is affected. We need not therefore go
into the question of “proportionality”. There is no contention that the
punishment imposed is illegal or vitiated by procedural impropriety. As
to “irrationality”, there is no finding by the Tribunal that the decision is
one which no sensible person who weighed the pros and cons could
have arrived at nor is there a finding, based on material, that the
punishment is in “outrageous” defiance of logic. Neither Wednesbury
nor CCSU tests are satisfied. We have still to explain “Ranjit Thakur
[ MANU/SC/0691/1987 :1987:INSC:285 : (1987) 4 SCC 611 : 1987
SCC (L&S) 1 : (1987) 5 ATC 113] “.

33. In Ranjit Thakur [ MANU/SC/0691/1987 :1987:INSC:285 : (1987)
4 SCC 611 : 1987 SCC (L&S) 1 : (1987) 5 ATC 113] this Court
interfered with the punishment only after coming to the conclusion that
the punishment was in outrageous defiance of logic and was shocking.

It was also described as perverse and irrational. In other words, this
Court felt that, on facts, Wednesbury and CCSU tests were satisfied.

In another case, in B.C. Chaturvedi v. Union of India
33
[ MANU/SC/0118/1996 :1995:INSC:661 : (1995) 6 SCC 749 : 1996
SCC (L&S) 80 : (1996) 32 ATC 44] a three-Judge Bench said the same
thing as follows……….

34. In such a situation, unless the court/tribunal opines in its
secondary role, that the administrator was, on the material before him,
irrational according to Wednesbury [MANU/UKWA/0001/1947 :

(1948) 1 KB 223 : (1947) 2 All ER 680] or CCSU
[MANU/UKHL/0045/1984 : 1985 AC 374 : (1984) 3 All ER 935]
norms, the punishment cannot be quashed. Even then, the matter has
to be remitted back to the appropriate authority for reconsideration. It
is only in very rare cases as pointed out in B.C. Chaturvedi case [AIR
1961 SC 418 : (1961) 2 SCR 343] that the Court might – to shorten
litigation – think of substituting its own view as to the quantum of
punishment in the place of the punishment awarded by the competent
authority. (In B.C. Chaturvedi [AIR 1961 SC 418 : (1961) 2 SCR 343]
and other cases referred to therein it has however been made clear
that the power of this Court Under Article 136 is different.) For the
reasons given above, the case cited for the Respondent, namely, State
of Maharashtra v. M.H. Mazumdar [ MANU/SC/0485/1988
:1988:INSC:52 : (1988) 2 SCC 52: 1988 SCC (L&S) 436 : (1988) 6 ATC
876] cannot be of any help.

(emphasis ours)

e.   Om       Kumar     v.   Union       of   India      MANU/SC/0704/2000
:2000:INSC:532 : (2001) 2 SCC 386:

67. But where an administrative action is challenged as “arbitrary”
Under Article 14 on the basis of Royappa [ MANU/SC/0380/1973 :

1973:INSC:213 : (1974) 4 SCC 3 : 1974 SCC (L&S) 165] (as in cases
where punishments in disciplinary cases are challenged), the question
will be whether the administrative order is “rational” or “reasonable”
and the test then is the Wednesbury test. The courts would then be
confined only to a secondary role and will only have to see whether
the administrator has done well in his primary role, whether he has
acted illegally or has omitted relevant factors from consideration or
34
has taken irrelevant factors into consideration or whether his view is
one which no reasonable person could have taken. If his action does
not satisfy these rules, it is to be treated as arbitrary. [In G.B. Mahajan
v. Jalgaon Municipal Council [ MANU/SC/0284/1991 :1990:INSC:277
: (1991) 3 SCC 91] (SCC at p. 111).] Venkatachaliah, J. (as he then
was) pointed out that “reasonableness” of the administrator Under
Article 14 in the context of administrative law has to be judged from
the stand point of Wednesbury rules. In Tata Cellular v. Union of India
[ MANU/SC/0002/1996 : 1994:INSC:283 : (1994) 6 SCC 651] (SCC at
pp. 679-80), Indian Express Newspapers Bombay (P) Ltd. v. Union of
India [ MANU/SC/0406/1984 : 1984:INSC:231 : (1985) 1 SCC 641 :

1985 SCC (Tax) 121] (SCC at p. 691), Supreme Court Employees’
Welfare Assn. v. Union of India [ MANU/SC/0582/1989 :
1989:INSC:210 : (1989) 4 SCC 187 : 1989 SCC (L&S) 569] (SCC at p.

241) and U.P. Financial Corpn. v. Gem Cap (India) (P). Ltd.

[ MANU/SC/0481/1993 :1993:INSC:75 : (1993) 2 SCC 299] (SCC at
p. 307) while judging whether the administrative action is “arbitrary”
Under Article 14 (i.e. otherwise then being discriminatory), this Court
has confined itself to a Wednesbury review always.

68. Thus, when administrative action is attacked as discriminatory
Under Article 14, the principle of primary review is for the courts by
applying proportionality. However, where administrative action is
questioned as “arbitrary” Under Article 14, the principle of secondary
review based on Wednesbury principles applies.

Proportionality and punishments in service law

69. The principles explained in the last preceding paragraph in respect
of Article 14 are now to be applied here where the question of
“arbitrariness” of the order of punishment is questioned Under Article

14.

70. In this context, we shall only refer to these cases. In Ranjit Thakur
v. Union of India [ MANU/SC/0691/1987 :1987:INSC:285 : (1987) 4
SCC 611 : 1988 SCC (L&S) 1] this Court referred to “proportionality” in
the quantum of punishment but the Court observed that the
35
punishment was “shockingly” disproportionate to the misconduct
proved. In B.C. Chaturvedi v. Union of India [ MANU/SC/0118/1996
:1995:INSC:661 : (1995) 6 SCC 749 : 1996 SCC (L&S) 80 : (1996) 32
ATC 44] this Court stated that the court will not interfere unless the
punishment awarded was one which shocked the conscience of the
court. Even then, the court would remit the matter back to the authority
and would not normally substitute one punishment for the other.
However, in rare situations, the court could award an alternative
penalty. It was also so stated in Ganayutham[ MANU/SC/0834/1997
:1997:INSC:622 : (1997) 7 SCC 463 : 1997 SCC (L&S) 1806].

(emphasis ours)

g. Chairman and Managing Director, United Commercial Bank v. P.C.
Kakkar MANU/SC/0110/2003 :2003:INSC:76 : (2003) 4 SCC 364:

11. The common thread running through in all these decisions is that
the court should not interfere with the administrator’s decision unless
it was illogical or suffers from procedural impropriety or was shocking
to the conscience of the court, in the sense that it was in defiance of
logic or moral standards. In view of what has been stated in
Wednesbury case [Associated Provincial Picture Houses Ltd. v.

WednesburyCorpn,MANU/UKWA/0001/1947 : (1948) 1 KB 223 :

(1947) 2 All ER 680 (CA)] the court would not go into the correctness of
the choice made by the administrator open to him and the court should
not substitute its decision to that of the administrator. The scope of
judicial review is limited to the deficiency in decision-making process
and not the decision.

12. To put it differently, unless the punishment imposed by the
disciplinary authority or the Appellate Authority shocks the conscience
of the court/tribunal, there is no scope for interference. Further, to
shorten litigation it may, in exceptional and rare cases, impose
appropriate punishment by recording cogent reasons in support
thereof. In the normal course if the punishment imposed is shockingly
disproportionate it would be appropriate to direct the disciplinary
authority or the Appellate Authority to reconsider the penalty imposed.
36
(emphasis ours)

h. State of Gujarat v. Anand Acharya MANU/SC/7147/2007 : (2007)
9 SCC 310:

15. The well-settled proposition of law that a court sitting in judicial
review against the quantum of punishment imposed in the disciplinary
proceedings will not normally substitute its own conclusion on penalty
is not in dispute. However, if the punishment imposed by the
disciplinary authority or the Appellate Authority shocks the conscience
of the court, then the court would appropriately mould the relief either
by directing the disciplinary/appropriate authority to reconsider the
penalty imposed or to shorten the litigation it may make an exception
in rare cases and impose appropriate punishment with cogent reasons
in support thereof (see Bhagat Ram v. State of H.P.
[ MANU/SC/0322/1983 : (1983) 2 SCC 442 : 1983 SCC (L&S) 342],
Ranjit Thakur v. Union of India [ MANU/SC/0691/1987 :

1987:INSC:285 : (1987) 4 SCC 611 : 1988 SCC (L&S) 1] and U.P. SRTC
v. Mahesh Kumar Mishra [ MANU/SC/0187/2000 : 2000:INSC:143 :
(2000) 3 SCC 450 : 2000 SCC (L&S) 356]).

i. S.R. Tewari v. Union of India MANU/SC/0566/2013
:2013:INSC:361 : (2013) 6 SCC 602:

28. The role of the court in the matter of departmental proceedings is
very limited and the court cannot substitute its own views or findings
by replacing the findings arrived at by the authority on detailed
appreciation of the evidence on record. In the matter of imposition of
sentence, the scope for interference by the court is very limited and
restricted to exceptional cases. The punishment imposed by the
disciplinary authority or the appellate authority unless shocking to the
conscience of the court, cannot be subjected to judicial review. The
court has to record reasons as to why the punishment is
disproportionate. Failure to give reasons amounts to denial of justice.

The mere statement that it is disproportionate would not suffice….

(emphasis ours)
37

9. What follows from the precedents noted above is that courts should
exercise restraint while interdicting orders of punishment. Normally, no
court in exercise of its power of judicial review should interfere with an
order of punishment imposed on a delinquent as a measure of
disciplinary action by the competent authority and substitute its own
judgment for that of the former. This is premised on the reason that the
disciplinary authority is the best judge of the situation, and the
requirements of maintaining discipline within the work force. While it is
not the law that the courts should invariably stay at a distance when
legality and/or propriety of a particular punishment is questioned,
judicial scrutiny of the disciplinary action by way of punishment could
arise only if the circumstances are such that no reasonable person
would impose the punishment which is questioned and/or such
punishment has the effect of shocking the conscience of the court. To
put in simpler words, interference could be warranted if it appeals to
the court that the disciplinary authority has ‘used a sledgehammer for
cracking a nut’. A punishment, which is strikingly or shockingly
disproportionate and is not commensurate with the gravity of
misconduct, proved to have been committed in course of inquiry or
otherwise, would border on arbitrariness and offend Article 14 of the
Constitution.

10. Where a court, upon due consideration, arrives at the conclusion
that the punishment imposed is disproportionate, its intervention is
circumscribed in nature. Judicial scrutiny and interference, if at all,
has to be based on reasons in support of the court’s ultimate
satisfaction that the disciplinary authority has faltered in the exercise
of his discretion. In such a situation, the court may adopt one of two
courses: it may remit the matter to the competent authority for
reconsideration of the punishment; or, in the rarest of cases, it may
substitute the punishment while supporting such a course with cogent
reasons.”

38

74. The Hon’ble Supreme Court, in the case of The Life Insurance

Corporation Of India vs. S. Vasanthi2, has made the following

observations: –

“11. The scope and power of judicial review of the courts while dealing with
the validity of quantum of punishment imposed by the disciplinary authority
is now well settled. In the case of Deputy Commissioner, KVS and Ors. v. J.
Hussain MANU/SC/1015/2013 : (2013) 10 SCC 106, the law on this
subject, is recapitulated in the following manner:

“6. When the charge proved, as happened in the instance case, it is the
disciplinary authority with whom lies the discretion to decide as to what kind
of punishment is to be imposed. of course, this discretion has to be examined
objectively keeping in mind the nature and gravity of charge. The Disciplinary
Authority is to decide a particular penalty specified in the relevant Rules.
Host of factors go into the decision making while exercising such a discretion
which include, apart from the nature and gravity of misconduct, past
conduct, nature of duties assigned to the delinquent, responsibility of duties
assigned to the delinquent, previous penalty, if any, and the discipline
required to be maintained in department or establishment where he works,
as well as extenuating circumstances, if any exist. The order of the Appellate
Authority while having a re-look of the case would, obviously, examine as to
whether the punishment imposed by the Disciplinary Authority is reasonable
or not. If the Appellate Authority is of the opinion that the case warrants
lesser penalty, it can reduce the penalty so imposed by the Disciplinary
Authority. Such a power which vests with the Appellate Authority
departmentally is ordinarily not available to the Court or a Tribunal. The
Court while undertaking judicial review of the matter is not supposed to
substitute its own opinion on reappraisal of facts. (See: Union Territory of
Dadra and Nagar Haveli v. Gulabhia M. Lad MANU/SC/0304/2010 :
(2010) 5 SCC 775) In exercise of power of judicial review, however, the Court
can interfere with the punishment imposed when it is found to be totally
irrational or is outrageous in defiance of logic. This limited scope of judicial
review is permissible and interference is available only when punishment is
shockingly disproportionate, suggesting lack of good faith. Otherwise, merely
because in the opinion of the Court lesser punishment would have been more

2
2014 INSC 546
39
appropriate, cannot be a ground to interfere with the discretion of the
departmental authorities.

7. When the punishment is found to be outrageously disproportionate to the
nature of charge, principle of proportionality comes into play. It is, however,
to be borne in mind that this principle would be attracted, which is in tune
with doctrine of Wednesbury Rule of reasonableness, only when in the facts
and circumstances of the case, penalty imposed is so disproportionate to the
nature of charge that it shocks the conscience of the Court and the Court is
forced to believe that it is totally unreasonable and arbitrary. This principle of
proportionality was propounded by Lord Diplock in Council of Civil Service
Unions v. Minister for Civil Service in the following words:

“Judicial review has I think developed to a stage today when, without
reiterating any analysis of the steps by which the development has come
about, one can conveniently classify under three heads of the grounds on
which administrative action is subject to control by judicial review. The first
ground I would call “illegality”, the second “irrationality” and the third
“procedural impropriety”. This is not to say that further development on a
case by case basis may not in course of time add further grounds. I have in
mind particularly the possible adoption in the future of the principle of
proportionality.”

75. The Hon’ble Supreme Court, in the case of CHENNAI METROPOLITAN

WATER SUPPLY & SEWERAGE BOARD vs. T.T. MURALI BABU3, has

made the following observation:

“28. Presently, we shall proceed to scrutinise whether the High Court
is justified in applying the doctrine of proportionality. The doctrine of
proportionality in the context of imposition of punishment in service
law gets attracted when the court on the analysis of material brought
on record comes to the conclusion that the punishment imposed by the
disciplinary authority or the appellate authority shocks the conscience
of the court. In this regard a passage from Indian Oil Corpn. Ltd. v.
Ashok Kumar Arora [(1997) 3 SCC 72 : 1997 SCC (L&S) 636] is worth
reproducing:

3

(2014) 4 SCC 108
40
“20. At the outset, it needs to be mentioned that the High Court in such
cases of departmental enquiries and the findings recorded therein
does not exercise the powers of appellate court/authority. The
jurisdiction of the High Court in such cases is very limited for instance
where it is found that the domestic enquiry is vitiated because of non-

observance of principles of natural justice, denial of reasonable
opportunity; findings are based on no evidence, and/or the
punishment is totally disproportionate to the proved misconduct of an
employee.”

30. In Coal India Ltd. v. Mukul Kumar Choudhuri [Coal India Ltd. v.
Mukul Kumar Choudhuri, (2009) 15 SCC 620 : (2010) 2 SCC (L&S)
499], the Court, after analysing the doctrine of proportionality at
length, ruled thus:

“19. The doctrine of proportionality is, thus, well-recognised concept of
judicial review in our jurisprudence. What is otherwise within the
discretionary domain and sole power of the decision-maker to quantify
punishment once the charge of misconduct stands proved, such
discretionary power is exposed to judicial intervention if exercised in a
manner which is out of proportion to the fault. Award of punishment
which is grossly in excess to the allegations cannot claim immunity
and remains open for interference under limited scope of judicial
review.

20. One of the tests to be applied while dealing with the question of
quantum of punishment would be: Would any reasonable employer
have imposed such punishment in like circumstances? Obviously, a
reasonable employer is expected to take into consideration measure,
magnitude and degree of misconduct and all other relevant
circumstances and exclude irrelevant matters before imposing
punishment.

21. In a case like the present one where the misconduct of the
delinquent was unauthorised absence from duty for six months but
upon being charged of such misconduct, he fairly admitted his guilt
and explained the reasons for his absence by stating that he did not
41
have intention nor desired to disobey the order of higher authority or
violate any of the Company’s rules and regulations but the reason was
purely personal and beyond his control and, as a matter of fact, he
sent his resignation which was not accepted, the order of removal
cannot be held to be justified, since in our judgment, no reasonable
employer would have imposed extreme punishment of removal in like
circumstances. The punishment is not only unduly harsh but grossly in
excess to the allegations.”

After so stating the two-Judge Bench proceeded to say that one of the
tests to be applied while dealing with the question of quantum of
punishment is whether any reasonable employer would have imposed
such punishment in like circumstances taking into consideration the
major, magnitude and degree of misconduct and all other relevant
circumstances after excluding irrelevant matters before imposing
punishment.”

76. The misconduct attributed to the petitioner undoubtedly constitutes

serious indiscipline. Assault or use of criminal force against a superior

officer within a uniformed organisation strikes at the chain of command

and cannot be treated lightly. The Court cannot overlook the institutional

consequences flowing from such conduct. Simultaneously, however, the

materials on record disclose circumstances which persuade this Court to

conclude that the extreme penalty of dismissal from service travels

beyond the bounds of reasonable proportionality.

77. Firstly, the incident does not appear to have arisen in the context of

operational sabotage, desertion, mutiny, espionage, corruption or conduct

imperilling national security. The allegation concerns a personal

altercation escalating into physical misconduct within the campus.

Though reprehensible and wholly unacceptable, it does not disclose an
42
act calculated to undermine operational integrity of the Force in a manner

warranting civil death through permanent dismissal.

78. Secondly, the allegations concerning indecent remarks allegedly passed at

local girls were never transformed into an independent criminal

prosecution or established through any independent adjudicatory

mechanism. The disciplinary culmination substantially rests upon the

alleged assault upon the superior officer, however which is deprecating

related to a personal difference.

79. Thirdly, the records themselves indicate the existence of a counter-

allegation lodged by the petitioner against Sub-Inspector Gulab Singh

relating to outrage the modesty of the petitioner’s wife. Though the police

ultimately submitted a closure report, the existence of such allegations

indicated that interpersonal hostility and heightened emotional

circumstances surrounded the episode. The incident, therefore, cannot be

viewed entirely in isolation from the surrounding tensions existing

between the parties.

80. Fourthly, the punishment of dismissal from service carries devastating

and irreversible civil consequences. It extinguishes livelihood, social

security, retiral prospects and future economic stability not merely of the

employee but of the family dependent upon him. In matters involving

proportionality, the Court cannot adopt an abstract or mechanical

approach divorced from human consequences.

81. The doctrine of proportionality obliges the disciplinary authority to

distinguish between misconduct that renders continuance in service

wholly impossible and misconduct which, though serious, may still be
43
adequately addressed through lesser but substantial penalties capable of

preserving discipline without annihilating service existence altogether.

82. This Court is conscious that the petitioner had previous instances of

indiscipline reflected in the records. However, past misconducts had

already been dealt with departmentally. Those antecedents undoubtedly

entitled the respondents to adopt a stricter disciplinary approach.

Nevertheless, previous misconducts, already dealt with departmentally,

cannot operate as an inexhaustible justification for imposing the harshest

conceivable penalty in every subsequent proceeding irrespective of

contextual gradation.

83. The doctrine of proportionality requires the disciplinary authority to

distinguish between misconduct rendering an employee wholly unfit for

retention in service and misconduct which, though grave, may still admit

of correction through substantial but lesser penalties.

84. A constitutional court, while exercising judicial review, is not expected to

exhibit misplaced sympathy towards indiscipline within armed forces.

Equally, the Court cannot remain indifferent where punishment assumes

a degree of severity disproportionate to the factual complexion of the

misconduct established.

85. The Court must therefore examine whether the punishment imposed falls

within the range of reasonable administrative responses. In the opinion of

this Court, dismissal from service, in the peculiar facts of the present

case, crosses the threshold of proportionality and assumes an unduly

excessive character.

86. The present case presents precisely such a situation. The misconduct

proved against the petitioner certainly justifies imposition of a major
44
penalty. However, permanent dismissal from service appears to travel

beyond what was necessary for preservation of discipline. A punishment

of such irreversible severity, in the factual circumstances of the present

case, disrupts the balance which administrative law seeks to preserve

between deterrence and fairness.

87. The ends of discipline would not stand defeated if the disciplinary

authority is directed to reconsider the quantum of punishment and

impose another substantial penalty short of dismissal or removal from

service. Institutional authority can still be vindicated without

extinguishing the petitioner’s entire service career.

88. The constitutional power of judicial review includes the authority to

interfere where punishment appears outrageously disproportionate to the

misconduct proved. Such intervention does not amount to dilution of

discipline. Rather, it preserves the balance between administrative

authority and constitutional fairness. This Court is therefore unable to

sustain the punishment of dismissal from service.

89. At the same time, the petitioner cannot be exonerated of responsibility nor

can the misconduct be trivialized. The proven act of assault and

threatening behaviour towards a superior officer within the precincts of a

disciplined force warrants serious penal consequences. Any direction of

reinstatement simpliciter without departmental consequence would send

an entirely erroneous signal inconsistent with institutional discipline.

90. The finding of guilt recorded against the petitioner under Section 20(a) of

the Border Security Force Act is not interfered with. The disciplinary

proceedings and the adjudicatory process conducted by the Summary
45
Security Force Court are also sustained. The interference of this Court

remains confined exclusively to the punishment imposed.

91. The sentence of dismissal from service is set aside on the ground of

disproportionality. The matter is remitted to the competent disciplinary

authority for fresh consideration limited to the quantum of punishment,

considering the mitigating punishments as elicited in provisions of Rule

48 and Rule 49 of the Border Security Forces Rules, 1969 as aforesaid.

The authority shall be at liberty to impose any other penalty permissible

under the Border Security Force Act, 1968 and the Rules framed

thereunder, except dismissal or removal from service, after taking into

account the nature of misconduct proved, the petitioner’s past service

record, the requirements of institutional discipline. Such exercise shall be

completed within twelve weeks from the date of communication of this

order.

92. It is clarified that this Court has not interfered with the findings of guilt

recorded during the disciplinary proceedings. The interference is confined

exclusively to the punishment imposed.

93. The writ petition thus succeeds in part.

94. In view of the aforesaid discussions, the instant writ petition being WPA

17193 of 2013 stands disposed of.

95. There is no order as to costs.

96. Photostat certified copy of this order, if applied for, be given to the parties

on priority basis on compliance of all formalities.

(Ananya Bandyopadhyay, J.)