TMI Blog2005 (10) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act') read with Rule 20 of the Border Security Force Rules, 1969 (in short 'the Rules). The appeal filed by the delinquent officer was allowed upsetting the judgment of the learned Single Judge who had dismissed the writ petition filed by the delinquent officer. Factual position, filtering out unnecessary details, is as follows: There was a raid in the house of militants on 23rd and 24th March, 1992. The delinquent officer being Deputy Inspector General in Command was having Supervisory power over the Commandant who raided the hideout of militants. On the night intervening 23rd and 24th March 1992 house of one Mohd. Maqbool Dhar in Bemina Colony of Srinagar was raided by 23 men of the force. During the raid two militants described as 'dreaded militants' namely Javed Ahmed Shalla and Mohd. Siddiqui Soffi were apprehended. According to the authorities huge quantity of arms, ammunitions and explosives and household articles including gold ornaments were recovered. The recovery of arms, ammunition and explosives and gold ornaments were not reflected in the seizure report sent to higher authorities. Respondent was not present at the spot and he indicated his pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the delinquent officer and he had no satisfactory explanation to the various charges and recommended that the competent authority may call upon the delinquent officer to resign under Rule 20(4) or on his refusal to do so, compulsorily retire or remove him from service with pension and gratuity. On 6.2.1993 Director General after considering the show cause notice, reply to the show cause notice, report of the Enquiry Officer and view of Inspector General, BSF recorded his satisfaction that it was neither expedient nor practicable to conduct the trial and in exercise of his powers under Rule 20(4) of the Rules recommended to Central Government that delinquent officer be called upon to resign from service. The recommendation of the Director General, BSF that it was inexpedient or impracticable to hold inquiry and calling upon delinquent officer to resign was considered by the State Minister who expressed his view as under:- It is a very serious case which has brought bad name to the BSF in the State. I agree that the penalty of removal from service without pensionary benefits should be imposed on Shri Ashok Kumar DIG, BSF as proposed above. DG, BSF should also expedite impositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of learned Single Judge. In support of the appeal, following points were urged: (i) There is no independent or sufficient material for taking action under Rule 20 and the material relied upon is only that which has been collected by the Court of Inquiry, the use of which is not permissible. The respondent can be tried before the Security Force Court as the show cause notice has been served and the witnesses are also available. (ii) Learned Single Judge has misdirected himself in recording the finding and maintaining that it was not expedient and practicable to hold inquiry. (iii)He is a Class-1 Officer of the BSF under Ministry of Home Affairs and, therefore, as per Item No.13 of the First Schedule read with Rule 2 of the Govt. of India (Allocation of Business) Rules, 1961 he could only be removed by the Prime Minister and the President in terms of Serial No.39 of the Third Schedule read with Rule 8 of the Transaction of Business Rules, 1961. (iv) The authorities have removed him from service without following the provisions of law contained in Section 10 of the Act read with Rule 20 of Rules, as the Central Government has neither recorded the satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the true scope and ambit of Rule 20. It was pointed out that Rule 14 of the Army Rules dealt with any category of employees, while Rule 20 of the Rules dealt with officers. It was pointed out that the Director General is given power to conduct inquiry and is also the appointing authority. In support of the other appeal filed by the delinquent officer, apart from the supporting judgment of the Division Bench it was submitted that the Division Bench of the High Court was not justified in its conclusions so far as the other three points are concerned. Specific allegations of mala-fides were not dealt with by the High Court. It was also submitted that in any event there was no application of mind by the concerned Minister, and merely on the opinion of the Desk Officer the order was passed. Considering the limited scope for judicial review it was submitted that the view of the Division Bench is irreversible. As the basic controversy revolves round the scope and ambit of Rule 20, it is necessary to quote the same. The said Rule reads as follows: 20. Termination of service of officers by the Central Government on account of misconduct: (1) When it is proposed to terminate the serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be, and the recommendation of the Director-General, may remove or dismiss the officer with or without pension, or retire or get his resignation from service, and on his refusing to do so, the officer may be compulsorily retired or removed from the service with pension or gratuity, if any, admissible to him. Sub-rule (1) deals with the proposal to terminate the service under Section 10 on account of mis-conduct and requires an opportunity to be given to show cause in the manner stated. Operation of sub-rule (1) is ruled out in the category of cases covered by the proviso to sub-rule (1). Sub-rule (2) deals with modalities to be followed when either the Central Government or the Director-General, as the case may be, is satisfied that the trial of the Officer by a Security Force Court is inexpedient or impracticable and yet either the Central Government or the Director- General, as the case may be, is of the opinion that further retention of the concerned officer in the service is undesirable. Thereafter, comes to the role of the Director- General. He is required to inform the officer together with particulars of allegation and report of the investigation, (including the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s defence and the recommendations of the Director-General. When Director- General finds the explanation unsatisfactory he recommends for action. There may be cases where the Central Government directs the Director-General to submit the case. There can be a case where the Central Government finds that the explanation is unsatisfactory. In that case the Central Government may direct the case to be submitted to it. At the first stage the consideration is by the Director- General. When he finds the explanation unsatisfactory, he recommends action by the Central Government. But even if he finds explanation to be satisfactory, yet the Central Government can direct the case to be submitted to it. Recommendations in terms of sub-rule (4) are made by the Director-General and the final order under Rule 20(5) is passed by the Central Government. The expression as the case may be is used in sub-rule (2) and sub-rule (5). It obviously means either of the two. It is to be further noted that the order in terms of sub-rule (5) is passed by the Central Government. But the enquiry can be either by the Central Government or the Director-General, as the case may be. There is another way of lookin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e law that mala fide in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (S. Pratap Singh v. State of Punjab AIR 1964 SC 72). It cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demand proof of a high order of credibility. As noted by this Court in E. P. Royappa v. State of Tamil Nadu and Another (AIR 1974 SC 555), Courts would be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. (See Indian Railway Construction Co. Ltd. v. Ajay Kumar 2003 (4) SCC 579). As observed by this Court in Gulam Mustafa and Ors. v. The State of Maharashtra and O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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