IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

Appellate Side

Present:

The Hon’ble Justice Ajay Kumar Gupta

WPA 10487 of 2021

With

CAN 1/2022

Ravi Kant

Versus

Union of India and Others

For the Petitioner : Mr. Saptangshu Basu, Ld. Sr. Adv.

Ms. Tanuka Basu, Adv.

Mr. Tanmoy Chakraborty, Adv.

Mr. Sourav Dutta, Adv.

Ms. Susmita Saha, Adv.

Mr. Akash Das, Adv.

For the Respondents/

Union of India : Mr. D.N. Roy, Adv.

Ms. Debapriya Gupta, Adv.

Mr. Sourav Mondal, Adv.

Heard on : 12.03.2026

Judgment on : 27.03.2026

2

Ajay Kumar Gupta, J.: -

1. The petitioner has filed this writ petition challenging the purported

show cause notice dated 31

st

December, 2020 and the purported

termination notice dated 26

th

April, 2021, issued by the respondent

no. 4, the Deputy Inspector General (Confidential), BSF, on behalf of

the respondent no. 2, the Director General, BSF.

2. The prayers made by the petitioner in the writ petition, inter alia, are

as under: -

“A) Rule 26 of the Writ Rules be dispensed with;

B) A Writ of or in the nature of Mandamus be issued directing the

respondent authorities as follows: -

i) to act in accordance with law;

ii) to set aside and/or quash the purported show cause notice

for initiation of action under Rule 20 (4) (C) of the BSF Rules,

1969 under No. C-14011/08/2019/CC/ PERS/BSF/21469-

74 dated 31

st

December, 2020 issued by the respondent no. 4

on behalf of the respondent no. 2;

iii) to set aside and/or quash the purported show cause notice

for termination of service of the petitioner under Rule 20 (4) (C)

of the BSF Rules, 1969 under F. No. C-14011/08/2019/ CC/

Pers/ BSF/ 10799-802 dated 26

th

April, 2021 issued by the

respondent no. 4 on behalf of the respondent no. 2;

3

iv) to supply the petitioner the copy of the report of the

petitioner’s misconduct on the basis of which purported show

cause notices for initiation of proceeding and termination of

service were issued by the respondent no. 4 on behalf of

respondent no. 2;

v) to restrain the respondents from proceeding further on the

basis of purported show cause notices dated 31.12.2020 and

26.04.2021 issued by the respondent no. 4 on behalf of the

respondent no. 2;

C) A Writ of or in the nature of Certiorari be issued directing the

respondents particularly the respondent nos. 2, 3, 4 and 5 to transmit

all papers and documents relating to this case so that on perusal of the

same a conscionable justice may be administered thereon by setting

aside and/or quashing purported show cause notices dated

31.12.2020 and 26.04.2021 respectively issued by the respondent no.

4 on behalf of the respondent no. 2;

D) Rule Nisi in terms of prayer (B) and (C) above;

E) An order of Injunction be passed restraining the respondents

particularly the respondent nos. 2, 3 and 4 from proceeding further on

the basis of the purported show cause notices dated 31.12.2020 and

26.04.2021 issued by the respondent no. 4 on behalf of the respondent

no. 2 till the disposal of this application;

F) An order of Injunction be passed restraining the respondent nos. 2, 3

and 4 from terminating the service of the petitioner by invoking Rule 20

(4) (C) of the Border Security Force Rules, 1969 till the disposal of this

application;

4

G) An order of Mandatory Injunction be passed directing the

respondents particularly the respondent nos. 2, 3 and 4 to supply the

documents as sought for by the petitioner vide various letters and to

supply the copy of the report on petitioner’s misconduct, the basis of

which the purported show cause notices were issued by the

respondent no. 4 on behalf of the respondent no. 2;

H) Ad-interim order in terms of prayers (E), (F) & (G) respectively;

I) Any other or further order or orders and/or direction or directions as

to Your Lordships may deem fit and proper.”

FACTS OF THE CASE:

3. The brief facts, leading to the filing of this writ petition, are as follows:

a. On 1

st

December, 1988, the petitioner joined as a Sub-

Inspector/Platoon Commander in Border Security Force (‘BSF’ in

short). On 01.02.1993, the petitioner joined as Assistant

Commandant. In August, 2011, the petitioner was promoted to the

rank of Commandant and in September, 2011, the petitioner was

posted to 38 BN BSF as Commandant deployed at Dera Baba

Nanak, Punjab.

b. In August of 2014, a complaint was lodged by a Subordinate

female officer/respondent no. 6, against the petitioner. At the

relevant time, the respondent no. 6 was posted at 80 BN, BSF

Camp, Rajouri, about 320 kms away from the posting of the

petitioner. On 14

th

August, 2014, on disciplinary grounds, the

5

Petitioner was posted to FTR.HQ, BSF, Jalandhar, Punjab. The

Court of Inquiry was concluded against the petitioner, and suitable

action as deemed appropriate was recommended against the

petitioner on 10.09.2014.

c. In December, 2014, the petitioner was posted to SHQ, Ferozepur,

Punjab. A Record of Evidence (ROE) was conducted, and the

Recording Officer recommended administrative action in the nature

of displeasure and warning against the petitioner. However, in

August, 2015, the respondent no. 2, exercising discretionary

power, directed that a General Security Force Court (GSFC) be

convened to try the petitioner of the proposed three charges.

d. The Petitioner faced trial before a GSFC at Ferozepur, Punjab.

Before, during, and after the period of trial, he was confined in a

room and was not permitted to leave the BSF Campus. On 10

th

July, 2017, the GSFC declared the petitioner ‘Not Guilty’ of all

three charges.

e. By order dated 20

th

August, 2018, the Respondent no. 2, instead of

confirming the findings of the GSFC, directed a revision trial for re-

appreciation of evidence in respect of one charge. The petitioner

faced a revision trial before the GSFC at Ferozepur, Punjab. The

petitioner was again confined to one room for one month pre- and

6

post-revision trial, before the GSFC and was not permitted to leave

the BSF Campus during that period.

f. On 11.09.2018, the GSFC reconfirmed its earlier finding once more

declaring the petitioner “Not Guilty” of the said charge, after

complete, careful and judicious scrutiny of the evidence on record,

law and other circumstances. The petitioner reported to SHW,

Firozepur, for promulgation of sentence on 10.03.2019, which was

conveyed and two charges were dropped on 11.03.2019.

g. In September, 2019, the petitioner was awarded a Director

General’s Commendation Card.

h. On 8

th

January, 2021, the petitioner received the purported show

cause notice dated 31

st

December, 2020, issued by the respondent

no. 4 on behalf of the respondent no. 2 under Rule 20(4)(C) of the

BSF Rules, 1969, read with Section 10 of the BSF Act, 1968. The

petitioner sought documents to give a detailed reply to the

purported show cause notice dated 31

st

December, 2020.

i. On 1

st

February, 2021, the petitioner submitted a partial reply to

the show cause notice as the documents sought by the petitioner

were not provided to him. On the same date, the petitioner filed a

writ petition before the Hon’ble Delhi High Court. The Hon’ble High

Court initially stayed the show cause notice, and on 3

rd

February,

7

2021, the petitioner withdrew the writ petition and, accordingly, it

was dismissed as withdrawn.

j. Again, in April, 2021, the petitioner requested that the respondent

no. 2 supply the documents for giving a detailed reply, but on 26

th

April 2021, the respondent no. 2 issued second show cause notice

to terminate the service of the petitioner. The petitioner received

the said show cause notice was received by the petitioner.

k. Being aggrieved by and dissatisfied with two show cause notices

dated 31.12.2020 and 26.04.2021, the petitioner filed this writ

petition seeking the aforesaid relief(s).

SUBMISSIONS ON BEHALF OF THE PETITIONER:

4. Learned senior counsel appearing on behalf of the petitioner

vehemently argued that the impugned show cause notices issued by

the respondent no. 4 on behalf of the respondent no. 2 are

premeditated and reflect a closed and prejudged mind of the

confirming authority. It was argued that the said show cause notices

were issued without application of mind and without semblance of

reasoning with the sole objective of terminating the petitioner from

the service, despite the GSFC having found “Not Guilty” on all three

charges levelled against him from 20.06.2017 to 10.07.2017. The

petitioner faced trial on the basis of a recommendation made by the

8

respondent no. 2. The GSFC concluded the trial and found “Not

Guilty” after considering the evidence, both oral and documentary.

5. It was further submitted that the findings of the GSF were placed

before the confirming authority, i.e., the respondent no. 3 herein.

However, instead of confirming the same, the authority further

remanded the matter back for revision only on one charge with the

express direction to the GSFC to revisit its earlier finding on a

particularly one charge that is preferred u/s 46 of the BSF Act, 1968

for committing a civil offence – Sexual harassment by demand or

request for sexual favours punishable u/s 354A (2) IPC.

6. Pursuant to such remand, the petitioner again faced trial/re-

appreciation of evidence before the Revisional Court and, ultimately,

vide order dated 11.09.2018, again the Revisional Court confirmed

the earlier findings of “Not Guilty”. However, the respondent no. 3

again did not confirm the findings of the GSFC or the Revisional

Court. Rather, the petitioner’s movements outside the campus were

curtailed for around two months. The petitioner was forced to be

confined to a single room without any work for want of confirmation

from the respondent no. 3. Ultimately, the petitioner joined on

01.05.2018 at SHQ, BSF, Kolkata, West Bengal Frontier as

9

Commandant (Operations), a sensitive posting at the Indo-

Bangladesh Border.

7. It was further contended that, in 2019, the petitioner was awarded

the Director General Commandant Roll (DGCR) in recognition of his

meritorious service after acquittal. However, subsequently, the

petitioner received a Show Cause Notice proposing compulsory

retirement on the basis of the same allegations for which he had

already been tried and exonerated.

8. Learned Senior Counsel further submitted that the impugned Show

Cause Notice as well as Termination, issued by the respondent no. 4

on behalf of the respondent no. 2, are whimsical, mala fide, and

issued without any valid and sufficient ground. It was argued that the

mandatory conditions for the invocation of Rule 20 of the BSF Rules,

1969 were not satisfied. Therefore, the act of the respondent no. 2

was apparently illegal, assumed jurisdiction to terminate the service

of the petitioner and a mala fide, arbitrary and unconstitutional

exercise of power. No sufficient reason was assigned in the said show

cause notices as to why such show cause notice was required to be

issued when twice occasions GSGC declared ‘Not Guilty’ after full

trial on the basis of evidence, both oral and documentary as such,

such notices are liable to be set aside and should be quashed.

10

9. Learned senior counsel has placed reliance on some judgments in

support of his contention that if the show cause notice without

assigning valid reasons or indicating the finding of the GSFC are not

convincing, perverse and against the weight of the evidence should be

unsustainable and should be set aside as under: -

i. Sri Amiya Ghosh Vs. The Union of India & Ors.

1

;

ii. R.S. Kadian Vs. Union of India & Ors.

2

;

iii. No. 87250608 Head Constable, Raj Kumar & Ors. Vs.

Commandant 125 Battalion Border Security Forces & Ors.

3

;

iv. Union of India & Ors. Vs. No. 87250608 Head Constable, Raj

Kumar & Ors.

4

SUBMISSIONS ON BEHALF OF THE RESPONDENTS:

10. Learned counsel appearing on behalf of the Respondents submitted

an affidavit in opposition filed in the present writ petition by the

respondents, stating a clear stand against the petitioner. It was

contended that the confirming authority rightly declined to accept the

findings of the GSFC, believing that retention of the petitioner in

service was not desirable, in terms of Section 11 of the BSF Act,

1968, read with Rule 22 (2) of the BSF Rules, 1969. Accordingly, a

1

(2017) 1 CAL LT 1 (HC);

2

W.P.(C) 19014/2006 & CM Appl. 19244/2018;

3

W.P. 10263(W) of 2015 order dated 11.01.2017;

4

2025 SCC OnLine Cal 8165.

11

show-cause notice dated 31.12.2020 was issued to the petitioner. It

was further submitted that the Petitioner failed to submit a proper

reply, necessitating issuance of a second show case notice dated 26

th

April, 2021, proposing termination under Rule 20(4)(C). It was argued

that adequate opportunity was afforded to the petitioner and no

prejudice has been caused.

11. It was further submitted that although the GSFC returned findings of

“Not Guilty” on two occasions, such findings do not attain finality

unless confirmed by the competent authority. The confirming

authority, upon an overall assessment of the evidence, was not

satisfied with the findings, and reasons for such dissatisfaction have

been duly recorded in the show cause notice. It was contended that

the writ petition is premature, as the petitioner approached the Court

without submitting a complete reply to the show cause notice.

12. Learned counsel further submitted that the matter was earlier

considered by a Co-ordinate Bench, which directed the petitioner to

file a reply to the show cause notice and permitted the respondents to

proceed with the enquiry. However, it was directed that the final

outcome of such proceedings shall not be given effect to without leave

of the Court. The respondents were also directed to file their affidavit-

12

in-opposition within the stipulated time. The observations of the

Coordinate bench are Setout hereinbelow: -

“the matter is required to be heard after affording the respondents

to disclose their stand on affidavit. At the same time, if no

protection is granted to the petitioner, the proceedings before the

Director General, BSF will continue and the writ petition may be

rendered infructuous if at the end the petitioner is found guilty

and removed from the services. The petitioner was, therefore,

directed to reply to the show cause notice and the respondents

shall be free to proceed with the proceedings on the basis of such

notice and reply but the final result of the proceedings initiated in

terms of the notice dated 31

st

December, 2020 shall not be

published or given effect to without the leave of this Court. The

petitioner is permitted to file reply to the show cause notice and

also asked the respondents to file affidavit-in-opposition within

four weeks from date and reply, if any, thereto be filed by two

weeks thereafter.”

13. It was lastly submitted that the departmental enquiry has already

been concluded, and the outcome has been placed before this Court

in a sealed cover. It was contended that there is no illegality or

perversity in the initiation of proceedings or issuance of the show

cause notices, and the writ petition is therefore liable to be dismissed.

ANALYSIS AND FINDINGS OF THIS COURT:

14. This Court has heard the learned counsel for the respective parties

and perused the materials placed on record. It appears that the GSFC

13

tried the petitioner under the BSF Act, 1968, w.e.f. 20

th

June, 2017 to

10

th

July, 2017. The GSFC conducted a full trial on the three charges

levelled against the petitioner. Those charges are stated herein

below:-

i. The first charge against him was preferred u/s 46 of the BSF

Act, 1968, for committing a civil offence – “Sexual

harassment by demand or request for sexual favours

punishable u/s 354A (2) IPC.

ii. Second and third charges were preferred u/s 40 of the BSF

Act for “An act prejudicial to good order and discipline of the

Force”.

15. The first charge asserted that during the period from 2

nd

to 3

rd

August, 2014, while commanding 38 Bn BSF at Dera Baba Nanak,

Dist. Gurdaspur (Pb) caused sexual harassment to “X” (This court

does not prefer to narrate the specific name of the victim since the

matter is in connection with an offence relating to a woman), AC/MO,

IRLA No. 11217206, of 80 Bn BSF by demanding/requesting her for

sexual favours by sending sexually coloured messages through

WhatsApp.

16. The second charge asserted that during the period from 2

nd

August,

2014, to 4

th

August, 2014, while Commanding 38 Bn BSF at Dera

14

Baba Nanak Dist. Gurdaspur (PB) improperly used a SIM Card issued

in the name of HC/RO Devender Singh, formerly posted in 38 Bn

BSF, for indulging in objectionable and sexually coloured WhatsApp

chatting with ‘X’, AC/MO of 80 Bn BSF.

17. The third charge asserted that on 1

st

August, 2014, at HQ 38 BN

BSF, Dera Baba Nanak, Dist. Gurdaspur (PB), being Commandant of

38 Bn BSF, improperly asked ‘X’, AC/MO of his unit, to insist that

she indulge in a WhatsApp chat with him on the pretext of ‘something

urgent’.

18. After culmination of the trial, the GSFC found him ‘Not Guilty’ of all

three charges, which should have confirmed by the confirming

authority since the GSFC declared him ‘Not Guilty’.

19. The confirming authority, after going through the observation made

by the GSFC, found that there was sufficient evidence against the

petitioner in the trial proceeding with regard to the first charge and

the finding of the GSFC on the first charge was against the weight of

evidence. The findings of the GSFC in the other two charges were

accepted by the confirming authority.

20. The Additional DG (WC), BSF, being the Confirming Authority, was

unsatisfied with the weight of the evidence, remanded the matter for

revision of trial by the GSFC under Rule 113 of the BSF Rules, 1969

15

only on the issue of aforesaid first charge. Revision Court again re-

tried and reappreciated the evidence on record and finally came to a

conclusion upon consideration of the evidence produced before the

GSFC and declared again the petitioner as “Not Guilty” and

confirmed the earlier findings. However, the confirming authority

again not satisfied with the finding of the GSFC and observed that

there was sufficient evidence in the trial proceeding with reference to

the first charge against the petitioner. Therefore, he did not confirm

the findings of the GSFC on first charge whereas findings of second

and third charges were confirmed.

21. Having examined the recognition of confirming authority as well as

evidence available in the trial proceeding, the Director General, BSF

is of the view that there being no provision for second revision of the

finding of the GSFC under BSF Act, 1968 and the finding of the first

charge having been not confirmed being against the weight of the

evidence, the trial on the first charge has become inexpedient.

22. It was further the view of the DG, BSF that the petitioner should not

be retained in the service as it is undesirable and is of the opinion

that his service should be terminated in terms of Section 10 of the

BSF Act, 1968 read with Rule 20(4)(c) of the BSF Rules, 1969 by

asking him to retire from service and therefore, issued show cause

16

notice dated 31

st

December, 2020 under the provision of Rule 20 of

the BSF Rules asking the petitioner why he should not be terminated

from service by retiring him from service.

23. The petitioner has partially replied to the said notice, indicating that

the show cause was not properly issued as he was acquitted by GSFC

against all three charges. Subsequently, the Revision Court also

confirmed the first charge, which was referred for revision by the

confirming authority. He also pleaded that he had been credited with

very good performance in his service career, and no materials were

available against him before the GSFC to convict him of any of the

charges.

24. The GSFC is constituted under Section 64 of the BSF Act,1968. It

consists of not less than five officers, each of whom has held the post

of Deputy Superintendent of Police for not less than three whole years

and of whom not less than four are of a rank not below that of a

confirmed Deputy Superintendent of police (Section 68) and has

power try the case judiciously. Section 87 deals with General rule as

to evidence. The Indian Evidence Act, 1872 (1 of 1872), shall, subject

to the provisions of the BSF Act, apply to all proceedings before the

GSFC. Apart from that the GSFC may take judicial notice of matter

within the general knowledge of the members as officers of the Force

17

and all other general power like Summoning witnesses, Commissions

for Examination of Witnesses, Examination of Witness on

commission, conviction of offence not charged, presumption as to

certain documents and also may inquire into, and receive, and record

evidence of any previous convictions of such person, who tried before

it.

25. The petitioner challenged the show cause notices dated 31.12.2020

as well as 26.04.2021 issued against him proposing for termination of

service by filing the present writ petition. Initially, the matter was

heard by the Co-ordinate Bench and passed the following order: -

“...the matter is required to be heard after affording the

respondents to disclose their stand on affidavit. At the same

time, if no protection is granted to the petitioner, the

proceedings before the Director General, BSF will continue and

the writ petition may be rendered infructuous if at the end the

petitioner is found guilty and removed from the services.

The petitioner, therefore, shall reply to the show cause and

the respondents shall be free to proceed with the proceedings

on the basis of such notice and reply, but the final result of the

proceedings initiated in terms of the notice dated 31

st

December, 2020 shall not be published or given effect to

without the leave of this Court.

The petitioner says that the time to file reply to the show

cause notice has already expired and the petitioner may be

granted an opportunity to file his reply.

18

The petitioner is permitted time till 16

th

November, 2021 for

filing reply to the show cause notice dated 31

st

December,

2020.

Let affidavit-in-opposition be filed within a period of four

weeks from date. Reply, if any, thereto be filed by two weeks

thereafter.”

26. In course of pendency of this writ petition, the respondents have filed

an application, being CAN 1 of 2022, praying to grant leave to publish

and/or to give effect to the final order of termination of service of the

writ petitioner. That matter was placed before the Co-ordinate

Benches, but ultimately the matter came up before this bench on

07.01.2026 due to a change in determination, and this Court heard

the learned counsels for the respective parties at length for final

adjudication.

27. Now, the questions that emerge for consideration before this Court

are as follows:

i. Whether, after the petitioner has been declared “Not Guilty” by the

GSFC and such finding has been reaffirmed upon revision, the

confirming authority is empowered to issue a show cause notice

proposing termination of service under Rule 20(4)(c) of the BSF

Rules, 1969?

19

ii. Whether the confirming authority is under a legal obligation to

assign cogent and reasonable grounds for declining to confirm the

GSFC’s finding of “Not Guilty”?

iii. Whether the principles of natural justice require the authority to

furnish all relevant materials to the petitioner and afford a

meaningful opportunity of hearing before taking an adverse

decision?

28. Upon careful perusal of Section 107 of the BSF Act, it is revealed that

the findings of GSFC need confirmation by the confirming authority.

29. Before deciding the issue involved in the instant case, this Court

would like to refer to Section 10 of the BSF Act, 1968 and Rule 20 of

the BSF Rules, 1969 as under: -

Section 10 of the BSF Act, 1968:

“10. Termination of service by Central Government. -

Subject to the provisions of this Act and the rules, the Central

Government may dismiss or remove from the service any

person subject to this Act.”

Rule 20 of the BSF Rules, 1969:

“20. Termination of service of officers by the Central

Government on account of misconduct. -( 1) When it is

proposed to terminate the service of an officer under Section 10

on account of misconduct, he shall be given an opportunity to

show-cause in the manner specified in sub-rule (2) against such

action:

20

Provided that this sub-rule shall not apply: -

(a) where the service is terminated on the ground of conduct

which has led to his conviction by a criminal court or a Security

Force Court; or

(b) where the Central Government is satisfied that for reasons,

to be recorded in writing, it is not expedient or reasonably

practicable to give to the officer an opportunity of showing

cause.

(2) When after considering the reports on an Officer's

misconduct, 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, but is of

the opinion, that the further retention of the said officer in the

service is undesirable, the Director-General shall so inform the

officer together with particulars of allegation and report of

investigation (including the statements of witnesses, if any,

recorded and copies of documents if any, intended to be used

against him) in cases where allegations have been investigated

and he shall be called upon to submit, in writing, his

explanation and defence:

Provided that the Director-General may withhold disclosure of

such report or portion thereof if, in his opinion, its disclosure is

not in the interest of the Security of the State.

(3) In the event of the explanation of the Officer being

considered unsatisfactory by the Director-General, or when so

directed by the Central Government, the case shall be

submitted to the recommendations of the Director-General as to

the termination of the Officer's service in the manner specified

in sub-rule (4).

(4) When submitting a case to Central Government under the

provisions of sub-rule (2) or sub-rule (3), the Director-General

21

shall make his recommendation whether the Officer's service

should be terminated, and if so, whether the officer should be-

(a) dismissed from the service; or

(b) removed from the service; or

(c) retired from the service; or

(d) called upon to resign.

(5) The Central Government, after considering the reports and

the officer's defence, if any, or the judgment of the criminal

court, as the case 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.”

30. Section 108 of the BSF Act envisages the power of the ‘confirming

authority’, which reads as under:

“S.108. Power to confirm finding and, sentence of

General Security Force Court. – The findings and sentences

of General Security Force Courts may be confirmed by the

Central Government or by any officer empowered in this

behalf by warrant of the Central Government.”

31. As per Section 108, the findings of GSFC deserve confirmation. This

provision is silent about the observance of principles of natural

justice if the findings of the GSFC are in favour of the employee, and

the confirming authority intends to disagree with it and is inclined to

impose punishment.

22

32. So, this Court is of the view that the confirming authority can issue a

show cause notice under Rule 20 of the BSF Rules, subject to some

reasonableness, as to why it is not satisfied with the findings of the

GSFC as well as the Revisional Court.

33. It is not disputed that in the present case, the case was tried by the

GSFC against the petitioner on mainly three charges and found ‘Not

Guilty’ of all three charges. Subsequently, the competent authority

was not satisfied with the finding of the GSFC as regard to the First

Charge and placed the petitioner before the GSFC for revision. But

this time, he was also declared ‘Not Guilty’ of the alleged charge.

However, the authority was not satisfied with the finding the GSFC

and issued a show cause notice dated 31

st

December, 2020 under

Rule 20(4)(c) of the BSF Rules, 1969, and subsequently another show

cause notice was issued on 26

th

April, 2021 indicating therein that

the grounds or reasons leading to decision for proposed

administrative termination of your service have adequately been

covered.

34. The show cause notices dated 31

st

December, 2020, and 26

th

April,

2021, become the subject matter of challenge before this court.

35. The Show cause notice dated 31

st

December, 2020 reads, inter alia,

as follows:

23

“3. Whereas, at the Revision Trial, the Court adhered to its earlier

Finding of ‘Not Guilty’ on the First Charge. However, the

Confirming Authority after going through the evidence available in

the Trial Proceedings, confirmed the Findings of the Court on the

Second and Third Charges but did not confirm the Finding of the

Court on the First Charge as the same was found to be against

the weight of evidence.

4. Whereas, the Addl DG (WC), the Confirming Authority has

taken up the case with HQ DG BSF for initiation of administrative

action against you under Section 10 of the BSF Act, 1968 read

with Rule 20(4) (c) of BSF Rules, 1969 i.e. to retire you from

service.

5. Whereas, DG BSF has examined the report of Confirming

Authority as well as the GSFC trial proceedings and on overall

perusal of the evidence adduced before the GSFC in respect of the

First Charge, DG BSF has found that the Court considered the

words of the chat, "I waana have all kind of relationship with u..

are you ready?? Yeah.... emotional psychological physical etc..

now make me clear. Be frank pl" devoid of any sexual

orientations, though, a plain reading of the chats clearly indicates

solicitation of sexual favours. Even in the context of entire chat, it

indicates that you were leading the victim towards solicitation of

sexual favours. Other reasons given by the Court to acquit you

interalia include initiation of the chat by PW-4, XXXX (the victim)

that she did not object to your chats, that the word ‘physical’ did

not have any sexual connotations and that the interpretation of

the chat by the victim was an afterthought. All these reasons

seem to skirt the core issue of sexual harassment by the chats by

24

negating the conversation which with no ambiguity or doubt that

the said conversation did have sexual orientation demanding

sexual favour. During cross-examination, PW-4 had stated that in

the word ‘physical education’, ‘physical’ means everything about

the physical activities i.e. mental, physical endurance, physical

exercises, etc. The Court quoted these words to say that even PW-

4 stated before the Court that word ‘physical’ did not have any

sexual connotation which was completely absurd and misleading.

The Court also doubted the authenticity of the chat between you

and PW-4 on the ground that Dr. M Bhaskar (PW-3) could not open

the Mobile Phone of PW-4 to show the chat to the Court, a copy of

which is already attached with the Report (Exhibit -'P') and that he

failed to submit the certificate u/s 65B of the Indian Evidence Act,

1872 with the Report which the Court found to be legal

requirement but the same was submitted afterwards. The Court

also reasoned that the chat record annexed with the Report

(Exhibit-'P') submitted by the Forensic Expert appeared to be

photographs of the chats in the Mobile only and this Report did

not mention IMEI number. However, the Court failed to appreciate

the fact that Dr. M Bhaskar (PW-3), the Forensic Expert stated

unambiguously before the Court that he retrieved the data of

WhatsApp chat which took place between Mobile Number 75893-

72373 and Mobile number 94192-95356 and got stored in the

Mobile Phone (Sony Xperia) of XXXX and annexed said data

details of the said WhatsApp chat with the Report (Exhibit-'P').

Since the chats were extracted from the Mobile Phone by a

specialized agency, mere non mention of IMEI number, when the

Mobile Phone or the Mobile Numbers were not in dispute, does not

25

otherwise affect the cogent evidence on record. Furthermore, at

the Revision Trial, when the expert witness opened the WhatsApp

chat stored in memory of said Mobile Phone, i.e. a Primary

Evidence before the Court and the Court duly satisfied itself about

the authenticity of the said WhatsApp chat stored in said Mobile

Phone which corroborates the direct evidence of XXXX (PW-4)

whereby, you had posted sexually colored messages through

WhatsApp demanding/ requesting sexual favours, the Court

ought to have revoked its earlier Finding on the Charge, but it

adhered to its earlier Finding rejecting the evidence on record on

mere technical grounds. In view of the evidence of Expert

describing the manner of extraction for arriving at his opinion,

negating such evidence merely on the basis of flimsical

observation by Court was not appropriate. In sum and substance,

the Finding or the Court on the First Charge is against the weight

of evidence. The Court having considered the observations raised

in Revision Order, adhered to its earlier Finding on the First

Charge. The Court has, however, not given any reason for its

disagreement with the issues raised in the Revision Order despite

its visit to work station of PW-3 at CFSL, Chandigarh and having

satisfied that there was no variation in the WahtsApp chat record

annexed with the Report (Exhibit-'P'), as alleged in the particulars

of the First Charge preferred against you, after having seen

WhatsApp chat on the Mobile at the workstation of PW-3 resulting

in grave miscarriage of justice(Copy of GSFC trial proceedings has

already been provided to you vide letter No 03/104/2015-

CLO/BSF/1739-41 dated 19

th

Aug’ 2019).

26

6. Whereas, in the light of above, DG BSF has found that the

reasons given by the Court in support of its Finding on the First

Charge are not in consonance with the evidence available on

record of the trial proceedings & thereby it's finding on the said

Charge is against the weight of evidence.

7. Whereas, "having gone through the Report of the Confirming

Authority as well as evidence available in Trial Proceedings,

Director General, BSF is of the view that there being no provision

for second revision of the Finding of the Court under the BSF Act,

1968 and the Finding of the First Charge having been not

confirmed being against the weight of the evidence, the trial on the

first charge has become inexpedient. In view of evidence available

in the Trial Proceedings with regard to the First Charge against

you, Director General BSF is further of the view that your further

retention in service is undesirable and is of tentative opinion that

your Services should be terminated in terms of Sec 10 of the BSF

Act, 1968 read with Rule 20(4)(c) of BSF Rules, 1969 by retiring

you from Service.”

36. Upon careful perusal of the show cause notice dated 31

st

December,

2020 particularly paragraphs 5, this Court does not find any specific

or sufficient reasons for not confirming the findings of the GSFC and

Revisional Court. The reason assigned in the said show cause notice

was simply indicated the evidence adduced before the GSFC in

respect of the First Charge are sufficient to hold him guilty.

27

37. The finding of the GSFC had been very clearly reflecting that the First

Charge could not be proved on the following grounds:

i) The alleged chats between the accused and P.W. 4 are not

authentic as P.W. 3 (Addl.), Dr. M. Basker was not able to open

the mobile of PW-4 to show the chat to the court;

ii) PW-3 (Addl.) failed to submit the required certificate under section

65B of Indian Evidence Act, 1872 with his report, which is a legal

requirement;

iii) He has not even mentioned the IMEI Number of the Mobile under

examination.

iv) The Court does not find any double meaning in the alleged chat as

it is the mere interpretation of PW4. The court also not believed

alleged word or chat conveyed any meaning showing that the

accused was demanding or requesting sexual favour from her and

ultimately declared him ‘Not Guilty’.

38. This Court is conscious that the writ court is not sitting in appeal to

analyse and appreciate evidence that was tendered before the GSFC.

However, in appropriate cases, a writ court has jurisdiction to

interfere with the action of the authority, when it is found to be mala

fide, perverse, arbitrary or unreasonable and a violation of the

principle of natural justice.

39. This court gains/gets support that it is settled law that the writ court

may, on the basis of admitted facts and circumstances, itself pass an

order or give directions which the Government or the public authority

28

should have passed or given had it properly and lawfully exercised its

discretion relying upon a particular paragraph no. 67 of the judgment

passed in the case of Sri Amiya Ghose Vs. The Union of India &

Ors.

5

.

40. In the present case, while it is true that the petitioner has replied to

the show-cause partly to the Director General, BSF, asking him to

supply relevant documents, reserving his right to make additional

submissions once the documents sought have been provided to him.

He also indicated in his reply that he was given DGCR even after the

alleged incident and the acquittal. He could not understand as to why

the show cause notice had been issued despite a detailed judicial

verdict by the Learned GSFC, which was in a much better position to

separate the grain from chaff during Trial as well as Revision, as

proposed by the concerned Authority of the BSF.

41. Section 106 of the BSF Act, 1968, is set out herein below:-

“106. Powers of Security Force Court in relation to proceedings under

this Act.—Any trial by a Security Force Court under the provisions of

this Act shall be deemed to be a judicial proceeding within the

meaning of sections 193 and 228 of the Indian Penal Code (45 of

1860) and the Security Force Court 26 shall be deemed to be a court

within the meaning of sections 480 and 482 of the Code of Criminal

Procedure, 1898 (5 of 1898).”

5

(2017) 1 CAL LT 1 (HC).

29

42. The aforesaid section clearly indicates that any Trial held by a

Security Force Court is deemed to be a judicial proceeding under

sections 193 and 228 of the Indian Penal Code. Section 106 grants

power to the Security Force Courts, that is equivalent to a court

under the Code of Criminal Procedure, 1898, for handling perjury

and contempt. Therefore, the final decision of the GSFC has some

probative value, and the findings are deemed relevant and

trustworthy enough to be admitted unless found perverse and ex

facie illegal.

43. It is not disputed that the Confirming Authority has confirmed the

findings of the court on the second and third charges after going

through the evidence available in the Trial proceedings. However, the

First Charge was not confirmed, as it was found to be against the

weight of evidence, although all three alleged charges levelled against

the petitioner were based on a similar set of facts and more or less

related to the same victim/complainant.

44. The writ petitioner had written several letters dated 11

th

January,

2021, 13, January, 2021, 15

th

January, 2021, 21

st

January, 2021 and

April, 2021 to the Director General, BSF copy to HQ SPl DG (EC),

Kokata, HQ. SPL DG (WC) Chandigarh and SHQ BSF Kolkata but

neither reply was given by any of the authority nor supply the

30

documents sought for by the petitioner is a wholly violation of

principle of natural justice. The Judgment relied upon by the

petitioner in the case of Union of India and Ors. Vs. No. 87250608

Head Constable Raj Kumar and Ors.

6

, particularly paragraph nos.

26, 27 and 28 are squarely applicable in the present facts and

circumstances as under: -

“26. No doubt, Section 108 is silent about following the principles

of natural justice and for putting the employee to notice in the

event of disagreement by the confirming authority but this

question is no more res integra. In Punjab National Bank vs.

Kunj Behari Misra, (1998) 7 SCC 84 the apex court dealt with a

case where the disciplinary authority disagreed with the finding

of enquiring authority and acted under regulation 7(2), whether

principles of natural justice are to be followed or not was the

point. It was poignantly held as under:

“19. The result of the aforesaid discussion would be that

the principles of natural justice have to be read into

Regulation 7(2). As a result, thereof, whenever the

disciplinary authority disagrees with the enquiry authority

on any article of charge, then before it records its own

findings on such charge, it must record its tentative

reasons for such disagreement and give to the

delinquent officer an opportunity to represent before

it records its findings. The report of the enquiry officer

containing its findings will have to be conveyed and the

delinquent officer will have an opportunity to persuade the

disciplinary authority to accept the favourable conclusion of

the enquiry officer. The principles of natural justice, as we

6

2025 SCC Online Cal 8165

31

have already observed, require the authority which has to

take a final decision and can impose a penalty, to give an

opportunity to the officer charged of misconduct to file a

representation before the disciplinary authority records its

findings on the charges framed against the officer.”

(Emphasis supplied)

27. In the case of Punjab National Bank (Supra) the court

considered its previous judgment in Ram Kishan vs. Union of

India (1995) 6 SCC 157 wherein it was held as under:

“10. The next question is whether the show-cause notice is

valid in law. It is true, as rightly contended by the counsel

for the appellant, that the show cause notice does not

indicate the reasons on the basis of which the disciplinary

authority proposed to disagree with the conclusions reached

by the inquiry officer. The purpose of the show-cause notice,

in case of disagreement with the findings of the inquiry

officer, is to enable the delinquent to show that the

disciplinary authoi8try is persuaded not to disagree with

the conclusions reached by the inquiry officer for the

reasons given in the inquiry report or he may offer

additional reasons in support of the finding by the inquiry

officer. In that situation, unless the disciplinary

authority gives specific reasons in the show cause on

the basis of which the findings of the inquiry officer

in that behalf is based, it would be difficult for the

delinquent to satisfactorily give reasons to persuade

the disciplinary authority to agree with the

conclusions reached by the inquiry officer. In the

absence of any ground or reason in the show-cause

notice it amounts to an empty formality which would

cause grave prejudice to the delinquent officer and

would result in injustice to him. The mere fact that in

the final order some reasons have been given to

disagree with the conclusions reached by the

32

disciplinary authority cannot cure the defect.”

(Emphasis supplied)

28. We find support in our view from the judgment of Ram

Kishan (Supra) and Punjab National Bank (Supra) and

therefore, inclined to hold that principles of natural justice must be

read into Section 108 of BSF Act when confirming authority

intends to hold an employee guilty by taking a different view than

the view taken by GSFC.”

45. The Second notice dated 26

th

April, 2021, was a glaring example of

perversity since it was issued without giving the opportunity of

hearing to the petitioner. The contents of the notice are stipulated

herein below in verbatim:

“SHOW CAUSE NOTICE FOR TERMINATION OF SERVICE

UNDER RULE 20(4)(C) OF BSF RULES, 1969

Please refer to your letter No. 2018-21 dated

15.01.2021, L/No. 2203-06 dated 25.01.2021, letter dated

01.02.2021 and letter dated 06.02.2021.

2. It is to inform that you were issued with SCN for

proposed termination of service under Rule 20 (4) (c) of BSF

Rules, 1969 on account of misconduct, which was found to be

inexpedient for disposal by holding disciplinary proceedings

against you. GSFC trial proceedings instituted against you

pertaining to such misconduct concluded as “Not Confirmed” in

respect of the First Charge of the said trial was relied upon in

the SCN. It is to mention that Findings and Sentence of GSFC

Trial are not valid unless confirmed by the Confirming

33

Authority. In the SCN at para 8, a case regarding issuance of

IG’s displeasure has also been mentioned, which has already

been issued to you on 04.11.2010. Further vide FHQ BSF (Law

Branch) letter No. 3/104/2015-CLO/BSF/1739-41 dated

19.08.2019 you have been provided with the copy of GSFC

Trial proceedings including the proceedings on Revision as well

as the Findings of the Court instituted against you.

3. DG BSF having carefully considered the matter has

taken a tentative decision for termination of your services under

Rules 20(4)(c) of BSF Rules, 1969. The details behind such

decision including inexpediency of further trial have been

elicited in the above mentioned SCN and same may be referred.

As regards the details of examination of ROE proceedings and

recommendations as per your letter dated 13.01.2021, you are

also informed that based on the evidence adduced against you

in the RoE proceedings, GSFC trial was instituted against you.

Hence, the RoE proceedings or the recommendations on the

same are of no relevance to the SCN issued to you.

4. The grounds or reasons leading to decision for proposed

administrative termination of your service have adequately

been covered in the above said SCN itself. Further, your queries

and requirements of documents raised vide your letter No.

Pers/RK/GSFC/2021/2018-21 dated 15.01.2021 are clarified

as above. In view of above, your request for additional

documents in connection with the Show Cause Notice served

upon you, is devoid of merit.

34

5. In view of above, you are directed to submit your reply

to the Show Cause Notice issued vide letter No. C-

14011/08/2019/CC/Pers/BSF/21469-74 dated 31.12.2020

within 15 days of receipt of this letter, failing which ex-parte

decision will be taken.”

46. Rule 22(2) makes it obligatory for the competent authority to inform

the delinquent official of all adverse reports and call upon him to

submit in writing his explanation. Sub-Rule 3, in no uncertain terms,

makes it clear that after considering the defence of the employee, a

decision to dismiss or remove him may be taken. The lawmakers have

employed the word “may” with a view to giving discretion to the

competent authority to take a decision whether or not the employee

should be dismissed or removed. Importantly, such a decision needs

to be taken in a judicious way by considering the explanation and

defence of the employee. This legislative intent and quasi-judicial

discretion given to the authority is taken away in the instant case by

issuing a subsequent notice, apparently and manifestly premeditated,

pre-judged, close-minded, an empty formality and eye wash.

Consequently, the same is unsustainable in law and liable to be set

aside.

47. Ordinarily, when the show cause notices are set aside, the proper

course is to remand the matter to the concerned authority to proceed

35

afresh by issuing a fresh notice to show cause and to take its logical

conclusion in accordance with law. However, this court is of the view

that such remission is neither proper nor required in the present

situation, since the petitioner is going to retire from service this

month, i.e., March, 2026, as disclosed by the parties at the time of

argument.

48. Consequently, WPA No. 10487 of 2021 stands allowed without

order as to costs. The show cause notices dated 31.12.2020 and

26.04.2021 are hereby set aside. Accordingly, it is directed that the

petitioner shall be entitled to all consequential benefits admissible in

accordance with law as expeditiously as possible, preferably within

four weeks.

49. CAN 1 of 2022 and all connected applications, if any, are also, thus,

disposed of.

50. Interim order, if any, stands vacated.

51. Parties shall act on the server copies of this Judgment duly

downloaded from the official website of the High Court at Calcutta.

36

52. Urgent Photostat certified copies of this Judgment, if applied for, be

supplied to the parties upon compliance of all the necessary and legal

formalities.

[AJAY KUMAR GUPTA, J.]

P.A.