http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9

CASE NO.:

Appeal (civil) 4792 of 1999

PETITIONER:

U.O.I. & Ors.

RESPONDENT:

Ashok Kumar & Ors.

DATE OF JUDGMENT: 18/10/2005

BENCH:

ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT:

J U D G M E N T

[With C.A. No.6389/2005 (Arising out of S.L.P.(C) No.21363/2005

CC No.6855 of 1999]

ARIJIT PASAYAT, J.

Leave granted in S.L.P.(C) 21363/2005 @ CC No.6855 of 1999.

Both these appeals have matrix in a judgment rendered

by a Division Bench of the Jammu & Kashmir High Court in a

Letters Patent Appeal filed by Ashok Kumar, the respondent

in Civil Appeal No. 4792 of 1999 and the appellant in the

connected appeal. For the sake of convenience said Ashok

Kumar is described hereinafter as the 'delinquent officer'.

By the impugned judgment the High Court held that the

removal of the delinquent officer from service was in

violation of the provisions contained in Section 10 of the

Border Security Force Act, 1968 (in short '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

presence at the scene of operation with a view to claim

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9

undue credit of achievements of the operation. Full quantity

of seized articles was not reflected in the report. 31 major

weapons were recovered but only 22 were shown. Two pistols,

five AK-56 rifles, one rocket launcher and one Telescopic

Rifle were not shown in the list of ammunition. Out of 31

gold ornaments 25 pieces were not shown in the list of

seized articles. Second situation Report was also sent, but

the same also did not reflect recovery of complete articles.

To cover up these lapses another encounter was shown to have

taken place and a report regarding fake encounter was sent

vide No.0-7209 which indicated the recovery of some gold

ornaments. Another report was also sent from office of

delinquent officer declaring goods which were not declared

earlier. It was admitted that recovery of some weapons was

not reflected in earlier report.

Therefore, a Staff Court of Inquiry was ordered to be

held on 16th May, 1992 and the delinquent officer was

found responsible for following act of omission and

commission:

(a) Falsely showing his presence at the scene of

operation and search.

(b) Failure to make any observations regarding serious

omissions and discrepancies in the unit site

report and detailed report.

(c) Suppression of information regarding seizure of

six weapons out of nine which were not declared by

the Commandant.

(d) Suppression of information regarding seizure of

household items.

(e) Suppression of information regarding seizure of a

substantial quantity of gold ornaments.

(f) Failure in supervisory duties by not giving

expected directions to the Commandant in regard to

accounting and disposal of seized items.

On 18.9.1992 Director General recorded his satisfaction

that the material witnesses connected with case will not be

available and as such the trial of the delinquent officer

before Security Force Court was inexpedient and

impracticable and opined that further retention of the

delinquent officer in service was undesirable.

On 23/25.9.1992 show-cause notice was served upon the

delinquent officer as to why his services be not terminated

in accordance with Rule 20 of the Rules. On 31.10.1992 he

sent reply to the show cause notice. On 13.1.1993 Inspector

General found that there was adequate evidence both oral and

documentary to prove the various charges against 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9

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

imposition of penalty against the other

delinquent officers".

The Home Minister considered the entire record of the

case including the recommendations of the desk officer,

Director General, Minister of State's opinion and

thereafter, recorded his own opinion. Home Minister accorded

his approval as under:-

"We may first remove him from service

and also not being eligible for pension

looking to the nature of the offence, I

don't think this will be sufficient

punishment. We may also prosecute him

so that it may have deterrent effect."

By order dated 1.6.1993 Government of India in exercise

of power conferred under Section 10 of the Act read with

Rule 20(5) of Rules removed the delinquent officer from the

services without pensionary benefits with immediate effect.

The delinquent officer filed a Writ Petition no.663 of

1993 in the High Court of Himachal Pradesh challenging the

order dated 1.6.1993 whereby he was removed from service

without pensionary benefits. The writ petition was dismissed

by the Himachal Pradesh High Court by order dated 3.9.1997

on the ground that it had no jurisdiction to deal with the

writ petition. Thereafter, the delinquent officer filed a

Writ Petition no.1277/1997 in the Jammu and Kashmir High

Court. An interim order was passed on 3.9.1997 directing

the respondents in the writ petition to treat the writ

petitioner to be in service with all service benefits as he

was enjoying till 2.9.1997. By order dated 5.2.1999 the

learned Single Judge dismissed the writ petition. The

learned Single Judge's conclusions are essentially as

follows:-

(i) Plea of res-judicata cannot be accepted.

(ii) Delinquent officer was given full and

reasonable opportunity in the Court of

Inquiry which was conducted in terms of

Chapter XIV of the Rules, and he was found

guilty of six lapses.

(iii)The view formed by Competent Authority to

dispense with holding of General Security

Force Court was on the basis of material on

record.

(iv) The decision to remove delinquent officer

from service was not actuated by malafide

consideration.

(v) Decision taken by Home Minister suffered from

no infirmity, and against him no malice has

been shown.

(vi) Rules of business which required matter to be

placed before President of India are not

applicable to the delinquent officer."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9

Letters Patent Appeal was filed by delinquent officer

against 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 satisfaction to the effect that it is

inexpedient and impracticable to hold inquiry nor

formed any opinion that his further retention in

service is undesirable, for terminating the

services under Rule 20 of Rules.

The Division Bench by the impugned judgment concurred

with the findings expressed by the learned Single Judge so

far as first three points are concerned. So far as the

fourth point is concerned it was held that the Central

Government was required to record satisfaction that it was

inexpedient and impracticable to hold inquiry, and to form

opinion relating to delinquent officer for retention in

service. According to the High Court the delinquent officer

had been removed from the service without following the

provisions of Section 10 of the Act and Rule 20 of the

Rules. The High Court noticed that two authorities are

authorized to act under Rule 20 of the Rules. The procedure

to be followed to terminate the services of an officer is

available under Section 10 of the Act by the Central

Government on account of misconduct. The expression "as the

case may be" relates to the action to be taken by the

Central Government and the action to be taken by the

Director General. It was held that both the authorities did

not have concurrent jurisdiction; otherwise the expression

"as the case may be" would be rendered surplus and

meaningless. Reference was made to Section 19 of the Army

Act, 1959 (in short 'Army Act') and Rule 14 of the Army

Rules 1954 (in short 'Army Rules'). It was noted that the

language was in pari materia, except the words "as the case

may be" with corresponding Section and Rule of the Act and

the Rules respectively. Therefore, it was held that use of

expression "as the case may be" is significant and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9

indicative of two different spheres of activity for two

different authorities. The Director General was not the

appointing authority of the delinquent officer and,

therefore, it was held that only the Central Government

could have taken action and not the Director General. It was

incumbent upon the Central Government to record satisfaction

that it was inexpedient and impracticable to hold trial,

before the jurisdiction to take further action could be

assumed.

In support of the appeal filed by the Union of India

learned Additional Solicitor General submitted that the

Division Bench of the High Court has failed to take into

account 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 service of an officer under

Section 10 on account of mis-conduct, he

shall be given an opportunity to show cause

in the manner specified in sub-rule (2)

against such action:-

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

of 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9

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 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 Central Government with the

Officer's defence and 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 the

Central Government under the provision of

sub-rule (2) or sub-rule (3), the Director-

General shall make his recommendations

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."

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9

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 statement of witnesses) if any, which is

intended to be used against the delinquent officer in cases

where allegations have been investigated. The concerned

officer is given opportunity to submit his explanation and

defence. Proviso to sub-rule (2) makes it clear that

Director-General may withhold disclosure of such report or

portion thereof if he is of the opinion that the disclosure

is not in the interest of the security of the State. Sub-

rule (3) relates to consideration of the explanation

furnished by the concerned officer and the conclusions of

the Director-General on consideration of the explanation.

Either when the explanation is considered unsatisfactory by

the Director-General or where it so directed by the Central

Government, the case shall be submitted to the Central

Government with the Officer's defence and the recommendation

of the Director-General as to the termination of the

officer's service in the manner provided in sub-rule (4).

When a case is submitted to the Central Government under the

proviso to sub-rule (2) or sub-rule (3), the Director-

General is required to make recommendation whether the

officer's service should be terminated and, if so, which of

the four alternatives provided should be adopted. Sub-rule

(5) deals with consideration of the reports and defence of

the officer by the Central Government or judgment of the

Criminal Court, as the case may be, and the recommendation

of the Director-General. The Central Government may pass the

order in terms of any of the alternatives indicated in the

sub-rule (5).

The High Court is plainly in error in holding that it

is only the Central Government which is competent to act in

terms of sub-rule (2). Expression "as the case may be" is

otherwise rendered superfluous. Both the authorities can act

in terms of sub-rule (2). High Court overlooked the salient

factor that any other interpretation would render reference

to the Director-General meaningless.

A bare reading of Rule 20 makes the position clear that

both the Director-General and the Central Government can act

in different situations and consideration by the Director-

General is not ruled out. Sub-rule (3) makes the position

clear that the explanation is to be considered by the

Director-General and only when it is directed by the Central

Government, the matter shall be submitted to the Central

Government with the officer'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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9

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 looking at sub-rule (2). Where

report of the officer's misconduct is made by the Director-

General, the matter is to be placed before the Central

Government and in all other cases the consideration is by

the Director-General.

The words "as the case may be" means "whichever the

case may be" or "as the situation may be". (See Shri

Balaganesan Metals v. M.N. Shanmugham Chetty and Ors.

1987 (2) SCC 707). The expression means that one out of the

various alternatives would apply to one out of the various

situations and not otherwise.

Therefore, the High Court's conclusions that Central

Government is the only authority to consider the matter

whether holding of trial is inexpedient or impracticable is

clearly indefensible.

Coming to the conclusion whether there was application

of mind, the High Court had perused the concerned file and

come to the conclusion that there was independent

application of mind in passing the order of removal.

Though in the appeal filed by the delinquent officer the

order of removal is assailed on the ground that only the

Desk Officer's opinion was endorsed without application of

mind, we do not find the situation to be so. Copies of the

entire file were produced before us. It is clearly

indicative of the fact that though the Desk Officer's

opinion was noted, there was independent application of mind

and, therefore, the plea of the delinquent officer that the

order suffers from the vice of non-application of mind is

clearly untenable. Similarly, we find the plea of mala-

fides does not appear to have been pressed before the High

Court, and grievance related to other respondents and the

personal allegations of mala-fides do not appear to have

been urged.

Doubtless, he who seeks to invalidate or nullify any

act or order must establish the charge of bad faith, an

abuse or a misuse by the authority of its powers. While the

indirect motive or purpose, or bad faith or personal ill-

will is not to be held established except on clear proof

thereof, it is obviously difficult to establish the state of

a man's mind, for that is what the employee has to establish

in this case, though this may sometimes be done. The

difficulty is not lessened when one has to establish that a

person apparently acting on the legitimate exercise of power

has, in fact, been acting mala fide in the sense of pursuing

an illegitimate aim. It is not the 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9

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 Ors. (1976 (1) SCC 800) mala

fide is the last refuge of a losing litigant.

That being so, the delinquent officer's appeal is sans

merit.

The inevitable conclusion is that the appeal filed by

the Union of India deserves to be allowed. The judgment of

the Division Bench taking the view contrary to that of

learned Single Judge in its analysis of Rule 20 deserves to

be set aside, which we direct. Similarly, the other appeal

filed by the delinquent officer lacks merit and is

dismissed. In the peculiar circumstances of the case,

parties are directed to bear their respective costs.

27273