2005 (10) TMI 536 - SC - Indian Laws

Whether 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)?

Summary

Issues Involved:
1. Violation of provisions under Section 10 of the Border Security Force Act, 1968, and Rule 20 of the Border Security Force Rules, 1969.
2. Legitimacy of the removal of the delinquent officer from service.
3. Jurisdiction and authority of the Central Government and Director-General in terminating the officer's service.
4. Application of mind and allegations of mala fides in the decision-making process.

Detailed Analysis:

1. Violation of Provisions under Section 10 of the Act and Rule 20 of the Rules:
The High Court held that the removal of the delinquent officer from service violated Section 10 of the Border Security Force Act, 1968, and Rule 20 of the Border Security Force Rules, 1969. The Court noted that the Central Government did not record satisfaction that it was inexpedient and impracticable to hold an inquiry, nor did it form an opinion that the officer's further retention in service was undesirable, as required by the provisions.

2. Legitimacy of the Removal from Service:
The removal was based on several charges, including falsely showing presence at the scene of operation, failure to report seized items accurately, and suppression of information regarding seized weapons and gold ornaments. The Director-General recorded satisfaction that material witnesses would not be available, making the trial impracticable. The delinquent officer was given a show-cause notice, and after considering his reply, the Director-General recommended his removal, which was approved by the Home Minister and the Central Government.

3. Jurisdiction and Authority:
The High Court concluded that only the Central Government could act under Rule 20, not the Director-General. The Supreme Court disagreed, stating that both the Central Government and the Director-General could act in different situations under Rule 20. The expression "as the case may be" indicated that either authority could take action depending on the circumstances. Therefore, the High Court's conclusion that only the Central Government could determine the impracticability of holding a trial was incorrect.

4. Application of Mind and Allegations of Mala Fides:
The High Court found that there was independent application of mind in passing the removal order. The Supreme Court upheld this finding, noting that the entire file indicated independent consideration beyond the Desk Officer's opinion. The allegations of mala fides were not pressed before the High Court and lacked clear proof. The burden of proving mala fides was heavy, and the delinquent officer failed to meet this burden.

Conclusion:
The Supreme Court allowed the appeal filed by the Union of India, setting aside the High Court's judgment that contradicted the learned Single Judge's analysis of Rule 20. The appeal by the delinquent officer was dismissed for lack of merit. Both parties were directed to bear their respective costs.