UNION OF INDIA AND ORS. versus ASHOK KUMAR AND ORS.

Citation: [2005] SUPP. 4 S.C.R. 317 · Decided: 18-10-2005 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

UNION OF INDIA AND ORS. 
v. 
ASHOK KUMAR AND ORS. 
OCTOBER ! 8, 2005 
[ARIJIT PASAYAT AND C.K. THAKKER, JJ.] 
Service Law: 
Border Security Force Rules, 1969: 
Rule 20-Misconduct-Termination of service of Officers-By Central 
. Government-During raid in the hideout of militants two militants 
apprehended-Huge quantity of arms, ammunitions and explosives and 
A 
B 
c 
. household articles including gold ornaments were recovered-Delinquent 
Officer, though not present on the spot, had falsely shown his presence at the D 
scene of operation and search-Recovery of arms, ammunition, gold ornaments 
etc. not reflected in seizure report sent to higher authorities-To cover up 
these lapses a fake encounter was staged and a report sent indicating recovery 
of some gold ornaments-A Staff Court of inquiry found delinquent Officer 
responsible for act of omission and commission-Director General BSF called 
upon delinquent Officer to resign on the ground that trial by Security Force E 
Court was inexpedient and impracticable-Central Government .removed 
delinquent Officer from service without pensionary benefits under S. I 0 r!w R. 
20(5)-High Court held that only Central Government could form the opinion 
that trial was inexpedient or impracticable and not the DG BSF and, therefore, 
removal of delinquent Officer from service was in violation of S. IO' r!w R. F 
20(5)-Correctness of-Held: Both the Central Government and DG BSF can 
act in terms of Rule 20(2)-Therefore, the High Court's conclusion that the 
Central Government is the on£v authority to decide whether trial is inexpedient 
or impracticable is clearly indefensible-High Court's judgment set aside-
Border Security Force Act, 1968, S. 10-Army Act. 1950, S. 19-Army Rules, 
1954, R. 14. 
G 
Word and Phrases: 
"As the case may be "-Meaning of-Jn the context of Rule 20(2) of the 
Border Force Rules, 1969. 
317 
H. 
" 
318 
SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R. 
A 
The respondent-delinquent Officer being the Deputy Inspector 
General Border Security Force (BSF) was having supervisory power over 
the Commandant who raided the hideout of militants. During the raid two 
militants were apprehended and huge quantity of arms, ammunitions and 
explosives and household articles including gold ornaments were 
B recovered. The recovery of arms, ammunition and explosives and gold 
ornaments were not reflected in the seizure report sent to the higher 
authorities. The respondent, though not present at the spot, had falsely 
shown his presence at the scene of operation and search with a view to 
claiming undue credit of achievements of the operation. To cover up these 
lapses another encounter was shown to have taken place and a report 
C regarding the fake encounter was sent, which indicated the recovery of 
some gold ornaments. 
Thereafter, a Staff Court of Inquiry was held and the delinquent 
Officer was found responsible for various acts of omission and commission. 
The Director General BSF opined that it was neither expedient nor 
D practicable to conduct the trial of the respondent-delinquent Officer by a 
Security Force Court and, therefore, under Rule 20(4) of the Border 
Security Force Rules, 1969 recommended to the Central Government that 
the respondent be called upon to resign from service. 
The Government of India in exercise of power conferred under 
E Section IO of the Border Force Security Act, 1968 read with Rule 20(5) of 
the Rules removed foe delinquent Officer from services without pensionary 
benefits. 
However, the High Court held that the removal of the delinquent 
F Officer from service was in"violation of the provisions contained in Section 
I 0 of the BSF Act read with Rule 20 of the BSF Rules. Hence the appeal. 
Allowing the appeal, the Court 
HELD: I. The High Court is plainly in error in holding that it is 
G only the Central Government which is competent to act in terms of Rule 
20(2) of the Border Security Force Rules, 1969. The expression "as the 
case may be" would otherwise be rendered superfluous. Both the Central 
Government and the Director General BSF can act in terms of Rule 20(2). 
The High Court overlooked the salient factor that any other interpretation 
would render reference to the Director General meaningless. [328-B] 
H 
r 
•· 
.,,__ 
U.0.1. v. ASH OK KUMAR 
319 
2. A bare reading of Rule 20 makes the position clear that both the A 
Director General and the Central Government can act in different 
situations and consideration by the Dir

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