Sikkim High Court: In a case wherein at petition was filed to challenge the impugned order of compulsory retirement of July 2020 and impugned office memorandum of December 2022 (order in appeal) by which the appeal preferred by the petitioner was rejected by the respondent, Bhaskar Raj Pradhan, J.*, was of the view that no case had been made out by the petitioner to invoke the judicial review jurisdiction of this Court against the compulsory retirement order and the order in appeal rejecting appeal. It was also pointed out that in a Force constituted for ensuring the security of the borders of India discipline was paramount and the writ court would hesitate from interfering in exercise of the discretionary jurisdiction of the authorities constituted and appointed under the Indian Tibetan Border Police Force Act, 1992 (‘ITBPF Act’) and the Indo-Tibetan Border Police Force Rules, 1994 (‘ITBPF Rules’) unless it was shown that the exercise of power was unconstitutional, arbitrary or perverse.
Background
The petitioner was working as a constable in Indo-Tibetan Border Police Force (the Force) since 2007. The petitioner alleged that once, while he was on duty, a sports coordinator met him at the Advance Station along with some of his friends, celebrating a birthday and having consumed alcohol. Thereafter, there was verbal and violent altercation between them, and the sport coordinator reported the incident to the higher authority. Subsequently, the petitioner was served with show cause notice. The petitioner tendered his apology in writing and pursuant to the show cause notice and his written apology, the compulsory retirement order was issued. Thereafter, the petitioner filed an application under Rule 28 of the ITBPF Rules. Upon not receiving any response, the petitioner again sent a letter seeking the status of his case. Later, the petitioner received a letter from the respondents informing him that his appeal was dismissed reiterating that necessary investigation had been done before issuing the compulsory retirement order and that the appeal was devoid of merit. Thus, the petitioner filed a writ petition before this Court challenging the impugned order of compulsory retirement.
Submissions on behalf of the Petitioner
The petitioner contended that he was never provided with any opportunity of hearing before he was compulsorily retired. Although the departmental memorandum of 2020 informed the petitioner that necessary investigation had been done before the impugned order of compulsory retirement, the petitioner submitted that no such investigation had been made.
Analysis, Law, and Decision
The Court observed that the compulsory retirement order details the numerous instances of indiscipline committed by the petitioner over a period of time. It included various offences and punishments undergone for the years 2013, 2014, 2015, 2016 and 2019; and details the various opportunities given to him to improve. The Court noted the various instances of repeated indiscipline committed by the petitioner which led to the judicial committee being constituted. The Court opined that a perusal of the compulsory retirement order did not reflect that he was compulsorily retired only because he admitted to his guilt in his reply to the show cause notice.
The Court observed that the challenge to the compulsory retirement order in the writ petition was not on merits but only on technical and peripheral grounds. Further, it observed that the ITBPF Act was an act to provide for the constitution and regulation of the Armed Force of the Union, including the conditions of service of the members of the force regarding dismissal, removal, or reduction of any person by the Director General and by other Officers. Pursuant to the same, the Court found that respondents, as affirmed by Rule 25 of ITBPF Act, rightly called upon the petitioner to retire, resign, or on refusal, be compulsorily retired or discharged from the service on the ground of unsuitability.
The Court opined that in writ proceedings, the court was required to correct errors of law, procedural errors leading to manifest injustice or gross violations of principles of natural justice, thus, this Court could not examine the correctness of the allegation made by the petitioner regarding other persons who were not before this Court. The Court further opined that in a Force constituted for ensuring the security of the borders of India discipline was paramount and the writ court would hesitate from interfering in exercise of the discretionary jurisdiction of the authorities constituted and appointed under the ITBPF Act and the ITBPF Rules unless it was shown that the exercise of power was unconstitutional, arbitrary, or perverse.
Thus, this Court dismissed the petition and held that no case had been made out by the petitioner to invoke the judicial review jurisdiction of this Court against the compulsory retirement order and the order in appeal.
[Chandan Bikomiya Deori v. State of Sikkim, 2023 SCC OnLine Sikk 80, decided on 21-08-2023]
*Judgement authored by Justice Bhaskar Raj Pradhan
Advocates who appeared in this case :
For the Petitioner: Ms. Rachhitta Rai, Advocate
For the Respondents: Ms. Sangita Pradhan, Deputy Solicitor General of India assisted by Ms. Natasha Pradhan and Ms. Purnima Subba, Advocates
