Adverse Remarks In Appraisal Report For Carrying Weapons To Quarters, Delhi High Court Dismisses Petition

Background

The Petitioner was appointed as a sailor in the Indian Navy on 27.07.2004. During his service, he applied for the post of Assistant Commandant in the Central Armed Police Forces and on 20.10.2011, he joined the Border Security Force. From 20.11.2011 to 14.10.2012, he undertook Basic Training at the BSF Training Centre in Tekanpur. On 15.11.2012, he was posted to 63 Bn B.S.F. Melteram under Frontier B.S.F.M&C where he served till 04.05.2013. During this time, he got married and lived with his wife at the place of his posting.

The Petitioner's wife allegedly lived with him for only 24 days and left the government quarters to appear in exams. Later she found out about her pregnancy, however, went through an abortion without consulting the Petitioner. She came to live with the Petitioner again but left in some time without giving any reasons.

On 20.06.2014, the wife of the Petitioner filed a complaint in the office of the SPL. It was alleged in the complaint that the Petitioner carried a service revolver to his residence and tried to kill her.

The Commandant of the 158 Bn B.S.F sought a factual report regarding the alleged incident and also ordered a detailed inquiry into the matter. Meanwhile, the Deputy Inspector issued an Order on 22.07.2014 wherein a Staff Court of Inquiry was directed against the petitioner in relation to the allegations levelled against him by his wife.

The allegations of having tried to kill his wife were not proven against the Petitioner. However, it was stated in the Staff Court of Inquiry that the Petitioner had carried the pistol to the government quarters which was contrary to the instructions. It was concluded that disciplinary action should be taken against the petitioner.

A Show Cause Notice was issued to the Petitioner to which he sent a reply stating that being new to the force, he had no knowledge of the rules and the SOP regarding not keeping a weapon with him in the government quarters.

Later the Reporting Officer of the Petitioner supplied the Annual Performance Appraisal Report of the Petitioner stating that the Petitioner was a fit person with good communication skills and should have taken Deptt SOPs and instructions seriously. The Petitioner submitted a representation against the adverse remarks but the same was rejected.

The Director General (East) B.S.F. Kolkata, West Bengal observed that the remarks attached to the Petitioner were affirmatory as evidence on record and there was no ground to interfere with the gradings. Later, another representation was made to the Director General B.S.F., CGO Complex, New Delhi which was also dismissed.

Ultimately, the Petitioner approached the High Court.

Contentions of the Parties:

The Counsel for the Petitioner argued that by Order dated 22nd/23rd July, 2014, the Staff Court of Inquiry was only required to look into the allegations levelled against the Petitioner, however, acting beyond its powers, it recommended disciplinary measures against the petitioner, going beyond its jurisdiction.

Submitting further that there was no specific instruction prohibiting the keeping of a service weapon at the residential quarter, the Counsel stated that even in the Show Cause Notice, no such instructions were mentioned. The Counsel argued that since there was no specific instruction, no Advisory could be issued against the Petitioner.

He also stated that it was normal for personnel to keep their service weapon for safety considering the exigency of service while the Personnel was posted at a Border Out Post.

Accordingly, it was asserted by the Petitioner's Counsel that the DG's Displeasure and the Impugned Advisory issued to the petitioner were contrary to law and hence liable to be set aside along with the adverse remarks in the Petitioner's APAR.

On the other hand, the Counsel for the Respondent asserted that it was found in the SCOI that the petitioner had kept a weapon with him in the government quarter, which was prohibited as per the instructions and thus there was no fault in the SCOI giving its opinion or report to the Competent Authority.

Asserting that the Petitioner in his reply to the Show Cause Notice never mentioned the absence of 'clear instructions', the Counsel held that the Petitioner had admitted to having carried the weapon to his Government Quarters by mistake owing to being new to the post. The Counsel stated it was for the first time the Petitioner had contended that there was no clear instruction.

The Counsel also produced the instructions in which it was clear that all personnel could keep their personal weapon or ammunition depending on the operational/maintenance need only. Moreover, the weapons/ammunitions had to be deposited in Kotes/magazines for the remaining period. In addition to this, a special procedure was prescribed for a weapon to be kept for a longer duration by personnel but generally the Personnel was required to deposit the weapon at the Kotes/magazine after completing his duty.

It was further argued that before issuing DG's Displeasure and rejecting the petitioner's representation against his APAR, the Petitioner's reply to the Show Cause Notice as well as the representation against the Advisory issued in the APAR were duly considered by the Competent Authority.

The Counsel stated that no statutory rules or instructions were violated by the respondents and therefore the Petition was liable to be dismissed.

Findings of the Court:
The Court accepted that SCOI was only required to investigate the allegation against the petitioner where it was alleged that he tried to kill his wife. However, since it was found that the petitioner was keeping the service weapon with himself at his residence, the SCOI could not ignore such a significant finding merely on the ground of not having to inquire any further, the Court held.

In relation to the confusion regarding whether the instructions were clear or not, the Court held that the instructions placed before the Court by the Counsel for the Respondents clearly mentioned that not only were the weapons to be deposited at Kotes/magazines every time the officer completed his duty, but also a procedure was to be followed in case the weapon was handed over to the officer for longer duration of over 24 hours and special entry in this regard was to be made and special permission in this regard was to be obtained.

Stating further that 'ignorance of law was no excuse', the Court held that the Officer held an important position and was expected to have been aware of all the instructions especially with regard to his service weapon.

Making these submissions, the Court dismissed the Petition.

Case Title: Rohit Singh vs. Union of India & Ors

Counsel for the Petitioner: Mr.Ankur Chhibber, Mr.Anshuman Mehrotra and Mr. Nikunj Arora, Advs.

Counsel for the Respondent: Mr. Jaswinder Singh and Ms.Shipra Shukla, Advs.

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