UNION OF INDIA Vs. ASHOK KUMAR

JUDGEMENT

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

(2.) Both these appeals have matrix in a judgment rendered by a Division Bench of the Jammu and 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.

(3.) 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 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.