UNION OF INDIA Vs. ANIL KUMAR BAJPAI

JUDGEMENT

(1.) Union of India represented by the Director General, Border Security Force (D.G., BSF in short) and others have preferred the instant writ appeal assailing the legality and validity of the judgment and order dated 10.3.1998 passed by the learned Single Judge in Civil Rule No. 5 (SH) 96 whereby the learned Single Judge allowed the writ petition by setting aside the guilt of the writ petitioner and subsequent punishment awarded to him vide order dated 30.11.91 and the confirmation order dated 27.2.92 alongwith the order dated 16.10.95. The Court has further directed the respondents (Union of India & Ors.) to give to the petitioner his promotional seniority on the post which he had occupied at the time of trial and punishment, with effect from the date when he was actually promoted and not from the date as was ordered by the General Security Force Court (GSFC) sentence dated 30.11.91. The learned Single Judge had further ordered that the petitioner shall be entitled for his promotional claims on the next higher post or posts on the basis of his original seniority. However, the learned Single Judge has held that those directions are subject to respondent's right to initiate fresh proceedings for punishing the petitioner on the charge he was earlier tried subject to permissibility of the same under the law.

(2.) In order to understand the rival contentions raised in the writ appeal, it is apposite to state the facts leading to the filing of the writ petition and the relief sought for, challenging the legality of the impugned order imposing punishment of predating of his promotion by 3 years awarded by the GSFC. The writ petitioner while serving as Assistant Commandant in 27 Bn. BSF during the period from 1981 to June, 1983 was then stationed at Rajouri (J & K). During that period, the petitioner was looking after the construction, repair and maintenance works of the Battalion as per verbal orders of the Commandant under 2 I/C of the Battalion who was overall in-Charge of construction. While the petitioner was away to Delhi in connection with an advance training during the period from 27.7.1981 to 28.12.1981, a sum of Rs.7500/ was placed at the disposal of the Battalion for providing one M.S. Tank for the ORS Mess by the HQ DIG, BSF, Rajouri. Administrative approval and expenditure sanction for Rs. 7500/- was issued accordingly. Thereafter the quotations were invited and four firms submitted their quotations. The rates of the 1800 M.S. Tank quoted, by three firms only as per comparative statement and quotations were as follows: 1) M/s. Bee Kay Traders : Rs. 4950/- each 2) M/s. Sitaram and Sons : Rs. 4940/- each 3) M/s. Arolite Agency : Rs.-5000/- each

(3.) The authority accepted the rates of M/s. Sitaram & Sons being the lowest tenderer. The petitioner thereafter signed the supply order on 20.2.82 as per the rates shown in the comparative statement and the approved by the Offg. Commandant. Accordingly the firm supplied the stores including the M.S. Tank which was received on 24.2.82 and surveyed by a committee on 26.2.82 and taken on charge in the ledger against bill No. 424 dated 23.2.82 submitted by the firm for Rs. 6,440.70P in which the price of M.S. Tank was shown at Rs. 4,940/-. The bill with stocks certificate was submitted to the Commandant by the petitioner and the same was passed for payment by the Commandant and an advance of Rs. 6200/- was sanctioned by the Offg. Commandant and the: amount of advance was received by the petitioner on 3.3.82 and issued a receipt for Rs.6,440.70/- dated 3.3.82. An adjustment contingent bill for Rs. 1,262/- against the total advance of Rs. 7500/- drawn including the amount of Rs. 6440.70 paid to M/s. Sitaram & Sons was prepared and after pre-audit by the unit Accountant was passed by the D.D.O. and countersigned by the Commandant on 23.1.83 and the balance of Rs. 238/- returned to BSF HQrs., New Delhi.