New Delhi: In a unique case, the Himachal Pradesh High Court has come to the rescue of an Indo-Tibetan Border Force (ITBP) constable who was allegedly forced to enter into sexual relations with his senior’s wife, and was filmed during the act.
Making it clear that a junior constable cannot be removed from service if he was acting on his superior’s instructions, the Himachal Pradesh High Court has granted relief to an Indo-Tibetan Border Force (ITBP) constable who was removed from service in 2010 for sexual relations with the wife of an assistant commandant.
A bench of Chief Justice Gurmeet Singh Sandhawalia and Justice Bipin Chander Negi took note of the statements given by the assistant commandant’s wife, and said, “The statements of the wife recorded in both the proceedings (husband’s divorce plea and wife’s complaint), which are exactly similar and where she has stated that her husband had given her liquor against her consent and forced the appellant to perform illicit acts with her and made a film of the same and then threatened her with dire consequences not to reveal the same.”
However, the court also noted that discipline and character are the backbone of the Indo Tibetan Border Police and “all serving the force are expected to act and behave in a manner befitting their respective positions”.
In the present case, the court was acting on the constable’s challenge to a 2018 judgment passed by a single judge bench of the Himachal Pradesh HC, where he was removed from service. The constable had joined the force in 1999 and was posted in Leh, Ladakh, from 2006 onwards. In 2009, he was transferred to Reckong Peo in Himachal Pradesh, where he was accused of having illicit relations with his superior’s wife. The superior was an assistant commandant, and the petitioner was posted as a security assistant at his residence.
The same year, after two years of marriage, the assistant commandant asked his wife for a divorce. The wife then filed a complaint with the Director General of ITBP, accusing her husband of sexual, mental and physical harassment and recording of sexual acts.
After this, the constable (named in assistant commandant wife’s complaint) was also tried by the Summary Force Court, under Section 43, of the ITBP Act, which deals with violation of good order and discipline of the Indo Tibetan Border Police Act, and was sentenced to removal from service on grounds of misconduct, with effect from June 2010. During the enquiry before the court, he admitted that he had sexual relations with the officer’s wife, but did not report it to any other senior.
This is what led him to the Himachal Pradesh HC, challenging his removal.
Why court granted relief to constable
Saying that the penalty imposed in pursuance of a disciplinary enquiry can be challenged on grounds of being disproportionate to the proven misconduct, the court added that it was only confining its judgment to the quantum of the constable’s punishment.
Usually, when courts examine the issue of proportionality of punishment, they consider the circumstances under which the misconduct was committed. “In a given case, the prevailing circumstances might have forced the accused to act in a certain manner, though he had not intended to do so,” the HC bench said.
In order to shorten the litigation, “in exceptional and rare cases”, the court itself can impose appropriate punishment by recording cogent reasons, the HC said.
“Everyone serving the force is also at all times responsible for ensuring that good order and discipline in the services is maintained,” the court said in its 20-page ruling passed on 19 June, while adding that as a member of the disciplined force, the petitioner should have control over his mind and passion. “The petitioner has given an indecent burial to self-control, diligence and strength of will power,” the court still proceeded to observe.
The court also noted that in personal or professional life, certain acts that involve the possibility of domestic discord, have the potential to adversely impact operational efficacy given that mental or psychological stability is the key.
Taking note of factors such as the constable’s past record and his age, the court said that a lesser penalty of removal from service could have been given. It also noted that the allegation against the senior officer of recording his wife’s illicit acts with the officer was also proven before the General Force Court.
Significantly, the court found that while the superior was punished only with stoppage of increment for two years, the constable had been removed from service, and said this was “discriminatory under service jurisprudence”.
“In such circumstances, we are of the considered opinion that once the superior officer had been held guilty of preparing the CD with the help of his laptop and forcing his junior to enter into acts of misdemeanour, the present appellant cannot be imposed the grave punishment of removal from service,” the court held while setting aside the 2010 termination order, and substituting the punishment with compulsory retirement with all consequential benefits.
(Edited by Viny Mishra)
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