Himachal Pradesh HC sets aside removal of ITBP constable forced to have sex with senior’s wife

The Himachal Pradesh High Court on Friday granted relief to a constable of the Indo-Tibetan Border Force (ITBP) who was removed from service in 2010 for developing a sexual relationship with the wife of an Assistant Commandant.

A Division Bench of Chief Justice Gurmeet Singh Sandhawalia and Justice Bipin Chander Negi substituted the punishment with a penalty of compulsory retirement and all consequential benefits.

The Court ruled that the constable could not have been removed from service when his superior officer – who was found guilty of recording his wife’s sexual act with the constable - was only punished with stoppage of increment for two years.

“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 the acts of misdemeanor, the present appellant cannot be imposed a grave punishment of removal from service. Therefore, in the given facts and circumstances, we are of the considered opinion that the order of compulsory retirement would redress the issue as such, keeping in view the manner in which the misconduct which was sordid in nature, has taken place,” the Court ruled.

The Court was dealing with an appeal moved by the constable against his removal from ITBP. He had joined the Central Armed Police Forces (CAPF) in 1999 and was posted in Leh between 2006 and 2009. Thereafter, he was transferred to Reckong-Peo in Himachal Pradesh. 

Months before his transfer to Himachal Pradesh, the constable is alleged to have developed a sexual relationship with his Assistant Commandant's wife. The constable was a security assistant to the officer and posted at his official residence.

The allegations came to the fore when the Assistant Commandant filed a divorce petition against his wife and she in turn filed a complaint against him and the constable. She accused them of sexual, mental and physical harassment. She also alleged that her sexual acts with the constable were recorded by her husband.

The constable admitted to the sexual relationship and was removed from service. However, he later challenged the removal. In the meantime, the Assistant Commandant was cleared of the charge of forcing his wife to have sexual relationship with the constable but found guilty of recording their sexual acts.

The Court observed that as a member of the disciplined force, the petitioner-constable was expected to have control over his mind and passion. It added he had given “an indecent burial to self-control, diligence and strength of will power.”

However, the Court noted that as per the constable, the sexual relationship was “entered into at the behest of” his superior.

“Besides the wife of the Assistant Commandant knowingly maintained physical relations for a considerable period. Attempts made by the petitioner to resist were shunned with the dire threat of penal action,” the Bench added.

It also took note of statements given by the wife of the Assistant Commandant that her husband had given her liquor against her consent and forced the constable to perform illicit acts with her and made a film of the same.

Considering these facts and that the Assistant Commandant was awarded lesser punishment, the Court granted relief to the constable by modifying his removal from service to compulsory retirement with payment of service benefits.

Advocate Vinod Kumar Sharma appeared for the petitioner.

Deputy Solicitor General Balram Sharma represented the Union of India.