Delhi High Court upholds termination of BSF personnel who was in touch with Pakistani intelligence operative

The Delhi High Court recently upheld the termination of a Border Security Force (BSF) personnel who was terminated from service on the allegation of being in touch with a Pakistani intelligence officer (PIO) [Kishore Chandra Sahoo v UOI and others]..While doing so, the Bench of Justices Manmohan and Navin Chawla held that the allegation against the petitioner was of being in regular contact with a PIO and therefore the show cause notice and inquiry into the matter is likely to jeopardize the national security of the country.“Clearly, if a show cause notice is to be issued to him and a reply thereto is to be sought, the same is likely to jeopardise the national security as certain vital operational and deployment details may come into focus in such inquiry. The source and material for forming an opinion of the person contacted being a PIO would also need to be disclosed. The opinion/satisfaction of respondent no.3, therefore, cannot be said to be unreasonable or perverse warranting any interference by this Court in exercise of its powers of judicial review,” the Bench held..The Court was hearing a plea filed by Kishore Chandra Sahoo, who had joined the BSF in 2002 and was posted at Border Out Post (BOP) Kalka of 114 Battalion. On November 23, 2020 he had taken his mobile phone on duty and contacted the suspected PIO.After a search of his belongings, four mobile phones and a SIM card were also found in his possession. A Staff Court of Inquiry (SCOI) confirmed the allegations and found him guilty of being in touch with the PIO since 2018 and carrying the phones with him to his post several times. The SCOI held that his conduct went against the Standard Operating Procedures and Instructions of the BSF, as a result of which he was dismissed from service.Sahoo filed two representations before the IG Rajasthan Frontier force. He also moved the High Court seeking directions to the IG Frontier, BSF to decide on these representations. The case was disposed of with directions to the IG to decide the representations as expeditiously as possible..In June, his representations were dismissed, with the BSF holding that his demand for reinstatement in service was devoid of merit. In July, Sahoo filed another representation, which was also dismissed.After this, he approached the High Court yet again, arguing he was dismissed from service without a regular departmental inquiry, thereby violating principles of natural justice. He further argued that there was no material to show that it was necessary to dispense with a formal inquiry. He added that Section 11(2) of Border Security Force Act, 1968 does not empower the commandant to pass orders dismissing him from service and that such powers can only be exercised by the DG..The Court, however, rejected both the arguments, holding that the rules clearly provide that where the competent authority is satisfied that it is not expedient or reasonably practicable to give to the person sought to be terminated from service an opportunity to show cause, it shall record reasons for the same in writing.“A reading of the above Rule would show that the Commandant, being the Prescribed Officer, was authorized to dispense with disciplinary inquiry against the petitioner if he was of the opinion that holding a disciplinary inquiry is not expedient or reasonably practicable in the facts of the case,” it was held.The Court also refused to accept Sahoo’s argument that the order of his dismissal was based only on suspicion since he never denied being in contact with the PIO or the fact that he carried a mobile phone on duty..Sahoo was represented by Advocates Pradeep Gupta, Parinav Gupta, Mansi Gupta and Mamta Sharma, while the respondents were represented by Senior Panel Counsel Akshay Amritanshu and government pleader Rishiraj..[Read order]