Stay Of Disciplinary Inquiry Is Only To Prevent Prejudice, Not Indefinite Delay : J&K&L High Court Upholds Suspension And Clears BSF Departmental Action To Proceed Despite Pending Rape Allegations
Deekshitha Sharmile
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar held that the disciplinary inquiry initiated against a BSF officer need not remain stalled merely because a related criminal prosecution is pending, and accordingly allowed the departmental proceedings to continue while upholding the officer’s suspension. Stating that departmental action should not be unduly delayed, the Court observed that the allegations—arising from claims by a subordinate officer that the petitioner engaged in sexual relations on a promise of marriage—do not involve complex questions of fact or law warranting an indefinite pause. It held that the purpose of any temporary stay is only to avoid compelling an employee to prematurely disclose a defence in the criminal case, a concern the Court found absent in this matter.
An FIR was registered against a Border Security Force officer in 2022 under Section 376 of the Indian Penal Code at Police Station Dwarika, New Delhi, based on a complaint by a woman officer of the Force. The complainant alleged that the officer established sexual relations with her on repeated occasions between December 2020 and March 2021 on the false promise of marriage. She later discovered that the officer was engaged to another woman and allegedly had long-standing relations with another lady.
Following registration of the FIR, a chargesheet was filed and trial commenced before the criminal court. The officer was granted bail. Meanwhile, the respondents placed him under suspension under Rule 40A(1) of the BSF Rules, which was periodically extended. A Staff Court of Enquiry was also ordered under Rule 173 of the BSF Rules to investigate allegations of misconduct.
The petitioner challenged the suspension orders and initiation of departmental proceedings, contending that prolonged suspension violated Article 21, that departmental proceedings could not run parallel to criminal trial, and that the allegations arose from private matters. The respondents relied on the complaint made by the woman officer to BSF authorities and maintained that the charges involved misconduct within the Force.
Justice Sanjay Dhar recorded that “Departmental proceedings should not be unduly delayed. The purpose of staying the departmental proceedings till the criminal proceedings are concluded is to avoid prejudice to the delinquent employee during the criminal proceedings because if the departmental proceedings are proceeded ahead, the delinquent employee would be compelled to disclose his defence, which may cause prejudice to his case before the criminal court.”
The Court referred to Supreme Court precedent and stated: “It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be ‘desirable’, ‘advisable’ or ‘appropriate’ to proceed with the disciplinary enquiry when a criminal case is pending on identical charges.”
It further noted: “The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf.”
The Court highlighted: “The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings.”
Quoting Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., the Court stated: “Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.”
It added: “If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.”
The Court observed that in the present case, “the allegation of the lady ASI against the petitioner is simple that she was lured by the petitioner into sexual intercourse on the basis of false promise of marriage. The determination of veracity of this allegation by the criminal court or during the departmental proceedings does not involve decision of a complicated question of fact or law.”
It recorded: “No prejudice would be caused to the petitioner in case both the criminal case as well as departmental proceedings are allowed to proceed simultaneously.”
On suspension, the Court stated: “It was at the instance of the petitioner that the departmental proceedings came to a grinding halt… Thus, the petitioner cannot take advantage of his own actions by claiming that the respondents have perpetuated his agony by not completing the departmental proceedings.”
The Court concluded: “For the foregoing reasons, I do not find any merit in these petitions. The same are dismissed accordingly. Interim direction(s), if any, shall stand vacated with immediate effect.”
“In view of the decision in the main writ petition(s), the order out of which instant contempt petition has arisen, has merged in the final judgment. Therefore, nothing further survives for consideration in this contempt petition. The same is, accordingly, disposed of.”
Advocates Representing the Parties
For the Petitioners: Mr. S. A. Qadri, Advocate
For the Respondents: Mr. Vikas Malik, CGSC with Ms. Sehar Mufti Ahad, Advocate
Case Title: Akhand Prakash Shahi vs. Union of India & Anr.
Case Number: WP(C) No.1876/2025 c/w WP(C) No.3128/2023 CCP(S) No.32/2024
Bench: Justice Sanjay Dhar
