HP High Court Converts ITBP Constable's Removal to Compulsory Retirement, Citing Superior Officer's Role in Misconduct

The Himachal Pradesh High Court found removal from service disproportionate where the constable's superior was himself punished for orchestrating the same misconduct.

A Division Bench of the High Court of Himachal Pradesh, comprising Chief Justice G.S. Sandhawalia and Justice Bipin Chander Negi, on 19 June 2026 allowed a Letters Patent Appeal filed by an Indo Tibetan Border Police constable against his removal from service. The Bench substituted the penalty of removal with compulsory retirement, along with all consequential benefits. The court found the original punishment disproportionate in light of the proven conduct of the constable's superior officer, who had himself been found guilty by a separate Force Court of recording the very acts for which the constable was penalised — and who received only a forfeiture of two years' past service for pension purposes. The judgment, bearing citation 2026:HHC:23192, was authored by Justice Bipin Chander Negi.

The Disciplinary Proceedings Against the Constable

Ashwani Kumar was appointed as a Constable in the ITBP on 10 April 1999. Between 27 August 2006 and 27 January 2009, he was posted at Leh. During that posting, he served as a Security Assistant to Assistant Commandant Avinash Singh.

Assistant Commandant Avinash Singh married on 24 November 2007. His wife came to Leh on 4 August 2008 and remained there during August, September, and from November to January 2009. It was during this period that illicit sexual relations developed between the constable and the wife of the Assistant Commandant.

On 5 March 2009, the wife of the Assistant Commandant filed a complaint with the Director General, ITBP, alleging sexual, mental, and physical harassment and the recording of a sexual act on a CD. The Assistant Commandant had already filed a divorce petition against his wife on 16 February 2009, shortly after his transfer from Leh on 11 February 2009.

Two charges were framed against the constable before a Summary Force Court. The first, under Section 49 read with Section 50 of the ITBP Act (civil offence equivalent to rape under Section 375 IPC), alleged that he had established illicit relations with the wife of the Assistant Commandant and made a pornographic video against her will. The second, under Section 43 of the ITBP Act dealing with violation of good order and discipline, alleged that he had been motivated by the Assistant Commandant to enter into the illicit relationship and had failed to report the matter to senior officers.

During the inquiry, the constable admitted to the illicit sexual relations and to not having reported the matter to any senior officer. He was held guilty under Section 49 and sentenced to removal from service with effect from 29 June 2010. An appeal was dismissed by memorandum dated 8 December 2010. A Co-ordinate Bench of the High Court found that memorandum to be non-speaking and directed reconsideration. On reconsideration, the appeal was again rejected on 28 July 2011. The constable then filed CWP No.1355 of 2012 challenging the rejection order, which was dismissed by a Single Judge on 29 June 2018. The present Letters Patent Appeal arose from that dismissal.

The Parallel Proceedings Against the Superior Officer

Assistant Commandant Avinash Singh was separately charged before a General Force Court on 8 June 2010 by the Deputy Inspector General, Bareilly. Two charges were framed: Charge No. 1 under Section 43 of the ITBP Act alleged that he had forced his wife to develop sexual relations with his security aide, the present constable; Charge No. 2 under Section 26 of the ITBP Act alleged unbecoming conduct in that he had recorded on his laptop the sexual act of his wife with the constable.

The General Force Court exonerated the Assistant Commandant of Charge No. 1 but found him guilty of Charge No. 2. The sentence imposed was forfeiture of two years' past service for the purpose of pension, announced on 4 November 2010.

The Division Bench examined the statements of the wife recorded in both proceedings. Those statements were identical in substance: she had stated that her husband gave her liquor against her consent, forced the constable to perform illicit acts with her, filmed the same, and then threatened her with dire consequences to prevent disclosure.

The Bench also noted that after the incidents at Leh in November 2008, the constable had accompanied the couple from Leh to Reckong Peo. The court observed that this indicated the superior officer was aware of the relationship and had, in effect, been a motivating party to the misconduct for which he was separately punished.

The Legal Framework on Proportionality of Punishment

The sole contention before the Division Bench was the quantum of punishment. The Bench surveyed the applicable legal position on judicial review of disciplinary penalties.

Relying on State of Karnataka v. Umesh, (2022) 6 SCC, the Bench restated that in judicial review a court does not act as an appellate forum over findings of the disciplinary authority. Review is confined to compliance with natural justice, existence of some evidence, observance of statutory rules, absence of perversity in findings, and whether the penalty is disproportionate to the proven misconduct.

The Bench drew on UT of Dadra & Nagar Haveli v. Gulabhia M. Lad, (2010) 5 SCC 775, for the proposition that the discretion of the disciplinary authority in imposing punishment depends on factors including the gravity of misconduct, past conduct, the nature of duties assigned, the responsibility of the position held, any previous penalty, and the discipline required in the establishment. The court noted that the appellate order dated 28 July 2011 had considered the petitioner's past record, age, and mitigation in reducing the penalty from dismissal to removal, but had not addressed the nature of duties assigned to the constable or the responsibility of the position he held.

From S.R. Tewari v. Union of India, (2013) 6 SCC 602, the Bench extracted the principle that where punishment is disproportionate to the gravity of misconduct it becomes arbitrary and violates Article 14 of the Constitution. In exceptional and rare cases, to shorten litigation, the court itself may impose appropriate punishment by recording cogent reasons.

On the question of consensual adult relations outside marriage, the Bench referred to the Supreme Court's observation in S. Khushboo v. Kanniammal, (2010) 5 SCC 600, that “there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting.” The Bench then noted that Section 497 IPC (adultery) was struck down as unconstitutional in Joseph Shine v. Union of India, (2019) 3 SCC 39, but added that in the subsequent Joseph Shine v. Union of India, (2024) 2 SCC 334, the Supreme Court clarified that the 2019 judgment had not pronounced on the effect of Sections 45 and 63 of the Army Act 1950 or corresponding provisions in other Acts — including Sections 26 and 43 of the ITBP Act. The Bench further observed that in any event, Section 497 IPC was in force when the offending acts were committed.

Why the Bench Found Removal Disproportionate

The Division Bench identified several circumstances that, taken together, made removal from service disproportionate.

The constable was a Constable — the lowest rank — placed under the direct command of the Assistant Commandant. He was assigned to work at the official residence of his superior officer. The relationship developed in that setting. According to the constable's own case, the illicit relationship was entered into at the behest of the Assistant Commandant's wife, who maintained the relationship over a considerable period. The constable had also stated that attempts to resist were met with threats of penal action.

The Bench found it significant that the superior officer, who was found guilty of recording the sexual act on his laptop and who the wife's statements indicated had orchestrated the entire situation, received only a forfeiture of two years' past service for pension. The constable, by contrast, was removed from service entirely. The court held that once the superior officer had been held guilty of preparing the recording and forcing his junior into the misconduct, imposing the grave penalty of removal on the constable could not be sustained.

The Bench also referred to M.M. Malhotra v. Union of India, (2005) 8 SCC 351, where the Supreme Court upheld compulsory retirement for an Air Force officer for acts involving moral turpitude, as a guide to the appropriate level of penalty for misconduct of a sordid character in a disciplined force. Applying that standard, the Bench concluded that compulsory retirement — rather than removal — would adequately address the gravity of the misconduct while accounting for the circumstances in which it occurred.

The Bench also noted the general principle that discipline and character are the backbone of the ITBP and that acts with the potential to cause domestic discord can adversely affect operational efficacy. It accepted that if an employee's conduct reflects on character and integrity, the employer may legitimately lose confidence in the employee. However, those considerations had to be weighed against the specific circumstances of this case.

Order

The Division Bench allowed LPA No.24 of 2018. The impugned judgment of the Single Judge dated 29 June 2018, the order of removal dated 29 June 2010, and the rejection of appeal dated 28 July 2011 were set aside to the extent of the penalty imposed. The penalty of removal from service was substituted by a penalty of compulsory retirement with all consequential benefits. Pending applications, if any, were also disposed of.