ITBP Constable's Removal For Affair With Superior Officer's Wife Disproportionate; Compulsory Retirement Appropriate Penalty: HP High Court

The Himachal Pradesh High Court held that the punishment of removal from service imposed on an ITBP constable for maintaining a consensual illicit relationship with the wife of his superior officer was disproportionate in the peculiar facts of the case.

Noting that the superior officer had also faced disciplinary proceedings and was found guilty of recording the sexual act on his laptop but received a significantly lesser punishment, the Court substituted the constable's removal with compulsory retirement, observing that parity and proportionality in disciplinary action could not be ignored.

Division Bench of Chief Justice G.S. Sandhawalia and Justice Bipin Chander Negi remarked 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."

Background:

The appellant was posted as a Security Assistant to Assistant Commandant Avinash Singh while serving in Leh. During that period, he developed a consensual relationship with the officer's wife. Following a complaint made by the officer's wife, disciplinary proceedings were initiated against the constable under the Indo-Tibetan Border Police Force Act, 1992. A Summary Force Court found him guilty of conduct prejudicial to good order and discipline and ordered his removal from service in June 2010. 

Before the High Court, the constable did not dispute the findings of misconduct and confined his challenge to the quantum of punishment. The Court reiterated that judicial review in disciplinary matters is limited and interference with punishment is warranted only where the penalty is shockingly disproportionate to the proven misconduct.

Referring to Supreme Court precedents on the doctrine of proportionality, the Bench observed that courts may examine the circumstances in which the misconduct occurred while assessing whether the punishment imposed is excessive. 

The Court noted that the appellant was a constable working under the command of Assistant Commandant Avinash Singh and was stationed at the latter's official residence. It further observed that the appellant's consistent case was that the relationship had developed at the behest of the superior officer and that attempts by him to resist were met with threats of penal consequences. 

A significant factor considered by the Bench was that separate proceedings had also been initiated against Assistant Commandant Avinash Singh. The officer was charged with forcing his wife to develop sexual relations with the appellant and with recording the sexual act on his laptop. While the first charge could not be proved, the second charge was established, resulting in a punishment of forfeiture of two years' past service for pensionary purposes. 

The Court observed that the statements of the officer's wife recorded in both proceedings were substantially similar and alleged that her husband had compelled the acts and recorded them. The Bench further noted that the superior officer, despite being aware of the relationship, had continued to keep the appellant with him after the incidents and had himself been found guilty of recording the acts. 

The Bench concluded that, although the misconduct was "sordid in nature" and discipline remains the backbone of the armed forces, the ends of justice would be met by substituting the punishment of removal with compulsory retirement. Accordingly, the Court set aside the orders of removal and appellate rejection to the extent of the penalty and directed that the appellant be treated as compulsorily retired with all consequential benefits. 

Case Name: Ashwani Kumar v. Union of India & Ors.

Case No.: CWP No.12658 of 2026

Date of Decision: 19.06.2026 

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