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1998 DIGILAW 315 (GAU)

Union of India and Ors. v. MD. Riyaj Ahmed Bandya

1998-11-03

A.K.PATNAIK, B.N.SINGH NEELAM

body1998
A. K. Patnaik, J- This is an appeal against the judgment and order dated 5.2.1998 in Civil Rule No.664 of 1997. 2. The facts briefly are that the respondent herein was working as a Constable in the Border Security Force, GSF. Court proceeding was initiated against him in the year 1997 and the charges against the respondent were that on 1st March, 1992 while returning from Naka duty in the area BP No.314/2 to 316, he deserted the service and was handed over to the Unit by Pak Ranges on 14th October, 1992 and he had committed theft of SLR Registered No. DA-2053 Butt No. 312 along with 3 Magazines and 50 rounds of 7.862 MM BDR belonging to the Govt. The respondent pleaded guilty to the aforesaid two charges. On the question of punishment, however, he pleaded that the punishment should be mitigated as he has aged parents, six brothers and one sister and they were all dependent on him. Thereafter evidence of one Sukhjinder Singh Gill, Assistant Commandant 29Bn BSF on the quantum of punishment was taken and by order dated 28th April, 1987 a sentence of rigorous imprisonment of 2 years and dismissal from service was proposed by the GSF Court. The respondent filed petitions dated 14.5.1997 and 5.7.1997 for mercy and pardon but the said sentence was confirmed by the competent authority on 7th July, 1997. The respondent again filed mercy petition dated 24.9.1997 before the Director General, BSF but no relief was granted to the respondent and he then moved this Court under Article 226 of the Constitution in Civil Rule No. 664 of 1997 for appropriate relief. By the impugned order and judgment dated 5.2.1998 passed in the said civil rule, the learned Single Judge after having found that the respondent had not been given an opportunity of hearing and that no reason had been recorded by the competent authorities to set aside the order of confirmation and directed the Director General, BSF to decide the appeal for the respondent dated 24.9.1997 afresh after affording an opportunity of hearing to the respondent and further directed that effort should be made for disposal for the appeal within a period of six month. 3. Assailing the said judgment of the learned Single Judge in this appeal, Mr. 3. Assailing the said judgment of the learned Single Judge in this appeal, Mr. KN Bhattacharjee, learned Senior Central Govt Standing Counsel submitted that by judgments of the Apex Court in the cases of SN Mukherjee vs. Union of India, AIR 1990 SC1984 and Union of India vs. Amrik Singh, AIR 1991SC 564 the Supreme Court has held that principles of natural justice are not required to be observed and reasons are not required to be recorded while disposing of a petition under section 164 of the Army Act and under section 117 (2) of the Border Security Force Act. 4. On a reading of the decision of the Apex Court, Amrik Singh (supra) we find that the Supreme Court has held therein that under section 117 (2) of the BSF Act the respondent was only entitled to file a petition but the disposal of such a petition did not attract principles of natural justice as the authority disposing of a post-confirmation petition was not a Court and order passed administratively could not be subjected to the rigours of principles of natural justice. In the said decision in Amrik Singh (supra), the Supreme Court has taken note of its earlier observations in SN Mukherjee (supra) that recording of reasons is regarded as one of the principles of natural justice. In view of the said decision of the Supreme Court that principles of natural justice are not required to be observed and no reasons are required to be recorded by the authority while disposing of a post confirmation petition, we are of the view that the learned Single Judge by setting aside the order of confirmation on the ground that no reason was recorded and no personal hearing was granted to the respondent committed a grave error of law and that the impugned order of learned Single Judge setting aside the order of confirmation and directing the authority to pass order afresh after affording an opportunity of hearing to the respondent cannot be sustained. 5. Mr. Ali, the learned counsel for the respondent, however, raised another ground which was not decided by him. 5. Mr. Ali, the learned counsel for the respondent, however, raised another ground which was not decided by him. He submitted that during the period from 8.2.1993 to 6.7.1997, i.e. for a period of 4 years 5 months and 5 days the respondent was under close arrest and that the said period of close arrest should have been set off against the sentence of 2 years imprisonment Mr. KN Bhattacharjee, the learned counsel for the appellant, however, stated that while there is an express provision in section 169A of the Army Act for setting off the period of custody undergone by the officer or person against the imprisonment, there is no such express provision for setting off the period of custody undergone by an officer or person against imprisonment in the BSF Act. 6. We, however, find that in the case of Union of India vs. Anand Singh Bisht, AIR 1997 SC while taking note of the aforesaid difference in the provisions of the Army Act and the BSF Act observed that it was desirable that an amendment be made in the BSF Act in the lines of section 169 A of the Army Act and section 428 of the CrPC for granting the benefit of set off of the period of custody undergone by the officer or person against imprisonment. Having observed thus, the Supreme Court found that Shri Anand who was the respondent in that had suffered long detention as under-trial accused and had also undergone imprisonment at the Behrampur Central Jail in execution of the sentence for about six months and directed that justice would be met if his sentence was reduced to the period already undergone. 7. In the facts of the present case the respondent appears to have suffered close arrest during the long period of 4 years, 5 months and 5 days till 6.7.1997 and thereafter on 7.7.1997 when the order was passed confirming the sentence of 2 years rigorous imprisonment and dismissal from service and pursuant to the said order of confirmation the respondent has been under imprisonment since 7.7.1997 till date, ie for a period of 1 year 3 months and 27 days. We are of the view that ends of justice would be met in this case if the period of imprisonment is reduced to the period already undergone by the respondent. 8. We are of the view that ends of justice would be met in this case if the period of imprisonment is reduced to the period already undergone by the respondent. 8. Without quashing the order of dismissal of the respondent, we dispose of the appeal with a direction that the sentence of rigorous imprisonment will be confined to the period already undergone by the respondent and the respondent be forthwith released. 9. Authenticated copy of the order be furnished to the learned counsel of both the parties by day after tomorrow.