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2002 DIGILAW 38 (DEL)

AJAY KUMAR SHARMA v. UNION OF INDIA

2002-01-11

C.K.MAHAJAN, USHA MEHRA

body2002
C. K. MAHAJAN ( 1 ) THE present appeal is directed against the order of the learned Single Judge dated 6/11/2000 dismissing the writ petition on the ground that the evidence led before the summary Security Force Court could not be reappreciated in the writ petition. Briefly stated the facts are that the appellant was deputed as a guard with vehicle at BOP, Nandanpur. The appellant claimed to have taken Rs. 535 along with him to make some purchases for himself. The appellant further pleaded that he had asked the Guard Commander to allow him to do shopping enroute to the Customs Office, Chhapra. On 18/05/1999 a large quantity of onions was seized from Debnathpur area. It is on record that about 8400 Kgs. of loose onions were seized. In the night they were kept at Shakur BOP. Next day onions were brought to Chhapra Customs Office. Since the onions were loose arrangements were made to fill them in gunny bags and get them weighed. The Assistant Commissioner came to the Office at about 9 o Clock in the evening and asked the appellant how many onions he had sold. The appellant denied having sold any onions. The appellant was asked as to how much money he had. The appellant took out Rs. 515. The Assistant Commissioner returned Rs. 15 and kept the balance Rs. 500. The appellant asked the Commissioner to return his money as he had brought the same for some shopping. The money was not returned to him. It is in these circumstances that a charge sheet alleging that the appellant had sold five bags of onions was issued on 3/08/1999. It was stated that the appellant had sold these bags to a civilian for Rs. 790. Another charge sheet was issued on the 25/09/1999 wherein it was stated that the appellant had sold five bags of onions to an unknown civilian for Rs. 500. The Summary Security Force Court conducted trial in the presence of the appellant. The evidence was recorded and the witnesses were examined and cross-examined. On completion of the trial the Commandant dismissed the appellant from service vide order dated 27/11/1999. The appellant filed an appeal before the Director General which was dismissed on 19th October, 2000. 500. The Summary Security Force Court conducted trial in the presence of the appellant. The evidence was recorded and the witnesses were examined and cross-examined. On completion of the trial the Commandant dismissed the appellant from service vide order dated 27/11/1999. The appellant filed an appeal before the Director General which was dismissed on 19th October, 2000. It was in these circumstances that the appellant approached the learned Single Judge by way of the writ petition which was also dismissed vide the impugned order dated 6th November, 200. Hence this appeal. ( 2 ). The appellant assails the order inter alia on the ground that he could not have been dismissed as findings of the Summary Security Force Court are without evidence and are not based on materials and also the Director General gave no reasons while dismissing the appeal of the appellant confirming the order of dismissal. Counsel for the appellant contended that the penalty is not commensurate with the gravity of the alleged misconduct. He has further contended that a charge sheet was framed and issued on 3/08/1999 and thereafter another charge sheet was framed 53 days later without mentioning therein about the earlier charge sheet. It was further contended that PW-1 Shri Anirudha Sen was not present at the spot but gave evidence on the strength of what was narrated to him by a civilian. There is no evidence on record to support the allegation of sale of onions. The civilian who was examined has turned hostile and denied the fact that any onion was sold or any money was paid. The civilian was also not identified by Mr. Anirudha Sen and he also did not know the name of the boy who gave the information. In short the appellant contended that there was no evidence to warrant a finding of guilt and dismissal from service and in any case the penalty was not commensurate with the gravity of the alleged offence. ( 3 ). The appeal was opposed by the respondents. We have heard counsel for the parties and perused the record. The appellant was charged under Section 30 (b) of the BSF Act for dishonestly appropriating property belonging to the Government. ( 4 ). We have also examined the summary proceedings and evidence on record. ( 3 ). The appeal was opposed by the respondents. We have heard counsel for the parties and perused the record. The appellant was charged under Section 30 (b) of the BSF Act for dishonestly appropriating property belonging to the Government. ( 4 ). We have also examined the summary proceedings and evidence on record. PW-1, Shri anirudh Sen, Coy Commander on whose report the case was made against the appellant, in his statement has said that while he was strolling on the road a boy around 20-21 years of age who works in a tea shop opposite the custom office came to him and informed that 20-25 bags of onion had been sold. The boy further told Shri Sen that a BSF Jawan with a gamcha around his shoulder had approached him to buy five bags of onion and on the refusal of the civil boy BSF Jawan asked him to look for some other customer. Shri Sen further stated that one other civilian met the said civil boy and purchased the onion and the deal was struck for rs. 790/- which money was given by the civilian to the boy to be handed over to the BSF jawan. He asked the civil boy whether he could identify the BSF Jawan the boy answered in the affirmative. The boy identified the appellant and on search PW-1 stated that Rs. 500. 00 were found from the bottom of magazine pouch under magazine. On his cross examination the said PW-1 stated that the civil boy had informed him that total around 20-25 bags had been sold but the boy did not say that all of them were sold by the appellant. He further stated that about 60-70 bags of onion were weighed after his arrival at 1930 H and the weighing etc. finished at around 2300 H. He further stated that he did not ask the civil boy at what time onions were sold and he did not ask the civil boy why was he informing him as he did not feel the need. He further stated that he had inquired from the guard commander also if he knew about selling of onion to which he had said that he had no knowledge. ( 5 ). In his statement one Sh. He further stated that he had inquired from the guard commander also if he knew about selling of onion to which he had said that he had no knowledge. ( 5 ). In his statement one Sh. Bikash Biswas has stated that he has a tea shop in front of customs office and when he was standing in front of the shop one jawan of BSF came to him carrying a rifle and inquired about, his name and then caught him by a scarf and asked him if he bought some onion and who sold the same. He expressed his ignorance. He further stated that since he was suffocating due to tightening of scarf around his neck, he due to fear, indicated towards a jawan who was sitting in the stairs to save himself. The jawan who had caught him told him not to disclose anything to anyone and asked him to go home. He further stated that after few minutes he was again called by some officer and he also asked him about the incident and if he purchased the onion or he knew to whom onions were sold. He again expressed his ignorance. He further stated that no one gave him any money nor he gave any money to any BSF Jawan and he did not know anything about any such sale/ purchase or transaction of money as nobody came to him to sell onions. In his cross examination the said witness said that he indicated to the person whatsoever he noticed first due to fear. He further stated that he did not know how the denomination of 100/- Rs. note numbering four and 50/- Rs. note numbering two was written. He also stated that he did not remember what he said that date. ( 6 ). The evidences of Constable Trilok Ram and PW-4 Constable D. R. S. Negi who were on escort/guard duty for carrying onion to customs office, Chhapra do not indicate anything against the appellant which will show that he had sold the onions. The other witnesses PW-5 and PW-6 also did not support the case of the prosecution. Even PW-6 has stated that he did not remember the date of the alleged incident. ( 7 ). There was thus no evidence to connect the appellant with the sale of onions. The other witnesses PW-5 and PW-6 also did not support the case of the prosecution. Even PW-6 has stated that he did not remember the date of the alleged incident. ( 7 ). There was thus no evidence to connect the appellant with the sale of onions. Moreover, pw-1, on whose report the case was made, does not remember the name of the boy who bought the onion and gave him the information. PW-2 Shri Bikash Biswas, had turned hostile and did not support the case of the respondents. The evidence of PW-2 is based on hearsay. Though in his evidence PW-6 has stated that there were hundreds of civilians at the spot but the prosecution has not examined any public witness. There is no record of weight of onions prior to their being packed in gunny bags and thereafter. There is no record of the quantity of onions sold as there was no weight taken after sale of the onions. There is thus no material on record to justify the dismissal of the appellant. ( 8 ). From reading of the evidence led before the Summary Court, it can be seen that the findings arrived at by it are based on irrelevant considerations. The Summary Court failed and neglected to take into account the relevant factors such as the evidence of PW-2, PW-3, pw-4, PW-5 and PW-6 and the decision of the Summary Court is so unreasonable that no reasonable authority would have made such a decision. ( 9 ). The learned Single Judge ought to have taken into account the fact that the Summary court has taken note of only the evidence of PW-1 which is not supported by the evidence of any other witnesses. It is correct that the High Court under Article 226 cannot re-appreciate the evidence but it can interfere if the findings are perverse and against the basic principles of natural justice. The learned Single Judge should have taken into account the fact that the findings of the Summary Security Force Court are perverse as the Summary Court did not carefully considered the evidence adduced during the course of the proceedings. The decision of the Summary Court is vitiated as it has taken into account irrelevant factors which are manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision. The decision of the Summary Court is vitiated as it has taken into account irrelevant factors which are manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision. It is settled law that finding of facts arrived at by the competent authority cannot otherwise be interfered with while exercising power under Article 226 of the Constitution, unless the same is otherwise perverse or there exists an error apparent on the fact of the record. In the instant case the findings are perverse. There is no evidence on record to warrant a finding against the appellant as the department failed to connect the appellant with the theft of onion or sale of onion. There is in fact not an iota of evidence to link him with theft. In the absence of any evidence justifying the charge levelled against the appellant the punishment of dismissal cannot be sustained. ( 10 ). In view of the aforesaid discussion the appeal is allowed and the order of the learned single Judge is set aside. There will be no order as to costs.