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2004 DIGILAW 131 (GAU)

Union of India v. Sukraj Debbarama

2004-02-23

I.A.ANSARI, TINLIANTHANG VAIPHEI

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JUDGMENT I.A. Ansari, J. 1. The respondent herein, while working as a L/NK in the Border Security Force, faced a trial by Summary Security Force Court (hereinafter referred to as "the SSFC") on two charges and was found guilty of one of those two charges framed against him and the charges of which he was so found guilt is reproduced hereinbelow :- CHARGE-II ASSULTING HIS SUPERIOR OFFICER BSF ACT U/S 20 (a) “In that he, at Naka No. 81 of BOP Murad, on intervening night of 5/6.5.2000 AT 0300 HRS DURING Naka checking assaulted No. 669110731 Sub-B.S. Rama” 1. Following the above finding, the SSFC sentenced the respondent herein to dismissal from service. The sentence was promulgated on 15.5.2000. In terms of the provisions of Section 117 of the Border Security Force Act, 1968 (hereinafter abbreviated as the BSF Act, 1968), the petitioner-respondent made a representation against the said finding and sentence, but the same was turned down by the order, dated 20.7.2000. The petitioner-respondent, then, challenged his conviction and sentence before this Court with the help of a writ petition and the same gave rise to W.P. (C) No. 357/2000. 2. By the impugned judgment and order dated 14.8.2001, the learned Single Judge, while upholding the finding of guilt reached against the respondent herein, quashed the sentence and remanded the case to the authority concerned with the following directions:- "The matter is remitted to the authority concerned to impose any other penalty within the permissibility of Section 48 of the BSF Act except the punishment classified in Clause (a), (b), (c), (d) and (g) and the same should be done within a period of 45 days. So far as the back wages are concerned, the authority may consider the matter on humanitarian ground having kept in mind that a suffering is already sustained by every member of his family." 3. Hence, the present appeal by the authorities concerned. 4. We have perused the materials on records. We have heard Mr. B. Chowdhury, learned Senior Central Government Standing Counsel, for the respondent-appellant and Mr. K.N. Bhattacharjee, learned Senior Counsel assisted by Mr. P.K. Ghosh, learned counsel, appearing on behalf of the petitioner-respondent. 5. Hence, the present appeal by the authorities concerned. 4. We have perused the materials on records. We have heard Mr. B. Chowdhury, learned Senior Central Government Standing Counsel, for the respondent-appellant and Mr. K.N. Bhattacharjee, learned Senior Counsel assisted by Mr. P.K. Ghosh, learned counsel, appearing on behalf of the petitioner-respondent. 5. What needs to be noted, at the very outset, while dealing with this appeal, is that the conclusion reached by the learned Single Judge a that the finding arrived at by the SSFC is justified by the materials on records has not been challenged by the appellants nor is the conclusion, so reached by the learned Single Judge, has been challenged by the petitioner-respondent. The only question, therefore, which falls for determination, in the present appeal is this : whether the interference in the sentence passed against the respondent by the impugned judgment and order was legal and justified ? 6. Referring to the decision, dated 9.5.2002 in Union of India & Ors v. Narain Singh (Civil Appeal No. 3414 of 2002) of the Supreme Court reported in learned Senior Central Government Standing Counsel, has submitted before us that the case at hand was almost similar to the case of Narain Singh (supra) and in the face of the law laid down in Narain Singh (supra), the sentence imposed on the present respondent was wholly justified and the same ought not to have been interfered with. This apart, submits learned Senior Central Government Standing Counsel, the respondent was a member of Border Security Force, which is a para-military force requiring a very high degree of discipline and in such an organisation, the assault on a superior officer who was three grade senior to the respondent, was a serious offence and must be viewed as such, for, this kind of an offence is punishable u/s 20(a) of the BSF Act, 1968, by imprisonment for a term, which may extend to ten years rather than imposing such a punishment on the respondent, the authority concerned dealt with the matter leniently and imposed on the respondent the sentence of dismissal from service in terms of Section 48 read with Section 50 of the BSF Act, 1968. In such circumstances, learned Single Judge should not have, contends learned CGSC, interfered with the sentence, particularly, when the sentence, in the facts and attending circumstances of the case, cannot be described as disproportionate to the gravity of the offence nor can the sentence be termed as a shocking penalty imposed by the Disciplinary Authority as has been projected in the impugned judgment and order. 7. Controverting the above submissions made on behalf of the appellants, Mr. K.N. Bhattacharjee, learned senior counsel for the respondent, has submitted that the respondent comes from a very poor family and if he is removed from the post he may be enticed away by the extremists, who are active in the State of Tripura, and in this view of the matter, punishment of dismissal from service ought not to have been imposed on the respondent. 8. It is also submitted by Mr. Bhattacharjee that for a mere assault on a person superior to the respondent, the respondent did not deserve to be dismissed from service and, hence, the learned Single Judge was justified in holding that the sentence was disproportionate to the gravity of the offence and was shocking. Referring to the case, Ranjit Thakur v. Union of India and Ors. Mr. Bhattacharjee has placed reliance on the following observations of the Apex Court :- "Re: contention (d): Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review." 9. Relying upon the above observations made in Ranjit Thakur (supra), Mr. Irrationality and perversity are recognised grounds of judicial review." 9. Relying upon the above observations made in Ranjit Thakur (supra), Mr. Bhattacharjee has submitted that the sentence of dismissal from service, in the present case, is an outrageous defiance of logic and cannot be permitted to stand and in this view of the matter, the learned Single Judge was wholly justified in interfering with the impugned order of punishment. 10. Mr. Bhattacharjee has also referred us to the case of Union of India and Ors. v. Iqbal Singh Cheema and contended that in a deserving case, the High Court is not powerless to interfere with the sentence imposed by the SSFC. 11. Now, therefore, the question, which stares itself for consideration by this Court is as to whether in the face of the materials on record, the petitioner-respondent herein was justifiably awarded the sentence of dismissal from service. 12. It is worth pointing out that it is Rule 151, which lays down how the SSFC shall decide the quantum of punishment. According to Rule 151 the SSFC may either, on its own knowledge or by taking evidence from any record, note down general character, age, service, rank, and any recognised acts of gallantry, or distinguished conduct of the accused, and previous convictions of the accused either by a Security Force Court, or a Criminal Court, any previous punishment awarded to him by an officer exercising authority under Section 53, the length of time he has been in arrest or in confinement on any previous sentence, and any decoration, or reward, or to which he may be in possession or to which he may be entitled. Coupled with this, Rule 152 lays down that the SSFC shall award one sentence in respect of all the offences of which the accused is found guilty. 13. Thus, according to Rule 151, the entire past conduct of the accused including his previous convictions, if any, are to be taken into consideration by the SSFC before deciding the quantum of sentence to be passed against him. 14. In the case at hand, the past conduct of the writ-petitioner-respondent was not very encouraging inasmuch as he was convicted and sentenced to 7 days' detention u/s 19(a) of the BSF Act, 1968 and reprimanded u/s 32(b) of the said Act. None of these two punishments was challenged by the petitioner-respondent. 14. In the case at hand, the past conduct of the writ-petitioner-respondent was not very encouraging inasmuch as he was convicted and sentenced to 7 days' detention u/s 19(a) of the BSF Act, 1968 and reprimanded u/s 32(b) of the said Act. None of these two punishments was challenged by the petitioner-respondent. In this backdrop, we have to consider the appeal. 15. For appreciating the submissions made, on behalf of the respondent, that the punishment imposed on the respondent is so disproportionate to the offence as to shock the conscience of the Court and the sentence, therefore, needs to be interfered with, one has to bear in mind that the real meaning and object of observations made in Ranjit Thakur3 case (supra), which Mr. Bhattacharjee has relied upon, stand explained by the Apex Court in its later decision in the case of Union of India and Ors. v. R.K. Sharma. 16. In Major Sharma's case (supra) which arose out of an order, dated 14.10.1999, passed by the learned Single Judge of this Court setting aside the dismissal order of the writ petitioner R.K. Sharma, and remanding the matter to the General Court Martial for awarding him any lesser punishment, a Division Bench of this Court had upheld the order so passed. 17. On considering the question as to whether the Courts were justified in interfering with the punishment, while maintaining the conviction, the Apex Court, in R.K. Sharma's case, laid down as follows :- "The Division Bench also relied upon the following observations in the case of Ranjit Thakur v. Union of India, report in. "Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds, of judicial review. The High Court should not allow the challenge to the validity of conviction and sentence of the accused, when evidence is sufficient, Court partial has jurisdiction over the subject matter and has followed the prescribed procedure and is within its powers to award punishment. As stated above, both the Single Judge as well as the Division Bench have held that the four charges set out have been proved and that the respondent was guilty of those charges. Having so held, it was not open to the Court to have interfered in the sentence. The awarding of sentence is within the powers of the Court Martial, these are not matters in which Court should interfere. In our view, the observation in Ranjit Thakur's case (supra) extracted above; have been misunderstood. In that Case the facts were such that they disclosed a bias on the part of Commanding Officer. In that case the appellant Ranjit Thakur had fallen out of favour of the Commanding Officer because he had complained against the Commanding Officer. The above observations are not to be taken to mean that a Court can, while1 exercising powers under Article 226 or 227 and/or under Article 32, interfere with the punishment because it considers the punishment to be disproportionate. It is only in extreme cases which on their face show perversity or irrational that there can be judicial review. Merely, on compassionate grounds a Court should not interfere." 18. The ratio, which has, thus, been laid down by the Apex Court in R.K. Sharma's case (supra) is that while exercising powers under Article 226 or 227, the Courts are not to interfere with punishment because it considers the punishment to be disproportionate and it is only in extreme cases, which, on their face, show perversity or irrationality that there can be judicial interference. It is also clearly held in this case that merely on compassionate ground, a Court should not interfere with the sentence awarded. 19. It is also clearly held in this case that merely on compassionate ground, a Court should not interfere with the sentence awarded. 19. In the case at hand, if the past conduct of the petitioner is taken into consideration, as has been taken into consideration by the SSFC, coupled with the gravity of the charge (in the context in which the charge has been framed) clearly shows that the writ petitioner was not fit to be retained any longer in service in a force, which has to ensure security of the State. Any leniency or compassion shown in such cases may have far-reaching Consequences adversely affecting the national security. Viewed from this angle, we are fully satisfied that the sentence, of dismissal from service requires no interference. 20. We may also point out that the Apex Court has also observed in R.K. Sharma's case (supra) that for the offences proved, which are serious in nature, the GCM could have awarded sentence of imprisonment, but the GCM was lenient inasmuch as it merely dismissed the petitioner from service. In the present case too, since the respondent herein was charged under Section 20(a) of the BSF Act and the charge stood proved, he could have been awarded by the SSFC punishment as severe as 10 years of imprisonment. Looked at from this angle, the respondent herein cannot be said to have been harshly dealt with. 21. While considering the sentence passed against the petitioner-respondent, one has also to bear in mind, if we may reiterate, that merely on compassion, a Court should not interfere with the sentence as held in R.K. Sharma's case (supra). 22. In the case at hand, the learned Single Judge, while upholding the finding, but setting aside the punishment, has observed thus, "Having regard to the gravity of the offence proved to have been committed, I am of the considered opinion that the punishment of dismissal from service as has been imposed upon the petitioner is ex facie disproportionate and appears to be very shocking and, as such, punishment of dismissal from service so imposed upon the petitioner is hereby quashed." 23. From the above observations, we do not find that the learned Single Judge has assigned even a particle of reason as to why the sentence was considered by him "ex facie disproportionate" and/or "shocking." 24. From the above observations, we do not find that the learned Single Judge has assigned even a particle of reason as to why the sentence was considered by him "ex facie disproportionate" and/or "shocking." 24. It needs to be borne in mind that though the SSFC proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the SSFC is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a SSFC has been properly convened, there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or, for that matter, any Court must stay its hands. Proceedings of a Court Martial or SSFC are not to be compared with the proceedings in a criminal Court. It has been laid down in R. K. Sharma (supra) that Court Martial remains, to a significant degree, a specialised part of overall mechanism by which the military discipline is preserved. It is for the special need of the armed forces that a person subject to Army Act is tried by Court Martial for an act which is an offence under the Act. To our mind same spirit needs to be followed in considering the sentence passed by the SSFC, for, the BSF is also entrusted with the security of the State and condoning of indiscipline may cause irreparable harm to the State. 25. While considering punishment to be awarded to a person by any department or organisation the functioning of the department or the organisation, concerned has to be borne in mind. The standard of discipline and adherence to the principles of showing regard and respect to a superior in an armed force or a para-military force cannot be equated with other civilian departments. A very high degree of discipline, a deep sense of respect to superiors and an abiding instinct to follow the commands received are hallmark of a disciplined organisation, which is entrusted with the security of the nation. Any leniency or compassion shown in such cases may adversely affect the interest of the force, the very objective with which it is formed, and the role, which it has to play. Its working ability depends upon a very high degree of discipline and complete obedience to all just and lawful commands of the superiors. Any leniency or compassion shown in such cases may adversely affect the interest of the force, the very objective with which it is formed, and the role, which it has to play. Its working ability depends upon a very high degree of discipline and complete obedience to all just and lawful commands of the superiors. Hence, in a force, such as the BSF, if a person is allowed to be let off with leniency even when he assaults his superior in rank, it may become c well nigh impossible for such a force to function as a disciplined force. When we consider the sentence, which has been passed against the respondent disproportionately, we do not find that the penalty of removal from service can be treated as "ex facie disproportionate" to the gravity of the offence or "shocking" or bias or irrational. Par from this, the respondent has been dealt with, to our mind, leniently, inasmuch as instead of being sentenced to ten years of rigour imprisonment and dismissal from service, he has been merely dismissed from service. 26. We may also respectfully recall the observations made by the Apex Court in Narain Singh (supra), which run as follows :- "As seen above, the Division Bench notes that the charges against the Respondent are proved and that the charges are of serious nature. Once the Court came to the conclusion that the charges were proved and that the charges were of serious nature, it was not the function of the Court to interfere with the quantum of punishment. The Division Bench was wrong in holding that factor viz. a) the person is coming from which place, b) his family background and (c) his service record etc. were to be kept in mind. Bench in our view the Division was also wrong in holding that if a poor person pleads guilty to the misconduct, then extreme penalty of dismissal is uncalled for. In our view a Court must not lightly interfere with sentences passed after a properly conducted enquiry where the guilt is proved. Reduction of sentence, particularly in military, para-military or police services can have a demoralising effect and would be a retrograde step so far as discipline of these services is concerned. In this case the charges being of a serious nature, the penalty was commensurate with the charges. Reduction of sentence, particularly in military, para-military or police services can have a demoralising effect and would be a retrograde step so far as discipline of these services is concerned. In this case the charges being of a serious nature, the penalty was commensurate with the charges. Further, the Division Bench has itself noted that this was the third time the respondent was punished. Mr. Mehta tried to support the impugned order on the ground that the Division Bench had taken a just and kind view considering the fact that the respondent had served for a long time and came from a poor family. He submitted that the impugned Order was a just order and should not be interfered with. We are unable to accept this submission. As stated above, the law is clear. It is not for the Court to determine the quantum of punishment once charges are proved. In this case it cannot be said that the punishment of dismissal is not commensurate with the charges. It is not for the Court to interfere on misplace grounds of sympathy and/or mercy." 27. From a combined reading of the case of R.K. Sharma (supra) and the case of Narain Singh (supra) it is abundantly clear that the High Court shall not interfere with the quantum of sentence once the charges are proved, merely on the ground that the sentence is disproportionate unless the case is a case of extreme nature, which, on the very face of the record, shows perversity or irrationality, bias or defiance of logic. In the absence of perversity or irrationality or defiance of logic in imposing punishment, the punishment imposed cannot be interfered with. 28. Upon overall consideration of the case at hand, we find that in the facts and circumstances of the case, the punishment imposed on the respondent herein can in no way, be described as harsh or disproportionate to the gravity of the offence or perverse, irrational and/or bias and/or shocking. The sentence imposed on the respondent herein, therefore, needed no interference by Court. 29. So far as the case of Iqbal Singh Cheema (supra) relied upon by Mr. Bhattacharjee is concerned, we may point out that this was a case in which in a given set of facts, the court replaced the punishment of removal from service by forfeiture of promotion. 29. So far as the case of Iqbal Singh Cheema (supra) relied upon by Mr. Bhattacharjee is concerned, we may point out that this was a case in which in a given set of facts, the court replaced the punishment of removal from service by forfeiture of promotion. There is no similarity between the case at hand and the case of Iqbal Singh Cheema. We do not, therefore, find that the respondent's case receives any help from the case of Iqbal Singh Cheema (supra). In the case of Iqbal Singh Cheema (supra), the Court Martial itself had recommended sentence of forfeiture of 7 years of service for the purpose of promotion and pecuniary benefits, but such proposal was not accepted and the delinquent was dismissed from service. In the case at hand, the punishment of dismissal from service was proposed by the SSFC and the same not being, in any way, irrational or bias and/or disproportionate to the offence, the same does not call for any interference by a writ court. 30. Considering, therefore, the matter in its entirety, we allow this appeal, set aside the impugned order dated 14.8.2001, aforementioned and maintain the punishment of dismissal from service imposed on the writ-petitioner-respondent. 31. Let the parties bear their own costs. Appeal allowed