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2004 DIGILAW 550 (CAL)

RONI THOMAS v. UNION OF INDIA

2004-08-18

J.K.BISWAS

body2004
J. K. BISWAS, J. ( 1 ) THE writ petitioner is aggrieved by his dismissal from service. ( 2 ) WHILE working as constable in the border security force, he faced the allegation that having committed a civil offence he was liable to be proceeded against in terms of Section 46 of the Border Security Force Act, 1968 (hereinafter referred to as "the Act" ). It was alleged that on September 6th, 1998 he had accepted a sum of Rs. 600/- as gratification from an unknown indian smuggler for permitting illegal safe Bangladesh passage to buffaloes belonging to such smuggler. ( 3 ) THE commandant being the competent authority issued a chargesheet under Rule 53 (2) of the Border Security Force Rules, 1969 (hereinafter referred to as "the Rules" ). ( 4 ) SINCE the petitioner was not an officer or a subordinate officer subject to the Act, at the investigation and summary disposal stage the allegations were to be reduced to writing in the form set out in Appendix-IV to the Rules, and at such stage there was no scope to issue a charge-sheet under Rule 53 (2) of the Rules. A charge-sheet under Rule 53 (2) is framed and issued only when a decision has been taken for trial by the competent authority. ( 5 ) LEARNED Counsel for the petitioner has contended that since the charge-sheet was not issued under the appropriate provision, it is liable to be quashed. Learned Counsel for the respondents has submitted that though the charge-sheet had not been issued under the appropriate rule (i. e. Rule 43 of the Rules), it should not be quashed at this stage, since at the stages of recording of evidence and trial by summary security force Court the petitioner did not take any exception to the charge-sheet issued under Rule 53 (2) of the Rules. ( 6 ) I am of the view that on the mere ground that the chargesheet was issued under Rule 53 (2), when it was to be issued under Rule 43 of the rules, it cannot be questioned, unless the petitioner can show that for the irregularity he suffered any actual prejudice. There is no dispute that the charge-sheet was issued by the competent authority, and he issued it only under a wrong provision. There is no dispute that the charge-sheet was issued by the competent authority, and he issued it only under a wrong provision. Since the competent authority has necessary power to issue the charge-sheet, in my opinion, on the ground that it was issued under a wrong provision, it should not be interfered with. ( 7 ) IMMEDIATELY after issuing the charge-sheet dated February 26th, 2002 the commandant issued another order on the same day, and by it he detailed a deputy commandant for recording evidence. The evidence was recorded after giving opportunity to the petitioner. It appears that the officer detailed duly forwarded the evidence recorded by him to the commandant. ( 8 ) ADMITTEDLY, the commandant did not take a decision in terms of rule 51 after receiving the recorded evidence from the officer detailed. Specific question was put by this Court to the learned Counsel for the respondents regarding this aspect, and after consulting the records of the proceedings and going through the opposition filed by the respondents, she has submitted that there is nothing to show that an appropriate decision was taken by the commandant in terms of Rule 51 of the Rules. ( 9 ) PROVISIONS of Rule 51 of the Rules are mandatory in nature. After receiving the evidence recorded by the officer detailed, the commandant is under the duty to take a decision in terms of Rule 51 (2) of the Rules, and such decision must contain reasons. ( 10 ) IN the instant case, as we shall see presently, though direction was given for the petitioner's trial by the summary security force Court, before giving such direction the commandant did not take, record and publish an appropriate decision regarding the necessity of the petitioner's trial by summary security force Court. In my considered view, all the steps taken by the authorities subsequent to Rule 51 stage are simply illegal, since they were not taken in terms of a duly taken decision of the commandant under Rule 51 of the Rules. ( 11 ) AFTER receiving the evidence recorded by the officer detailed, on November 13th, 2000 the commandant issued an order that the petitioners trial by the summary security force Court would be held on November 16th, 2000. ( 11 ) AFTER receiving the evidence recorded by the officer detailed, on November 13th, 2000 the commandant issued an order that the petitioners trial by the summary security force Court would be held on November 16th, 2000. By such order the commandant also named the persons who would attend the trial in the capacities of interpreter, friend of the accused, prosecution witness and accused. On the same day the commandant issued another charge-sheet under Rule 53 (2) of the Rules. In this charge-sheet it was alleged that having acted in a manner prejudicial to good order and discipline of the force, the petitioner was liable to be proceeded against under Section 40 of the Act. ( 12 ) LEARNED Counsel for the petitioner has contended that the chargesheet dated November 13th, 2000 was issued illegally, since there was no scope to issue such a charge-sheet after recording of evidence in terms of Rule 48 of the Rules. Learned Counsel for the respondents has submitted that the chargesheet dated November 13th, 2000 was issued for the purpose of amending the previous charge-sheet dated February 26th, 2000. Her contention is that in view of the evidence recorded by the officer detailed, the necessity for amending the initial charge-sheet was felt by the competent authority. ( 13 ) ON the basis of the case pleaded by the respondents in their opposition, I find that the charge-sheet dated November 13th, 2000 was not issued after taking a decision by the commandant for the petitioners trial by the summary security force Court. After such a decision, if taken, the competent authority was to issue the requisite charge-sheet in terms of rule 53 (2) of the Rules, and such charge-sheet woufd have been an antecedent step to the trial. There can be no doubt that the charge-sheet dated November 13th, 2000 was issued illegally, because after recording of evidence there was no scope to amend the initial charge-sheet. ( 14 ) THE commandant notified the date fortrial by the summary security force Court, and accordingly the trial was held on November 16th, 2000. On the same day the summary security force Court passed the order to dismiss the petitioner on the ground that the allegations made against him had been proved. ( 14 ) THE commandant notified the date fortrial by the summary security force Court, and accordingly the trial was held on November 16th, 2000. On the same day the summary security force Court passed the order to dismiss the petitioner on the ground that the allegations made against him had been proved. ( 15 ) LEARNED Counsel for the petitioner has contended that the order dated November 16th, 2000 issued by the summary security force Court does not contain any reason at all, and it also does not contain the alleged findings of the summary security force Court. Learned Counsel for the respondents submits that in view of provisions in Rule 159 of the Rules, the summary security force Court was to promulgate the sentence immediately, and hence there was no scope at all for it to record the findings orto give the reasons in support of its decision and order. Her contention is that the summary security force Court was not under any obligation to record the findings or to give the reasons, since the provisions of the Act and the Rules did not expressly cast such an obligation on it. ( 16 ) I find that the order dated November 16th, 2000 passed by the summary security force Court is, as it were, a typical instance of arbitrariness on the part of the statutory authority. The Summary Security Force Court was trying the petitioner on the ground that he had allegedly committed offence under provisions of the Act. While it spoke about its findings in support of its decision , it refrained itself from recording such findings. I find absolutely no substance in the contention that in view of the provisions in Rule 159 of the Rules, it was under no obligation to record its findings and reasons. Recording of reasons in support of a decision is one of the fundamental requirements of the rule of law, and when the Summary Security Force Court was acting as a quasi-judicial authority, it was definitely under the obligation to record its findings and reasons in support of the decision to punish the petitioner. Hence the order dated November 16th, 2000 of the Summary security Force Court is liable to be set aside. ( 17 ) BEING aggrieved by the order of the summary security force Court, the petitioner duly presented a petition under Section 117 of the Act. Hence the order dated November 16th, 2000 of the Summary security Force Court is liable to be set aside. ( 17 ) BEING aggrieved by the order of the summary security force Court, the petitioner duly presented a petition under Section 117 of the Act. In his petition he took many grounds for challenging the decision of the summary security force Court, and also for challenging the steps taken by the commandant. Such petition rejected by the competent authority without recording any reason. ( 18 ) LEARNED Counsel for the petitioner submits that the decision of the authority under Section 117 is liable to be quashed on the ground that it contains no reason at all. Learned Counsel for the respondents submits that under Section 117 the authority concerned was under an obligation to record reasons. She submits that since the decision given by the authority under section 117 does not contain any reason, the matter can at best be remitted to the competent authority for a fresh decision. She submits that since all the steps were taken and the decisions were given after following the relevant rules and the principles of natural justice, in view of the decision reported at 2003 (3) SCC 583 (Lalit Popli v. Canara Bank and Ors.) this Court, in exercise of its writ jurisdiction, is not empowered to sit in appeal over the decisions given by the respondents. ( 19 ) AS will appear from the findings recorded hereinbefore no occasion has arisen for this Court to adjudicate the case on merits of the allegations made against the petitioner. Whether the petitioner was guilty of the offence alleged or whetherthe allegations levelled against him were proved, those were questions to be decided by the competent authorities, and this Court has not been invited to enter into them. Hence I do not see how the decision relied on helps the respondents. ( 20 ) FOR the foregoing reasons, the writ petition is allowed to the extent indicated below. ( 21 ) THE decisions given by the authority under Section 117 and the summary security force Court on November 16th, 2000 are hereby quashed. The charge-sheet dated November 13th, 2000 issued by the commandant is also quashed. ( 20 ) FOR the foregoing reasons, the writ petition is allowed to the extent indicated below. ( 21 ) THE decisions given by the authority under Section 117 and the summary security force Court on November 16th, 2000 are hereby quashed. The charge-sheet dated November 13th, 2000 issued by the commandant is also quashed. ( 22 ) THE commandant is hereby directed to take a decision in the matter on the basis of the initial charge-sheet dated February 26th, 2000 and the evidence recorded by the officer detailed in connection with such charge- sheet. Such decision shall be taken by the commandant in terms of Rule 51 of the Rules, and the decision shall be taken within four weeks from the date of receipt of a copy of this judgment and order by him. The decision shall be a reasoned one, and it shall be communicated to the petitioner immediately after it is taken. ( 23 ) THE question granting benefits to the petitioner shall be dependent on the decision that will be taken by the commandant under Rule 51. If the decision goes in favour of the petitioner, then all the benefits to which he will be entitled shall be released without any unreasonable delay. ( 24 ) IN the facts and circumstances of the case, I am not inclined to make any order for costs in favour of the petitioner. Hence there will be no order for costs in the writ petition. Urgent certified xerox copy of this judgment and order shall be given to the parties, if applied for.