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2006 DIGILAW 2299 (PNJ)

Ramvir Singh v. Union of India

2006-05-23

RAJIVE BHALLA

body2006
JUDGMENT RAJIVE BHALLA, J. 1. The petitioner was enrolled as a Constable in the BSF on 13.4.1991. He was detailed for collection of official Dak from Central diary, FHQ BSF, New Delhi. Accordingly, he was sent to SHQ BSF Amritsar, vide movement order No.Estt/3002/24/MO/2000/2828-30, dated30.7.2000, alongwith No.89151257 Const Kalipada Mandal of 140 Bn BSF for further move to Central Diary, FHQ BSF, New Delhi, and necessary letters etc. were provided to him. He reached New Delhi on 31.7.2000 and collected the Dak from Central Diary, FHQ, BSF, New Delhi on 3.8.2000,as per entry, made in his movement order. After collection of Dak, the petitioner telephoned the Second-in- Command of his Unit on 3.8.2000 and told him that some work was yet to be done. The Second-in-Command, realizing that 5th and 6th August 2000 were holidays, directed the petitioner to report back forthwith by boarding the evening train for Amritsar. The petitioner did not do so and was marked absent from 4.8.2000 to 7.8.2000.On his return, as he could not explain his conduct, he was awarded seven days RI in force custody for absence without leave. While in force custody and while undergoing rigorous imprisonment, the petitioner refused to take meals from 10.8.2000 to 11.8.2000 in protest against the punishment and also refused to perform the pack drill on all seven days. Keeping in view the aforementioned facts, the petitioner was tried by the Summary Security Force Court, under Section 40 of the Border Security Force Act, 1968 (for short herein after referred to as “the Act”), on two charges, namely, for an act prejudicial to good order and discipline of the force. On being made aware of the charges, the petitioner pleaded guilty to both charges and was sentenced to dismissal from service. The petitioner thereafter preferred a statutory petition, under Section 117 of the Act. Vide order dated28.6.2001, the said petition was dismissed. 2. The petitioner has impugned the proceedings of the Summary Security Force Court, the order of punishment and the order of confirmation thereof. 3. Counsel for the petitioner has confined arguments to two submissions, namely, the petitioner’s right to a free and fair trial stood vitiated, and the punishment of dismissal is disproportionate to the offence alleged. 4. 2. The petitioner has impugned the proceedings of the Summary Security Force Court, the order of punishment and the order of confirmation thereof. 3. Counsel for the petitioner has confined arguments to two submissions, namely, the petitioner’s right to a free and fair trial stood vitiated, and the punishment of dismissal is disproportionate to the offence alleged. 4. In order to substantiate his first plea, counsel for the petitioner contends that the petitioner remained in force custody from 10.8.2000 to 16.8.2000, in close arrest from 16.8.2000 to 7.9.2000 and, therefore, he was not provided time to consult a civil counsel or pray for nomination of a civil counsel/a friend of the accused. The charge sheet was served on4.9.2000 and the trial commenced on 8.9.2000. It was impossible for the petitioner to engage the services of a civil counsel or to select a friend of the accused, in the above circumstances, thus, violating the provisions of Rule 157 of the Border Security Force Rules (herein after to be referred as “the Rules”), as also his right to a fair and just trial. 5. In support of the second contention, it is urged that as the petitioner joined service in 1991, his long service and unblemished record should have weighed with the authorities, while pronouncing sentence. Dismissal from service is an extreme punishment that should not have been imposed. 6. Counsel for the respondents, on the other hand, contends that though the petitioner remained in close arrest, upto his trial, this did not prevent him from forwarding a request to the authority concerned, for engaging the services of a civil counsel. The petitioner failed to forward any such request, at any stage. It is further contended that the petitioner did not raise any such grievance whether during the proceedings of the Summary Security Force Court, or in his petition, under Section 117 of the Act, but has raised this plea, for the first time, in these proceedings. It is further argued that the BSF is a para military force and discipline is the essence of its existence. An indisciplined force cannot discharge its functions effectively. The sentence is, in no manner, disproportionate to the offence, complained of. The petitioner, while undergoing imprisonment, refused to perform pack drill and take meals. This act of indiscipline and disobedience could not be condoned. An indisciplined force cannot discharge its functions effectively. The sentence is, in no manner, disproportionate to the offence, complained of. The petitioner, while undergoing imprisonment, refused to perform pack drill and take meals. This act of indiscipline and disobedience could not be condoned. The fact that the petitioner was serving for a long period of time, is not a mitigating circumstance that would outweigh the petitioner’s indiscipline. 7. I have heard learned counsel for the parties and perused the record. 8. As noticed herein above, the petitioner was sentenced to seven days rigorous imprisonment for his failure to report to his Unit on time. During his sentence, he refused to accept food and also failed to perform pack drill, the latter, being an integral part of the punishment. This led to the petitioner being arraigned before the Summary Security Force Court for commission of an act prejudicial to good order and discipline of the force, as prescribed under Section 40 of the Act. Two charges were framed, which read as follows :- “Charge-I (BSF Act, Section 40) : An act of prejudicial to good order and discipline of the force. In that he, on 10.8.2000, at about 2030 hrs while in prisoners cell for 7 days RI denied to take meals w.e.f10.8.2000 to 11.8.2000 in presence of Guard, Guard Comdr, Duty NCO, Duty SO, BHM and SI/Adjt. Charge-II (BSF Act, Section 40) : An act of prejudicial to good order and discipline of the force. In that he, on 10.8.2000, while undergoing07 days RI w.e.f 10.8.2000 to 16.8.2000 refused to do pack drill on all the seven days during the RI awarded to him w.e.f 10.8.2000 to 16.8.2000 which is total defiance of authorities. “ 9. The petitioner was served with a charge sheet on 4.9.2000. The proceedings of Summary Security Force Court commenced on 8.9.2000. Charges were read out and explained to the petitioner. The petitioner pleaded guilty. 10. The contention of counsel for the petitioner that serious prejudice has visited the petitioner, as rights, guaranteed to him, under Rule 157 of the Rules, have been violated, is without merit. The petitioner was served with a copy of the charge sheet, list of prosecution witnesses, and a copy of the record of evidence alongwith the exhibits on 4.9.2000. 10. The contention of counsel for the petitioner that serious prejudice has visited the petitioner, as rights, guaranteed to him, under Rule 157 of the Rules, have been violated, is without merit. The petitioner was served with a copy of the charge sheet, list of prosecution witnesses, and a copy of the record of evidence alongwith the exhibits on 4.9.2000. He was also asked to take the assistance of any person or any officer of the BSF as a friend of the accused. On 6.9.2000, he was once again requested to provide a name of the friend of the accused by 7.9.2000, failing which the respondents would nominate a friend of the accused. The petitioner, however, failed to nominate a friend of the accused or forward any request to engage the services of a civil counsel. Consequently, Shri Ashim Biswas, Assistant Commandant was nominated as a friend of the accused. During the proceedings of Summary Security Force Court, charges were read out and explained to the petitioner. The petitioner pleaded guilty to both charges. He was informed about the general effect of the acceptance of his guilt, and the procedure, required to be followed consequent to the said plea. The Court thereafter proceeded to satisfy itself that the petitioner under stood the charges and the effect of the acceptance of guilt. The petitioner was asked, if he desired to make any statement with reference to the charges or in mitigation of the punishment. He replied that he should be pardoned. A perusal of these facts reveals that the petitioner did not urge before the Summary Security Force Court that his defence was, in any manner, compromised for absence of a civil counsel or that his confinement in close arrest, prevented him from putting forth an effective defence. The petitioner was asked to select a friend of the accused but he failed to do so, compelling the respondents to nominate Shri Ashim Biswas, Asstt. Commandant, as a friend of the accused. It is, thus, apparent that no right, available to the petitioner, much less a right, guaranteed under Rule157 of the Rules, was violated. I am satisfied from a perusal of the record that provisions of the Act and the Rules have not been violated, in any manner and the petitioner’s right to a fair trial have been given adhered to. 11. I am satisfied from a perusal of the record that provisions of the Act and the Rules have not been violated, in any manner and the petitioner’s right to a fair trial have been given adhered to. 11. The other contention, namely, that the sentence imposed, is disproportionate to the offence, in my considered opinion, cannot be accepted. No mitigating circumstances, as would warrant a conclusion contrary to the sentence imposed, exist. The petitioner was a member of the disciplined force, required to maintain discipline and obedience to any punishment imposed. Armed and paramilitary forces, by the nature of their duties they perform, require a high standard of discipline and obedience. Obedience to orders and cast-iron discipline, is the bedrock upon which the efficiency of armed and paramilitary forces rests. The standard of discipline and obedience required is best left to the armed and paramilitary forces. The fact that the petitioner was in service from 1991 cannot be a circumstance to hold that the punishment imposed was excessive or disproportionate to the offence committed. 12. In view of what has been stated above, the present petition, being devoid of any merit, is dismissed.