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2011 DIGILAW 367 (GAU)

Dibas Sangma v. Union of India

2011-04-27

BIPLAB KUMAR SHARMA

body2011
JUDGMENT B.K. Sharma, J. 1. Heard Mr. P. Saha, learned Counsel for the Petitioner as well as Mr. P.K. Biswas, learned Assistant Solicitor General of India for the Respondents. 2. By means of this writ petition, the Petitioner has put to challenge the Annexures-H, K and N orders dated 10-10-98, 15-10-98 and 26-4-2000. 3. While by the first order dated 10-10-1998, it was notified that Summary Security Force Court (for short, 'SSFC) proceedings in respect of the Petitioner who was serving in the BSF as Constable would be held on 15-10-1998 indicating therein the composition of the Court, by the second order, the Petitioner pursuant to the finding of the SSFC, was imposed with the penalty of dismissal from the service. Annexure-N order dated 26-4-2000 is the order by which the Petitioner was intimated about the rejection of his representation dated 29-12-99 addressed to the DIG, BSF wherein he prayed for reinstatement in service upon setting aside the penalty of dismissal from service. 4. Shortly stated, the facts leading to filing of the instant writ petition are that the Petitioner while was in service went on leave on 5-2-98 and thereafter did not return to duty on expiry of leave. The Petitioner was appointed as Constable in the BSF and the act of unauthorized absence from duty was in continuation of the leave that was granted to him on 5-2-98. In paras 6 and 7 of the writ petition, the Petitioner has stated thus: 6. That be that as it may the Petitioner was supposed to resume duties on 5-4-1998 but as the ailment of depression amounting to insanity the Petitioner did not and could not resume duties and he was under treatment at Agartala during the period. The Petitioner after being a bit deter and after obtaining fitness certificate went to Battalion Headquarter at Gakulnagar to resume duties submitting the medical certificates. Since the Petitioner did not retain any copy of the medical certificate he is unable to annex copy thereof. 7. that during the period from 5-4-1998 to 26-6-1998 some communications were made to the Petitioner by the office of the Commandant, 5 Bn. BSF asking the Petitioner to resume duties, which were received by the family of the Petitioner but as the Petitioner was then not quite normal the said communications were not handed over to the Petitioner by his family. BSF asking the Petitioner to resume duties, which were received by the family of the Petitioner but as the Petitioner was then not quite normal the said communications were not handed over to the Petitioner by his family. One copy each of such communication, dated 20-4-1998 and 30-4-1998 are appended hereto as Annexures-A and B respectively. In this connection, it is pertinent to point out that the Petitioner received the aforesaid papers after he was recovered partially. 5. From the above statement made by none other than the Petitioner himself, what is seen is that the unauthorized absence of the Petitioner from duty is an admitted position. The Petitioner has annexed the intimation furnished to him vide Annexures A, B and C letters dated 20-4-1998, 30-4-1998 and dated Nil July, 1998 about which the Petitioner has made a mention in para 7 of the writ petition. In spite of receipt of such communications directing him to resume duties the Petitioner did not do so. 6. It appears that later on, the Petitioner resumed duty and on resumption of duty he was under close arrest as per the provisions of Section 57 of the BSF Act, 1968. 7. The Petitioner was charged with absenting himself without leave. The charge was under Section 19(a) of the BSF Act. According to the charge, the Petitioner absented himself without leave from the Unit line area with effect from 5-4-1998 and reported back voluntarily on 26-6-1998. 8. Although it is the plea of the Petitioner that in the proceeding he was not provided with 'Friend of the accused', but on perusal of the Annexure-H order dated 10-10-1998, it is clear that he had engaged one Lekh Ram as the 'Friend of the accused'. In this connection Annexure R-V letter dated 10-10-1998 annexed to the counter affidavit may also be referred to by which the Petitioner furnished the intimation to the Commandant that said Lekh Ram would act as his 'Friend' in the SSFC trial. Annexure-G series are the records of the evidence in the case initiated against the Petitioner from which also it is clear that the charge of unauthorized absence against the Petitioner was clearly established. The records have revealed that the Petitioner was provided with all the opportunities of being heard, but he declined to make any defence statement. 9. Mr. Annexure-G series are the records of the evidence in the case initiated against the Petitioner from which also it is clear that the charge of unauthorized absence against the Petitioner was clearly established. The records have revealed that the Petitioner was provided with all the opportunities of being heard, but he declined to make any defence statement. 9. Mr. P.K. Biswas, learned Assistant Solicitor General of India has produced the original records of the proceeding on perusal of which it appears that the Petitioner also pleaded guilty to the charge of unauthorized absence. 10. Mr. P. Saha, learned Counsel for the Petitioner upon a reference to the Annexure-G show cause notice dated 29-7-1998 has submitted that in the said show cause notice there being a reference of 28 days RI in forced custody by order dated 25-7-98, the authority could not have taken up the Petitioner by way of SSFC trial for the same offence. However, Mr. Biswas, learned Assistant Solicitor General of India has produced the records pertaining to the said order dated 25-7-1998 which reveals that 28 days RI in forced custody was for the period of absence with effect from 6-6-97 to 3-10-97 and thus, did not have anything to do with the unauthorized absence for which the Petitioner was taken up for SSFC trial. 11. On perusal of the aforesaid two paragraphs made in the writ petition, the fact of admission of the charge is writ large on the face of it. As has been held by the Apex Court in the case of Channabasappa Basappa Happali v. The State of Mysore reported in AIR 1972 SC 32 , admission of fact as reflected in the charge itself amounts to admission of guilt. In the said case, a police officer after remaining absent from duty, raised the issue of violation of the principles of natural justice. The court having noticed the fact of admission of unauthorized absence from duty held that such admission amounted to admission of guilt. 12. In the said case, a police officer after remaining absent from duty, raised the issue of violation of the principles of natural justice. The court having noticed the fact of admission of unauthorized absence from duty held that such admission amounted to admission of guilt. 12. In the case of Union of India vs. Mithilesh Singh reported in 2000(3) GLT 62 passed by a Division Bench of this Court which has been affirmed by the Apex Court in Mithilesh Singh vs. Union of India and other reported in (2003)3 SCC 309 , it has been held that the unauthorized absence from duty by a member of the disciplined force may entail the penalty of removal from service. In the said case, the learned Single Judge of this Court although had noticed the fact of establishing the charge of unauthorized absence from duty directed the authority to impose any other penalty other than the penalty of dismissal and removal from service. On appeal such direction of the learned Single Judge was set aside by the Division bench of this Court which was carried on appeal to the Apex Court by the delinquent officer. The Apex Court not only affirmed the judgment of the Division Bench but also held that unauthorized absence from duty by a member of a disciplined force may entail removal from service. 13. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed. Petition dismissed.