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2012 DIGILAW 831 (JHR)

Paras Singh v. Union of India

2012-06-18

ALOK SINGH

body2012
ORDER By this Court - Petitioner has invoked jurisdiction of this Court under Article 226 of the Constitution of India assailing the order dated 17.06.1999 passed by Commandant 81 B.N.B.S.F. Dismissing the petitioner from the post of Constable B.S.F. (Annexure2) and the order dated 20.09.2000 in statutory appeal confirming the order of dismissal (Annexure3) passed by Director General of B.S.F. 2. Brief facts leading to the dismissal of the petitioner from the force as setup in the counter affidavit filed by Ravi Kumar Ponoth, Dy. Inspector General, B.S.F. inter alia are as under : I. On 13th September 1998, while 10 Battalion B.S.F. was deployed on Indo Bangladesh Border at Tura. Petitioner (No. 86003230 Constable Paras Singh) and No. 89455507 Constable Pradeep Phukan deployed at BOP Nokchi were on Observation Post duty at Observation Post No. 2 (OP No. 2) and No. 92403730 Constable Yashpal and No. 93002533 Constable Subhash Singh were on Observation Post duty at Observation Post No. 1 from 0600 hrs. to 1200 hrs. The task of Observation Post No. 1 was to dominate border from BP No. 1104 to BP No. 1105/3S by observation and Observation Post No. 2 was to do patrolling from BP No. 1105/3S to BP No. 1107 as there was no tower in that area. II. All the above personnel were also issued with 03 Magazine and 50 rounds each. In addition to that Constable Subhash Singh was issued with a telephone, Constable Yashpal and Constable Pradeep Phukan with binoculars and petitioner-Constable Paras Singh with a wireless set. III. No. 86003230 Constable Paras Singh and No. 89455507 Constable Pradeep Phukan performed duty in their area of responsibility till 0840 hrs. and decided at their own to go to Observation Post No. 1, thus, leaving their assigned place of duty unmanned. They reached Observation Post No. 1 at about 0845 hrs. and further went to BP No. 1104/6S and 7S in front of a Bangladesh village Nokchi with the intention for womanizing in the BD village. All the 04 personnel left their telephone/wireless set and Binoculars at Observation Post No. 1 before going towards BD village Nokchi. After reaching near BP No. 1104/6S, they split themselves into two parties ie. Constable Pradeep Phukan and Constable Yashpal in one group and Constable Subhash singh and constable Paras Singh in another group. All the 04 personnel left their telephone/wireless set and Binoculars at Observation Post No. 1 before going towards BD village Nokchi. After reaching near BP No. 1104/6S, they split themselves into two parties ie. Constable Pradeep Phukan and Constable Yashpal in one group and Constable Subhash singh and constable Paras Singh in another group. Constable Pradeep Phukan and Constable Yashpal decided to go first to BD village, Nokchi followed by Constable Subhash Singh and Constable Paras Singh. Constable Yashpal and Constable Pradeep Phukan entered Bangladesh via BP No. 1104/6S while Constable Subhash Singh and Constable Paras Singh waited near BP No. 1104/7S for their turn. IV. Constable Pradeep Phukan crossed International Border and went to a particular house inside the Bangladesh village Nokchi with his personnel weapon. Constable Yashpal accompanied him for some distance but did not enter the house. Constable Paras Singh and Constable Subhash Singh remained inside Indian territory and kept waiting. V. Meanwhile, Bangladesh Rifle got information about this and came near the house. Constable Yashpal having seen the Bangladesh Rifle shouted at Constable Pradeep Phukan and ran back to Indian territory. Constable Pradeep Phukan fired towards approaching BDR men and thereafter ran towards Indian territory whereas Constble Yashpal managed to come back safely. Meanwhile, Constable Phukan got trapped by BDR men and was shot at while in BD territory. Thereafter, Bangladesh Rifle personnel took Constable Pradeep Phukan to their post and informed their Head Quarters from where the matter wad directly conveyed to DG B.S.F. over telephone. VI. Constable Yashpal, Constable Subhash singh and Constable Paras Singh ran towards Observation Post point and did not bother to take any action against the BDR men and also to save Constable Pradeep Phukan. VII. An SCOI was ordered vide SHQ B.S.F. Shillong Order No. DIG/LAW/1031/10/(5)/98/02/326/33 dated 14th September 1998. The court had blamed Constable Paras Singh, Constable Yashpal and Constable Subhash Singh and recommended disciplinary action against them which was further approved by the DIG, B.S.F. Shillong and I.G., B.S.F., AMM&N Ftr Shillong. VIII. All these three persons were attached with 81 Bn B.S.F. For disciplinary purpose and Record of evidence (ROE) was conducted by Shri Pankaj Gommer, 2 IC, 81 Bn, B.S.F. vide 81 Bn B.S.F. order No. 81/Estt/Nokchi/Disc(10)/98/1135154 dated 05.10.1998 and subsequently tried by Summary Security Force Court (SSFC) chaired by Commandant 81 Bn B.S.F. and subsequently they were dismissed from service. All these three persons were attached with 81 Bn B.S.F. For disciplinary purpose and Record of evidence (ROE) was conducted by Shri Pankaj Gommer, 2 IC, 81 Bn, B.S.F. vide 81 Bn B.S.F. order No. 81/Estt/Nokchi/Disc(10)/98/1135154 dated 05.10.1998 and subsequently tried by Summary Security Force Court (SSFC) chaired by Commandant 81 Bn B.S.F. and subsequently they were dismissed from service. The petitioner, Constable Paras Singh was dismissed from service on 17 June 1999. 3. I have heard Mr. V. Shivnath, Sr. Advocate, assisted by Nawin Kr. Singh and Ashok Kr. Sinha, Advocates appearing for the petitioner and Mr. Mokhtar Khan, C.G.C. appearing for the respondents and have carefully perused the record. 4. From the facts narrated in the counter affidavit of Shri Ravi Kumar Ponoth, D.I.G., it is, thus, clear that on the date of incident petitioner and Constable Subhash Singh did not cross the International Border and remained inside the Indian territory. It is also identified that only Constable Pradeep Phukan and Constable Yashpal illegally crossed the International Border and have entered into the Bangladesh territory; Bangladesh Rifles killed Constable Pradeep Phukan within Bangladesh territory while Constable Yashpal managed to came back into the Indian territory. 5. Petitioner was chargesheeted on three accounts. Chargesheet reads as under : The accused No. 86003230 Ct Paras Singh of 10 Bn BSF attached with 81 Bn BSF is charged with : FIRST CHARGE BSF ACT 1968 Sec. 14 (C) IN THE PRESENCE OF THE ENEMY SHAMEFULLY CASTS AWAY HIS ARMS AND AMN. in that he, at 0930 hrs. on 13.09.98 while working as O.P. No. II at BOP Nokchi is behaved in cowardice manner before the armed miscreants against whom it was his duty to take action and did not open fire. SECOND CHARGE BSF ACT 1968 Sec. 16(d) LEAVING HIS PICOUET/O.P. AREA WITHOUT ORDER FROM HIS SUPERIOR OFFICER. in that he, on 13.09.98 at about 0930 hrs while performing O.P. duties in Nokchi BOP area at O.P. No. II in area B.P. No. 11051107 left the said O.P. area without orders from his superior officer. THIRD CHARGE BSF ACT 1968 Sec. 40 AN OMISSION PREJUDICIAL TO GOOD ORDER AND DISCIFPLINE OF THE FORCE. in that he, on 13.09.98 at about 0930 hrs did inform about the firing to his BOP Commander, Nokchi, when they were fired upon by miscreants. 6. THIRD CHARGE BSF ACT 1968 Sec. 40 AN OMISSION PREJUDICIAL TO GOOD ORDER AND DISCIFPLINE OF THE FORCE. in that he, on 13.09.98 at about 0930 hrs did inform about the firing to his BOP Commander, Nokchi, when they were fired upon by miscreants. 6. Commandant B.S.F. has found all the three charges proved against the petitioner. However, during the statutory appeal, Director General, B.S.F. in his impugned order dated 25.02.2003 has observed that sentence provided for an offence under Section 14(c) of the BSF Act is death and as per clause (c) of Sub-Rule (2) of BSF Rule 78, a BSF Court shall not accept a plea of 'guilty' if the accused is liable, if convicted, to be sentenced to death. However, dismissed the appeal filed by the petitioner. 7. This is admitted fact that petitioner did not leave the Indian territory and never entered into the Bangladesh Border. Constable Phukan (deceased) as well as Constable Yashpal have illegally entered into the Bangladesh Border wherein they were noticed by Bangladesh Rifle Jawans. Constable Phukan was shot dead by the Bangladesh Rifles at about 300 yards in the Bangladesh territory. It is nowhere stated by the respondents in any of the counter affidavit and supplementary counter affidavit or in the statements of witnesses examined by the BSF Court that Bangladesh Rifle Jawans ever tried to enter in the Indian territory or ever fired on the Indian Post. Therefore, there seems to be no occasion for the petitioner to violate the ceasefire and to fire on the Bangladesh Rifle who were well within their jurisdiction to shot dead Constable Phukan who has illegally entered into the Bangladesh territory for womanizing purpose and has entered into the Bangladesh national's house. Therefore, charge No. 1 against the petitioner cannot be said to be proved. 8. As far as charge No. 2 is concerned that the petitioner has left the observation post No. 2 and was found standing near the observation post No. 1 without there being any authority, direction or command from the superiors. From the statement of Constable Subhash Singh, Yashpal and Head Constable Guman Singh, during the trial before the B.S.F. Court, it is, thus, clear that the petitioner never left the Indian territory and remained within the Indian territory through out. However, he has left the observation post no. 2 without there being any command from the superiors. From the statement of Constable Subhash Singh, Yashpal and Head Constable Guman Singh, during the trial before the B.S.F. Court, it is, thus, clear that the petitioner never left the Indian territory and remained within the Indian territory through out. However, he has left the observation post no. 2 without there being any command from the superiors. Possibility cannot be ruled out that he would have reached near the post no. 1 after hearing the gunshot as other jawans have reached there from the nearby BOP after hearing gunshots. No untoward incident is reported within the area (observation post no. 2), therefore, dismissal from service or awarding of the imprisonment for an offence under Section 16(b) seems to be totally unjustified and instead of severe punishment, petitioner could have been awarded lesser punishment as provided under Section 48 of the Act. 9. During the trial before the BSF Court, Constable Subhash Singh was examined. Constable Subhash Singh, who was allegedly present on the spot on the date of occurrence, has stated that Constable Paras Singh did not leave the Indian territory and he was carrying radio set and on hearing gun shot by Bangladesh Rifle tried to contact the BOP Nokchi to report the matter, but could not make contact the BOP Nokchi, on not getting any contact with the BOP Nokchi on radio set, he (Constable Subhash Singh) told him (petitioner) that he was going to contact BOP Nokchi on telephone. However, in the meanwhile, they have noticed that few BSF jawans were coming from BOP after hearing the gun shot; therefore, he (Constable Subhash Singh) leaving behind petitioner (Constable Parash Singh) on the post to wait for the jawans coming from BOP and to bring them towards the direction of BP No. 1104S/7 proceeded towards BP No. 1104S/7 along with Constable Yashpal. 10. From the statement produced hereinabove, it is clear that Constable Paras Singh petitioner was present on the post within the Indian territory and he tried to make contact on radio set, however, could not establish contact on radio set. Therefore, Constable Subhash Singh to make contact on telephone and to find out what has happened proceeded towards BP No. 1104S/7. In view of the above, charge No. 3 cannot be said to be proved against the petitioner. 11. Therefore, Constable Subhash Singh to make contact on telephone and to find out what has happened proceeded towards BP No. 1104S/7. In view of the above, charge No. 3 cannot be said to be proved against the petitioner. 11. It is important to mention herein that offences under Section 14(c) of the B.S.F. Act is punishable with death while offence under Section 16(b) is punishable with imprisonment for a term which may extend to 14 years and offence under Section 40 is punishable with imprisonment for a term which may extend to 7 years. Therefore, all the offences either under Section 14(c) or under Section 16(b) or under Section 40 of the BSF Act must be proved beyond doubt and no inference without there being any cogent evidence should be drawn against the accused to hold him guilty. Although BSF Court has jurisdiction either to award sentences as provided under the sections mentioned hereinabove or to impose other penalties/punishments which are provided under Section 48 of the BSF Act which includes dismissal from service, reduction to the ranks, forfeiture of seniority, forfeiture of service for the purpose of increased pay and pension, reprimand and stoppage of pay and allowances. 12. In the present case, although BSF Court has not awarded imprisonment and has awarded alternate punishment i.e. dismissal from service, however, fact remains that charges against the petitioner were not proved beyond reasonable doubt to justify the dismissal from the service. 13. It is also important to mention herein that it is admitted fact that petitioner was having good and clean past record of service. Moreover, as per the contention of the petitioner, in the rejoinder affidavit, while the petitioner was held guilty and dismissed from the service, but family of Phukan who has entered into Bangladesh territory for womanizing purpose and shot dead therein is getting family pension. No reply has been filed to this aspect. 14. In the facts and circumstances of the present case and as observed hereinabove, charges No. 1 and 3 against the petitioner could not be proved. Hence, petitioner is exonerated and acquitted from the charges No. 1 and 3. In the opinion of this Court punishment of dismissal from the service on account of charge No. 2 seems to be totally unjustified. For charge No. 2, petitioner ought to have been awarded alternate diluted punishment as provided under Section 48 of the Act. Hence, petitioner is exonerated and acquitted from the charges No. 1 and 3. In the opinion of this Court punishment of dismissal from the service on account of charge No. 2 seems to be totally unjustified. For charge No. 2, petitioner ought to have been awarded alternate diluted punishment as provided under Section 48 of the Act. Neither dismissal nor sentences seems to be justified. 15. Therefore, the present petition is allowed. The impugned orders are hereby set aside. Petitioner is reinstated to his post. Since the petitioner has not worked from the date of dismissal, he shall not be paid any salary. However, he shall be paid Rs. 2 lakhs as lumpsum compensation. He shall be entitled for all consequential benefits including continuity of the service. However, liberty is granted to the respondent to consider the case of the petitioner sympathetically for awarding the less punishment on account of charge No. 2 in accordance with Section 48 of the B.S.F. Act. Petition allowed.