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2014 DIGILAW 675 (GAU)

Ghana Kanta Deka v. Union of India & Ors.

2014-06-26

A.M.SAPRE, UJJAL BHUYAN

body2014
Ujjal Bhuyan, J. -- This appeal has been filed against the judgment and order dated 26.11.2013, passed by the learned Single Judge, dismissing the writ petition filed by the appellant against the order dated 08.09.2006, passed by the Commandant of 135 Bn., Border Security Force (BSF), dismissing him from service of BSF. 2. Appellant was serving as Constable in BSF. At the relevant point of time, he was posted at 135 Bn. Head Quarter, Fatikchera in the State of Tripura and was assigned duties of “Dak Runner”. 3. An offence report was submitted against the appellant charging him with dishonest misappropriation of property belonging to persons subject to the BSF Act, 1968. Following a Summary Security Force Court (Summary Court) proceeding, appellant was dismissed from service by the Commandant vide order dated 08.09.2006. Statutory petition filed by the petitioner against the dismissal order was rejected by the Director General, BSF, vide order dated 06.02.2007. 4. Aggrieved, appellant, as the writ petitioner, challenged the said dismissal order before this Court by filing a writ petition, which was registered and numbered as WP(C) No.2163/2008. Challenge to the dismissal order was made on the ground that the procedure prescribed under the BSF Act, 1968, as well as under the BSF Rules, 1969 were not followed, resulting in denial of fair procedure to the appellant which adversely affected the decision making process. Appellant was forced to depose against himself and, therefore, it was a clear case of self-incrimination. Appellant was also compelled to accept a defence assistant of the choice of the Commandant who misguided him. Record of the proceedings of the Summary Court was not sent to the higher authority for confirmation as is the requirement under section 115 of the BSF Act, 1968. Appeal filed by the appellant was disposed of mechanically without proper application of mind. 5. The writ petition was opposed by the respondents, who filed a detailed affidavit. Stand taken in the said affidavit was that appellant was assigned the duties of dak runner from Battalion Head Quarter to Frontier Head Quarter, to post offices at Salbagan/Agartala and to the State Bank of India branches at Salbagan/Agartala. He used to carry money of the battalion members to the bank and post offices for remittance to their families. Stand taken in the said affidavit was that appellant was assigned the duties of dak runner from Battalion Head Quarter to Frontier Head Quarter, to post offices at Salbagan/Agartala and to the State Bank of India branches at Salbagan/Agartala. He used to carry money of the battalion members to the bank and post offices for remittance to their families. During the months of May/June, 2006, some of the battalion personnel, who had given money to the appellant for remittance to their families, reported that their families had not received the money sent by them. On the basis of such complaint, appellant was charged as above. He was tried by the Summary Court in which he admitted to have misappropriated the amount. Following the procedure as prescribed under the BSF Act and the BSF Rules, appellant was dismissed from service. His statutory petition was duly considered by the higher authority, but was rejected as it was found that there was no ground to interfere with the punishment imposed. Further appeal filed by the appellant was not entertained as the statutory petition of the appellant was already considered by the authority. The respondents denied the grounds urged by the appellant and sought dismissal of the writ petition. 6. Learned Single Judge by the judgment and order dated 26.11.2013 found that the procedure followed in the Summary Court was consistent with the procedural requirements and no procedural infirmity was found. Learned Single Judge also declined to entertain the plea of disproportionality of the penalty imposed by holding that in the facts and circumstances of the case, a lesser punishment would not be justified. Accordingly, the writ petition was dismissed. 7. Hence this appeal. 8. We have heard Mr. KK Mahanta, learned Senior Counsel assisted by Ms. RD Sihota, learned counsel for the appellant and Mrs. R Bora, learned Central Govt. Counsel for the respondents. 9. Mr. Mahanta, learned Senior Counsel has elaborately referred to the various provisions of the BSF Act and the BSF Rules to show that the procedure prescribed for imposition of a penalty like dismissal from service following trial by a Summary Court were not followed thereby denying the appellant a fair procedure to defend him. Counsel for the respondents. 9. Mr. Mahanta, learned Senior Counsel has elaborately referred to the various provisions of the BSF Act and the BSF Rules to show that the procedure prescribed for imposition of a penalty like dismissal from service following trial by a Summary Court were not followed thereby denying the appellant a fair procedure to defend him. He submits that it was not a case of permanent misappropriation by the appellant, but a case of temporary misappropriation, that too, not money belonging to the organisation i.e., BSF, but personal money belonging to various personnel of the battalion. So there was no misappropriation of Govt. money. Appellant had in fact, returned the money to some and was in the process of returning the remaining amount to the other personnel. Learned Senior Counsel submitted that appellant was compelled to do this because of an unfortunate incident which had occurred in the month of August, 2005, while he was on his way to the Salbagan Branch of State Bank of India with an approximate amount of Rs. 70,000.00. Some unknown persons snatched away the money from him. For fear of losing his job, he did not report about this incident to the authority. He, therefore, tried to return the money from the amount that was given to him by various personnel for remittance back home. Mr. Mahanta, submits that in the facts and circumstances of the case, the penalty of dismissal imposed on the appellant is extremely harsh and disproportionate to the gravity of misconduct. In support of his submissions, learned Senior Counsel has placed reliance on the following decisions: - (i) 1987 (1) GLR 332 , Nirmal Chandra Das Vs. Union of India & Ors. (ii) (2003) 9 SCC 480 , Kailash Nath Gupta Vs. Enquiry Officer, (RK Rai), Allahabad Bank & Ors. (iii) (2004) 6 SCC 440 , Captain Sube Singh & Ors. Vs. Lt. Governor of Delhi & Ors. (iv) (2005) 10 SCC 84 , Damoh Panna Sagar Rural Regional Bank & Anr. Vs. Munna Lal Jain. (v) (2008) 8 SCC 92 , State Bank of India & Ors. Vs. SN Goyal. He therefore prays for setting aside of the order of the learned Single Judge as well as the dismissal order and for his reinstatement in the service of BSF. 10. Opposing the submissions of learned Senior Counsel for the appellant, Mrs. Bora, learned Central Govt. (v) (2008) 8 SCC 92 , State Bank of India & Ors. Vs. SN Goyal. He therefore prays for setting aside of the order of the learned Single Judge as well as the dismissal order and for his reinstatement in the service of BSF. 10. Opposing the submissions of learned Senior Counsel for the appellant, Mrs. Bora, learned Central Govt. Counsel submits that the charge against the appellant was very serious. He was tried by a Summary Court by following the laid down procedure; and considering all aspects of the matter, the Commandant had imposed the punishment of dismissal from service. The punishment so imposed cannot be said to be shocking to judicial conscience or suffering from disproportionality. No case for interference is made, she submits, and, therefore, seeks dismissal of the appeal. 11. We have considered the rival submissions made by the learned counsel for both the sides and we have also perused the relevant materials on record. 12. Question for consideration is whether the learned Single Judge was justified in dismissing the writ petition filed by the appellant challenging his dismissal from the service of BSF? 13. To answer this question, it would be apposite to refer to the relevant portion of the order passed by the learned Single Judge, which reads as under: - “11. In the notice dated 06.09.2006 issued to the petitioner, the date and place of the trial was mentioned and petitioner was informed of assistance of one Sub (Maj) Jarnail Singh in the trial before the SSF Court. But as earlier noted, the accused pleaded guilty and the said plea of the accused was recorded under Rule 142 (2) of the BSF Rules. 12. The accused was given a chance to have his say on the proposed penalty and in his statement, the petitioner admitted to committing a serious mistake because of his greed and domestic compulsion and prayed for leniency by assuring that he will make good the loss suffered by his colleagues. Thereafter the Commandant took note of the service record of the rifleman and upon due consideration, sentenced the accused to dismissal from service, through the impugned order dated 08.09.2006. Thereafter the Commandant took note of the service record of the rifleman and upon due consideration, sentenced the accused to dismissal from service, through the impugned order dated 08.09.2006. The resultant appeal filed by the dismissed constable was rejected by the appellate authority on 06.02.2007 and a subsequent representation filed by the accused on 29.10.2007 was not entertained on the ground that a second petition doesn't lie on the same cause of action. 13. Challenge to disciplinary proceeding can be made only on limited ground and intervention of the writ court will not be justified unless infraction of statutory norms noticed or fair opportunity to the charged person is denied. In the present case, the preliminary hearing was conducted by the Commandant himself and the delinquent was permitted to cross-examine the prosecution witnesses. Although the petitioner contends that he didn't admit his guilt voluntarily, considering the fact that same guilty plea was also entered by the delinquent during the trial in the SSF Court, I find that the recording of the guilty plea is consistent with the stand of the petitioner, who not only admitted that he committed mistake but also prayed for leniency by agreeing to return the misappropriated amount to his colleagues in the battalion. 14. The type of the caution to be administered to a delinquent is not left to the discretion of the disciplinary authority in the BSF organisation, but its precise form is prescribed under Rule 48(3) of the BSF Rules. Here the record shows that the caution was duly administered as is prescribed by the BSF Rules. 15. During the trial before the SSF Court, the charge was intimated and the petitioner was provided with a defence assistant. Therefore, having regard to the fact that he declined to adduce any defence evidence and entered a guilty plea, I hold that the petitioner was provided with a fair opportunity. Moreover the procedure of the trial court is found to be consistent with the statutory provisions applicable for the charged BSF personnel. 16. Under Section 115 of the BSF Act even after verdict is given by the SSF Court, the records are required to be transmitted and a high ranking officer for reasons to be recorded is empowered to quash the SSF Court's proceeding or alter the sentence. 16. Under Section 115 of the BSF Act even after verdict is given by the SSF Court, the records are required to be transmitted and a high ranking officer for reasons to be recorded is empowered to quash the SSF Court's proceeding or alter the sentence. Here SSF Court's proceeding was countersigned by the DIG of the BSF on 01.11.2006 and this shows compliance of the requirement of Section 115 of the BSF Act. Therefore no procedural infirmity is found with the impugned proceeding. 17. The next issue that is required to be decided is whether the punishment was disproportionate to the misconduct. We can't ignore that petitioner was the Dak Runner of the battalion and in this capacity, his colleagues entrusted money to the accused for remittance to their respective families. But he misused the trust of his fellow jawans and appropriated the entrusted money for his own use. Although he tried to return some money, I feel that proportionality of the sentence shouldn't be weighed in light of the subsequent conduct of the delinquent to reimburse the loss of his colleagues. What is relevant is that the petitioner was in a position of trust and by misutilizing his position he misappropriated his colleagues' money. In such circumstances, and having regard to the fact that the petitioner was a member of a disciplined force, I do not see any justification to inflict any lesser punishment for the admitted charge. 18. In view of above, I find no merit in this case and the same is accordingly dismissed without any order on cost.” 14. BSF personnel are governed by the provisions of the BSF Act, 1968 and the BSF Rules, 1969. Section 11 of the BSF Act deals with dismissal, removal or reduction in rank by the Director General and by other officers. As per sub-section (2), an officer not below the rank of Deputy Inspector General or any prescribed officer may dismiss or remove from the service any person under his command other than an officer or a sub-ordinate officer of such rank or ranks as may be prescribed. Section 30 of the BSF Act is concerned with offences in respect of property. Section 30 of the BSF Act is concerned with offences in respect of property. It provides that any person subject to the BSF Act, who commits theft of any property belonging to the Govt., or of any Force mess, band or institution, or to any person subject to the BSF Act or (clause (b) ) dishonestly misappropriates or converts to his own use any such property, shall, on conviction by a Security Force Court be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as mentioned in the BSF Act. Punishments awardable by Security Force Courts are mentioned in section 48 and includes dismissal from service. 15. Section 64 of the BSF Act provides for three kinds of Security Force Courts i.e., General Security Force Courts, Petty Security Force Courts and Summary Security Force Courts (Summary Courts). As per section 70, a Summary Court may be held by the Commandant of any unit of the Force and he alone shall constitute the Court. Under section 115 of the BSF Act, proceedings of every Summary Court shall be forwarded to the officer not below the rank of Deputy Inspector General within whose command the trial was held without delay. Such officer may, for reasons based on merits of the case and not on merely technical grounds, set aside the proceedings or reduce the sentence imposed. 16. Under Rule 43 of the BSF Rules, 1969, where it is alleged that a person subject to the BSF Act, 1968 other than an officer or a subordinate officer has committed an offence punishable therefore, the allegation shall be reduced to writing in the prescribed form. Under Rule 45, the charge shall be heard by the Commandant of the accused and after hearing the charge, the Commandant may remand him for trial by a Summary Court (Rule 45 (2) (iv) ). Rule 48 provides for record of evidence. The officer ordering the record of evidence may either prepare the record of evidence himself or detail another officer to do so. The witnesses shall give their evidence in the presence of the accused, who shall have the right to cross-examine them. Rule 48 provides for record of evidence. The officer ordering the record of evidence may either prepare the record of evidence himself or detail another officer to do so. The witnesses shall give their evidence in the presence of the accused, who shall have the right to cross-examine them. As per sub-rule (3), after all the witnesses against the accused have been examined, the accused shall be given a caution that he may make a statement if he wishes to do so, though he is not bound to make such a statement and if he makes such a statement, the same shall be taken down in writing and may be used in evidence. Thereafter, the statement of the accused, if given, shall be taken down in writing. 17. Under Rule 142, if an accused person pleads guilty, the plea shall be recorded as the finding of the Court, but before it is recorded, the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea and in particular of the meaning of the charge to which he has pleaded guilty. The Court shall also inform the accused of the difference in procedure which may be made by the plea of guilty and shall advise the accused to withdraw that plea if it appears from the record or abstract of evidence or otherwise that the accused ought to plead not guilty. 18. Rule 143 lays down the procedure after the accused pleads guilty. Rule 167 provides that in case of a Summary Court, a person subject to the BSF Act and who has been tried by such a Court shall be allowed to put in one petition to any of the officers mentioned in section 117, which is required to be submitted within three months from the date on which the sentence was promulgated. 19. Having noticed some of the relevant legal provisions, let us now turn to the charge against the appellant as per the offence report. The charge reads as under: “BSF Act 1968, Sec 30 (b) Dishonest Misappropriation of Property belonging to persons Subject to BSF Act In that he, at Battalion HQr Fatikchera while performing duties of Bn DR in the month of Aug 2005 and subsequent dates upto Jan 2006, dishonestly misappropriated about Rs. The charge reads as under: “BSF Act 1968, Sec 30 (b) Dishonest Misappropriation of Property belonging to persons Subject to BSF Act In that he, at Battalion HQr Fatikchera while performing duties of Bn DR in the month of Aug 2005 and subsequent dates upto Jan 2006, dishonestly misappropriated about Rs. 75,000/- (Rupees Seventy five thousand only) belonging to following personnel of this Unit handed over to him for preparation of Bank drafts for family remittance - 1. CT Ravinder Kumar Rs. 10,000/- 2. CT Dharmender Singh Rs. 4,000/- 3. HC Surjeet Singh Rs. 10,000/- 4. HC Fefa Ram Rs. 5,000/- 5. CT C Vinod Kr Rs. 5,000/- 6. CT Bahadur Ram Rs. 2,000/- 7. CT Malikarjun Rs. 5,000/- 8. CT Budh Ram Rs. 2,000/- 9. CT Om Prakash Rs. 10,000/- 10. CT NK Biswas Rs. 2,000/- 11. CT Kh Ruhikanta Singh Rs. 5,000/- 12. CT PK Choudhury Rs. 3,000/- 13. CT G Gopal Rs. 10,000/- 14. DR VS Rajan CMO (SG) Rs. 2,000/- Total Rs. 75,000/- ” 20. In the proceedings before the Summary Court, the record of evidence was read over and explained to the appellant. When a question was put to the appellant as to whether he would like to make a statement, the appellant made the following statement :- “I would like to submit before the Hon'ble Court that I have made a serious mistake and I admit it. Because of my greed and domestic compulsions I started misappropriating money given to me by unit personnel for preparation of bank draft/money orders while I was performing duties of Unit DR, since August, 2005, I performed my DR duties from July, 2005 to 20th Jan 2006, whatever money collected from BSF Personnel for preparation of bank draft for family remittance, I started using it for my own self out of greed. In the month of Aug, 2005 I gave Rs. 15,000/- (Rupees fifteen thousand) only to my brother Gonpati Deka and Rs. 13,000/- (Rupees thirteen thousand) to my brother-in-law Brojen Chaliha, somewhere around Puja (Oct, 2005) out of the money I got from the Unit Personnel. Around Puja time only I purchased one Videocon TV for Rs.11,000/- and a CD player for Rs.2,500/- from Mahanpur, I paid Rs. 7,000/- to the shop-keeper and some more money to them later. I have yet to pay him about Rs.2000/-. Around Puja time only I purchased one Videocon TV for Rs.11,000/- and a CD player for Rs.2,500/- from Mahanpur, I paid Rs. 7,000/- to the shop-keeper and some more money to them later. I have yet to pay him about Rs.2000/-. I also purchased a gold chain from a jeweller in Agartala for Rs.5000/- for my wife. I found this kind of misappropriation very easy since I could easily make a fool of men by giving them some vague answers or at times giving them money receipts prepared by me. Whenever someone from Unit whose money I had already eaten, pressurized me for bank draft or money, I made bank drafts for them from someone elses money. Many a times when I gave bank draft to them, they gave it back to me for sending it to their homes. I used to get the drafts cancelled from the bank under my signature on some pretext or the other since I know the bank staff. The bank staff however did not know my motive. By the time the man came to know about non receipt of draft from their family if questioned, I used to make up their money again from other money. I absented without leave for 63 days w.e.f. 19 April, 2006 to 20th June 2006. In the month of April, 2006 only I had also got prepared a rubber stamp from RMH Chowmohni, Agartala fix this purpose. On this it was written, 'State Bank of India, cash receipt'. I gave one such receipt to HC/ACMC Surjeet Singh of this unit and later threw this bank stamp. I had paid Rs. 150 for preparation of this forge bank stamp. I would never make mistake again and I may excused once.” 21. Thus it was a clear case of admission on the part of the appellant admitting that he had misappropriated money of his fellow BSF personnel for his own personal/family use. This statement also shows that the case sought to be projected by the appellant about snatching away of money from him and, therefore, he tried to make good the snatched amount by retaining the money given to him by his colleagues for remittance to their families is incorrect and an afterthought. This statement also shows that the case sought to be projected by the appellant about snatching away of money from him and, therefore, he tried to make good the snatched amount by retaining the money given to him by his colleagues for remittance to their families is incorrect and an afterthought. Being a member of a disciplined force like the BSF, appellant ought to have reported the matter of snatching away of money from him to the superior authority immediately after the incident, if at all that had happened, but he did not do so. The stand taken by the appellant that he had retained the money given by his colleagues for remittance to their families for the purpose of making good the snatched amount, in the facts and circumstances of the case, particularly the statement of the appellant himself admitting his guilty, cannot be given any credence and was rightly disbelieved by the learned Single Judge. Question of proportionality or otherwise of the punishment imposed would not arise for consideration because retaining such a person in a disciplined force like BSF may adversely affect the discipline in the battalion and might lead to friction amongst the men, which would be wholly undesirable. The statutory petition filed by the appellant was gone into by the Director General, who rejected the same vide order dated 06.02.2007. A perusal of the said order dated 06.02.2007 would indicate that the authority had applied its mind, but for the reasons mentioned had rejected the petition. We also find and concur with the views of the learned Single Judge that there has been substantial compliance of the procedural requirements before imposing the penalty. We have also examined the case laws cited by Mr. Mahanta, learned Senior Counsel for the appellant, but we are afraid in the facts and circumstances of the present case, those decisions are clearly distinguishable. Decision of the learned Single Judge is a reasonable and plausible one and we are not inclined to take a view different from that of the learned Single Judge. 22. In view of the discussions made above, we are of the view that there is no merit in this appeal, which is accordingly dismissed. No costs.