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2015 DIGILAW 765 (CAL)

Union of India v. Lakhan Singh

2015-09-11

ASHA ARORA, NISHITA MHATRE

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JUDGMENT : Nishita Mhatre, J. 1. The respondent, Lakhan Singh, was employed as a Constable with the Boarder Security Force on 8th April, 1988. He was posted at the headquarters at Siliguri as Border Mobile Patrol driver since 27th December, 1995. The allegation against him is that on 7th April, 1996, after consuming country liquor, he visited the house of Biru Rani Ray, in village Daikhata. He quarrelled with one Subal Chandra Ray, a worker in the rice mill owned by Biru Rani Ray, who he suspected was a Bangladeshi national. The respondent then left and returned to the BOP Daikhata, picked up his SLR along with a magazine of another Constable filled with 15 rounds and went to the house of Biru Rani Ray. After crossing the fence he fired two rounds from his SLR in the air to scare Subal Chandra Ray. The latter ran away to save himself, but Lakhan Singh fired at him again and one of the bullets pierced the left thigh of Subal Chandra Ray. P.R. Anand, Company Commander, lodged the first information report with the SHO Police Station, Jalpaiguri on 8th April, 1996 mentioning that the respondent was attacked by a Bangladeshi infiltrator, Subal Chandra Ray, who was injured in his left thigh by a bullet fired by the respondent in self-defence. Kotwali Police Station Case No. 131 of 1996 was initiated under sections 353/307 IPC against Subal. He was immediately removed to the hospital at Jalpaiguri by the Company commander. 2. An FIR was also lodged by Biru Rani Ray with respect to this incident. Lakhan Singh was arrested by the Battalion Commandant and thereafter he was suspended from service on 16th April, 1996. The criminal case registered against him under Sections 447, 326, 307 and 506 of the IPC was transferred under Section 80 of the Border Security Force Act, 1968 for trial by the Security Force Court. The enquiry was held and the suspension order was revoked on 26th July, 1996. Lakhan Singh was tried summarily on the same day by the Commandant, 108 Battalion, Border Security Force and was awarded 28 days of rigorous imprisonment in force custody for committing following offences: (a) under Section 16(d) (leaving his post without order from his superior) (b) under Section 22(e) (neglecting to obey orders i.e. consuming liquor while on border duties in contravention to Memo dated 21st October, 1995) 3. Lakhan Singh was dismissed from service by an order dated 7th June 1997 on being found guilty at the enquiry. His appeal was dismissed by the appellate authority. Being aggrieved by the decisions, Lakhan Singh filed a writ petition before this Court. The learned single Judge in the impugned order held that the appellants had not examined the Company Commander P.R. Anand who was the first informant at the enquiry. The learned single Judge was of the view that failure to examine P.R. Anand, the Company Commander, was a serious flaw and therefore set aside the order of punishment dated 7th June, 1997. The learned single Judge reconstituted and reopened the proceedings by observing that Anand should be examined as a witness and that the enquiry would be completed only after the testimony of Anand was recorded. The parties have been given liberty to make such submissions as are necessary thereafter. The learned single Judge directed that the entire exercise should be completed within three months from the date of communication of the order. The Court also held that the sentence which had been set aside could not be enhanced. It was further directed that Lakhan Singh should not be reinstated till fresh order was passed on the basis of the testimony of Anand and other witnesses. 4. The BSF and its officers have filed the present appeal. Mr. Pratik Dhar, the learned Counsel appearing for the appellants, submitted that the learned single Judge has transgressed the boundaries of judicial review which can be exercised by the High Court in its writ jurisdiction. He submitted that the learned Judge had erred in directing that Mr. Anand, the Company Commander, should be examined before a fresh order was passed. According to Mr. Dhar, even without testimony of Mr. Anand there was sufficient material on record to indict Lakhan Singh despite which the learned single Judge had unnecessarily reopened the entire matter. He pointed out that the FIR was lodged by P. K. Anand, Deputy Commandant, and not P.R. Anand. According to him, it was wrongly recorded that the FIR had been lodged by one P.R. Anand. Mr. Dhar submitted that the learned single Judge had re-appreciated the evidence on record in the summary Security Force Court trial proceedings which was contrary to the well-settled principles of law. 5. Mr. According to him, it was wrongly recorded that the FIR had been lodged by one P.R. Anand. Mr. Dhar submitted that the learned single Judge had re-appreciated the evidence on record in the summary Security Force Court trial proceedings which was contrary to the well-settled principles of law. 5. Mr. Sabyasachi Chaudhury, the learned Counsel appearing for Lakhan Singh, supported the judgment of the learned single Judge and submitted that the appeal should be dismissed as it was without substance. 6. It is now well-settled by a catena of judgments of the Supreme Courts that the High Court while exercising power of judicial review cannot normally substitute its own conclusion for that of the Disciplinary Authority. The Court or Tribunal may interfere where the authority has held proceedings against the delinquent officer in a manner which was inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the manner in which the enquiry is to be held. The interference is called for when the conclusion or finding reached by the disciplinary authority is based on no evidence or is such that no reasonable person would have ever reached the conclusion. The relief to be granted in such a case can always be moulded by the Court so that it is commensurate with the misconduct which is proved against the delinquent employee. Even while exercising the High Court’s writ jurisdiction under Article 226 of the Constitution of India, it is open for the Writ Court to judicially review an administrative order or quasi-judicial order. The object of such judicial review is to ensure that there is no miscarriage of justice. The purpose is to see that justice is done and the conclusions drawn by the disciplinary authority are based on fair play and are not arbitrary, whimsical or capricious. Bearing in mind these well-settled principles it is necessary to examine the impugned judgment. 7. As mentioned earlier the learned single Judge was of the view that the order dated 7th June, 1997 dismissing the respondent from service was not justified without the evidence of P.R. Anand, Company Commander, as the first information report was lodged by him with the SHO Police Station, Jalpaiguri on 8th April, 1996. 7. As mentioned earlier the learned single Judge was of the view that the order dated 7th June, 1997 dismissing the respondent from service was not justified without the evidence of P.R. Anand, Company Commander, as the first information report was lodged by him with the SHO Police Station, Jalpaiguri on 8th April, 1996. This FIR mentioned that the respondent was attacked by a Bangladeshi infiltrator, Subal Chandra Ray, who was injured in his left thigh by a bullet fired by the respondent in self-defence. Another first information report was lodged with the same police station about 12 hours later accusing the respondent for having caused grievous hurt and attempt to murder. The learned single Judge has recorded that the first FIR was abandoned and the subsequent accusation which was against the respondent was proceeded with by the BSF. The respondent was found guilty and he was dismissed from service by an order dated 7th June, 1997. Prior to that, on 26th July, 1996, the respondent was ordered to be imprisoned for 28 days in force custody by the Commandant on the charge of consuming liquor while on duty on 7th June, 1996. The learned Judge noted that the appellant had relied on the report filed by one P.K. Anand who was the same person as the one who had lodged the first FIR. In this report P.K. Anand had stated that the respondent was guilty of committing offence of causing grievous hurt and attempt to murder. The learned single Judge accepted the contention on behalf of the respondent that in order to ascertain whether the first information report lodged by P.R. Anand was to be accepted or the report submitted by P. K. Anand accusing him of causing grievous injury and attempt to murder were to be accepted and therefore, Anand ought to have been examined as a witness in the enquiry. The learned single Judge was of the opinion that the controversy as to whether P. K. Anand was the same person as P.R. Anand could have been settled if the person had been examined during the enquiry. It is in these circumstances that the order of punishment was set aside. The learned Judge directed that the proceedings would be reconstituted and the appellants could call Anand as a witness. It is in these circumstances that the order of punishment was set aside. The learned Judge directed that the proceedings would be reconstituted and the appellants could call Anand as a witness. It was further directed that the enquiry should conclude after examining Anand and a fresh order should be passed considering the testimony of Anand and all other existing material on record. The learned single Judge further directed that the respondent should not be reinstated in service and that his fate would depend on the result of the fresh order passed as directed by the Court. While doing so, the learned Judge imposed a time limit of three months within which the entire process was to be completed. 8. In our opinion, the learned single Judge has exercised the jurisdiction which is vested in him under Article 226 of the Constitution of India. The order under review was a quasi-judicial order and it is well-settled that the High Court exercising its power under Article 226 of the Constitution of India can review a quasi-judicial order passed by a Tribunal or other authority. While exercising the power of judicial review the High Court is expected to interfere when there is a breach of the principle of audi alteram partem or when the order passed by the quasi-judicial authority is perverse or is based on no evidence at all. The learned single Judge has not assessed the quality and quantity of evidence before the enquiry but concluded that the non-examination of Anand was perverse and prejudicial to the interest of the respondent. 9. We find that the learned single Judge has exercised the jurisdiction vested in him under Article 226 of the Constitution of India appropriate and therefore the impugned order warrants no interference. The learned single Judge has not substituted his own decision for that of the employer but has given liberty to the appellants to examine Anand and to take a fresh decision in the matter after considering the testimony of Anand and the other material already on record. The testimony would throw light on the allegations contained in the FIR registered by the Company Commander that the respondent had shot Subal Chandra Ray, in self-defence. These directions, in our view, cannot be deemed as an exercise in excess of the jurisdiction vested under Article 226 of the Constitution of India. 10. The testimony would throw light on the allegations contained in the FIR registered by the Company Commander that the respondent had shot Subal Chandra Ray, in self-defence. These directions, in our view, cannot be deemed as an exercise in excess of the jurisdiction vested under Article 226 of the Constitution of India. 10. In our view, therefore, the order of the learned single Judge requires no interference. The appeal is dismissed. As the time limit imposed by the learned single Judge in his order dated 7th August, 2013 was to complete the exercise within three months of the date of the order, we direct the appellants to comply with the directions issued by the learned single Judge within three months from today. 11. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.