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2017 DIGILAW 68 (JHR)

Abhilasha, W/o late Hari Singh v. Union of India

2017-01-10

PRAMATH PATNAIK

body2017
JUDGMENT : Pramath Patnaik, J. In the accompanied writ application, the petitioner (now deceased) has inter alia prayed for quashing impugned order dated 24.08.2005, whereby the husband of the petitioner no. 1 has been dismissed from services and further to quash impugned order of review dated 07.11.2005 and communicated to the petitioner vide order dated 21.11.2005, whereby the punishment of dismissal from services has been reviewed as to forfeiture of five years of service for the purpose of promotion and forfeiture of five years of service for the purpose of pension. 2. The facts, as delineated in the writ application, in brief, is that the husband of petitioner no. 1 while working as Assistant Sub-Inspector (Clerk), a proceeding in terms of 20(a) of the Border Security Force Act. 1968 (hereinafter referred to as “the Act” for the sake of brevity) was initiated against the petitioner on the basis of complaint made by one Sri Navin Chandra, Head Clerk, that while he was handing over the file to husband of petitioner no. 1, he was abused and assaulted by him, which led to passing of impugned order of dismissal from services. Though, the aforesaid order was reviewed and vide order dated 07.11.2005 and the punishment of dismissal from services commuted to forfeiture of five years of service for the purpose of promotion and to forfeiture of five years of service for the purpose of pension. Being aggrieved, the deceased-employee preferred this writ application for redressal of his grievances. It is pertinent to note here that during pendency of the writ application, the petitioner Hari Singh died on 12.06.2015, which fact was brought on record by filing I.A. No. 3639 of 2016 and in place of deceased-employee, his legal heirs were substituted. 3. Learned counsel for the petitioners submitted that when the departmental proceeding was set in motion, statement of the complainant was taken, in which, during cross-examination, the complainant has nowhere stated that the petitioner has ever assaulted rather he stated that hot talk had taken place. 3. Learned counsel for the petitioners submitted that when the departmental proceeding was set in motion, statement of the complainant was taken, in which, during cross-examination, the complainant has nowhere stated that the petitioner has ever assaulted rather he stated that hot talk had taken place. It has further been submitted that vide letter dated 22.08.2005, a proceeding under Rule 63 (4) (6) of the Border Security Force Rules, 1969 (hereinafter referred to as “the Rule” for the sake of brevity) was initiated, which culminated in passing of impugned order of dismissal dated 24.08.2005, without giving any proper opportunity to the petitioner in violation of Rule 20 and 22 of the Act and within two days everything was done, which shows that the respondents were pre-determined to dismiss the petitioner. It has further been submitted that respondent no. 4-Commandant has got no jurisdiction to pass the impugned order dated 24.08.2005 without approval from the competent authority. Being aggrieved, the delinquent employee preferred a petition on 25.08.2005 for review of the impugned order of dismissal, which was disposed of vide review order dated 07.11.2005. It has been submitted that though the reviewing authority has considered that the order of dismissal to be illegal and beyond the record but instead of quashing the order of punishment, commuted to forfeiture of five years of service for the purpose of promotion and forfeiture of five years of service for the purpose of pension, which is too harsh and against the Rules. 4. Controverting the averments made in the writ application, learned counsel for the respondents submitted that eight prosecution witnesses were examined in presence of the petitioner and petitioner was given chance to cross-examine them and he was even afforded sufficient opportunity to make any statement or produce any witness, which he declined. It has further been submitted that the petitioner pleaded guilty, hence, it was decided to try him by a Summary Security Force Court (hereinafter referred to as “SSFC” for the sake of brevity) and looking to the gravity of charge order of dismissal was passed, however, on a mercy petition filed by the petitioner, sentence was commuted to forfeiture of five years of service for the purpose of promotion and forfeiture of five years of service for the purpose of pension. It has further been submitted before exhausting the alternate remedy to present a petition before Director General or any prescribed superior officer of the Central Government, the petitioner has directly approached this Court. 5. In reply, referring to supplementary affidavit dated 09.10.2006, learned counsel for the petitioner submitted that the petitioner has never pleaded guilty and there was no occasion for him to plead guilty as he even cross-examined the witnesses. He further referring to “Form of Proceeding for Summary Security Force Court’ submitted that the piece of evidence on which the respondents are relying upon does not bear the signature of petitioner, which itself shows that mala fide intention of the respondents. 6. Referring to Rule 142 (2), learned counsel for the respondents submitted that prior to 2011, it was not required to obtain signature of the accused on the paper where he pleaded guilty and in the case at hand, the proceeding is of 2005, hence, the argument advanced by learned counsel for the petitioner to this effect has no leg to stand, as the proceeding was done in accordance with the B.S.F. Rules and Act. 7. Before delving into the factual aspect of the matter, at this juncture, it would be apposite to refer the relevant provision 142 (2) of the Rules, which is quoted herein below: 142.General Plea of “Guilty” or “Not Guilty”—(1) XXX XXX XXX (2) If an accused person pleads “Guilty”, that plea shall be recorded as 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 will be made by the plea of guilty and shall advise him to withdraw that plea if it appears from the record or abstract of evidence (if any) or otherwise that the accused ought to plead not guilty. (3) XXX XXX XXX Provided that after recording plea of guilty, signature of the accused and friend of the accused shall be obtained. 8. It is pertinent to note here that proviso to 142(2) of Rules was inserted vide amendment dated 25.11.2011. (3) XXX XXX XXX Provided that after recording plea of guilty, signature of the accused and friend of the accused shall be obtained. 8. It is pertinent to note here that proviso to 142(2) of Rules was inserted vide amendment dated 25.11.2011. Further, from perusal of Circular No. 01/07/CLO/BSF/4517-4867 dated 10.10.2011, it appears that the respondents have taken note of the fact that “… … in a number of Writ Petitions filed by the BSF personnel, who were tried and convicted by SSFC, it was alleged that they never pleaded ‘Guilty’ to the charges and that the plea of ‘Guilty’ was recorded by the Court on its own. Some of the Courts have even directed that whenever an accused pleads ‘Guilty’ to the charge, his signatures should be obtained after the minutes as per Rule 142 (2) have been recorded.” The view of this Court is on the same line, if the delinquent raises serious objection that plea of guilty was recorded by respondent-SSFC on its own and substantiated his argument that otherwise there was no occasion for him to cross-examine the witnesses; non-endorsement/signature on the same, in such a situation, makes out a case for interference by this Court. 9. On the merit of the case, learned counsel for the petitioner has tried to impress upon this Court that witnesses were not consistent in their statement so far as use of criminal force or assault on his superior officer attracting Section 20 (a) of the Act. On perusal of the deposition of witnesses this Court finds that witnesses were not consistent in their statement regarding assault. 10. After bestowing my anxious consideration to submissions advanced by learned counsel for the parties and on close scrutiny of the materials available on record, the impugned order of dismissal dated 24.08.2005 as also impugned order of review dated 07.11.2005 and communicated to the petitioner vide order dated 21.11.2005, whereby the punishment of dismissal from services has been reviewed as to forfeiture of five years of service for the purpose of promotion and forfeiture of five years of service for the purpose of pension is hereby quashed and set aside and accordingly the petitioner be extended all consequential benefits. 11. With the aforesaid observations and directions, the writ petition stands allowed.