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2019 DIGILAW 154 (JK)

Devendra Singh v. Union of India

2019-03-26

SANJEEV KUMAR

body2019
Judgment 1. The petitioner is aggrieved of the order of dismissal passed by the respondents after conducting Summary Security Force Court trial and seeks a direction to the respondents to permit him to join on the post of Constable GD in 153 Bn c/o 56 APO. It may be noted that the petitioner has not placed on record the copy of the order of dismissal on the ground that the same was never served upon the petitioner. 2. Briefly stated the facts leading to the filing of this petition are as follows:— The petitioner came to be enrolled as Constable GD in BSF on 16.01.1996 and got his permanent posting after completion of his Recruit Basic Training in B-Coy on 28.06.1997. On 14.10.2000, the petitioner, while he was deployed on Border, was detailed to undergo Unit Level Drill Cadre at Coy HQ. “D” Coy location. The petitioner, while on his way to “D” Coy for attending the duty, absented himself without leave and due authority from the Bn. Hqrs. On 14.10.2000, he abandoned his personal weapon 7.62 SLR Butt No.111 along with 03 magazines and 50 rounds in vehicle No.PCR 4405. The petitioner was, thus, found to have committed offence under Sections 19(A) and 40 of BSF Act, 1968 (hereinafter to be referred to as “the Act”). As is revealed from the stand of the respondents, the petitioner was issued several registered letters calling upon him to resume his duty forthwith. The petitioner, however, reported voluntarily on 04.01.2001 afternoon after remaining absent for a period of 83 days. When the petitioner remained absent for a period of 30 days and did not respond to the letters issued, One Man Court of Inquiry seems to have been ordered by the competent authority under Section 62 of the Act. The petitioner was declared as deemed deserter on the basis of the findings of Court of Inquiry and, accordingly, further action under the Act and the Rules framed thereunder was initiated. 3. As noted above, the petitioner admittedly reported back for duties at Bn. Hqrs. on 04.01.2001 after remaining absent for a period of 83 days. He was, accordingly, produced before the competent authority on offence report on two charges:— (i) “Under Section 19(a) of the Act for absenting himself without leave”. (ii) “Under Section 40 of the Act “for an act prejudicial to the good order and discipline of the Force” 4. Hqrs. on 04.01.2001 after remaining absent for a period of 83 days. He was, accordingly, produced before the competent authority on offence report on two charges:— (i) “Under Section 19(a) of the Act for absenting himself without leave”. (ii) “Under Section 40 of the Act “for an act prejudicial to the good order and discipline of the Force” 4. As is claimed, Rule 45 of BSF Rules, 1969 (for short “Rules”) was complied with and the Record of Evidence was ordered against the petitioner on the aforesaid charges. As per the evidence adduced in the Record of Evidence, both the charges were stated to have been established and, accordingly, the case was remanded to trial by the Summary Security Force Court. On 28.04.2001, the petitioner was brought to trial by the Summary Security Force Court which conducted the proceedings in which the petitioner is stated to have pleaded guilty to both the charges. The Summary Security Force Court, after taking note of the plea of guilt and other relevant material, ultimately sentenced the petitioner “to be dismissed from service”. The petitioner was, accordingly, dismissed from the service w.e.f 28.04.2001 afternoon. It is this action of the respondents whereby the petitioner has been dismissed and not permitted to join back as Constable GD the petitioner is aggrieved of. 5. Before proceeding to appreciate the grounds of challenge taken by the petitioner, it would be appropriate to note that the petitioner has not disputed that he remained absent for a period of 83 days, but has explained the circumstances under which he had to leave in an emergency after intimating his superiors. It is the plea of the petitioner that not only he left the station with permission of his immediate superiors, but was also advised to submit the application for leave subsequently in the proper format. Be that as it may, these are the averments made in the petition which have been seriously disputed by the respondents and, therefore, cannot be made subject matter of adjudication in these proceedings. 6. It is submitted by the petitioner that he has not committed any offence either under Section 19(a) of the Act and Section 40 of the Act. He claims to have taken oral permission from the Commandant. 6. It is submitted by the petitioner that he has not committed any offence either under Section 19(a) of the Act and Section 40 of the Act. He claims to have taken oral permission from the Commandant. He also denies having committed any act prejudicial to good order and discipline of the Force which may be punishable under Section 40 of the Act. 7. Elaborating the aforesaid aspect, learned Senior Counsel for the petitioner submits that the act constituting an offence under Section 40 of the Act would mean “an act voluntarily done to the prejudice of good order and discipline”, whereas in the instant case, the petitioner was constrained by the circumstances and, therefore, did nothing out of his sweet will or voluntarily. It is next contended that the petitioner was not given an opportunity of being heard. He was never associated in any proceedings including the proceedings of Summary Security Force Court. Referring to Rule 176 of the Rules, it is urged that a person against whom the Court of Inquiry is conducted, is entitled to copies of such proceedings, so that he could put up an effective defence in the subsequent proceedings taken before the Summary Security Force Court. It is also alleged that, though the petitioner was not permitted to perform his duty, but no formal order of dismissal was ever served upon him. The petitioner also alleges violation of the procedure laid down in Rule 43 and Rule 45 of the Rules. It is urged that as per Rule 43 of the Rules, the allegations are to be reduced in writing, so that the delinquent knows the allegations levelled against him, but, in the instant case, without following the procedure, the respondents directly framed the charge sheet under Rule 53(2) of the Rules. 8. Finally, it is argued that in the process of conducting enquiry against the petitioner, the provisions of Rule 48 and Rule 49 of the Rules were thrown to wind and there was no compliance with Rule 139 and Rule 142(2) of the Rules. In short, the challenge of the petitioner to the impugned action is that the petitioner has been dismissed from the service without following the relevant provisions of the Act and the Rules framed thereunder. 9. In short, the challenge of the petitioner to the impugned action is that the petitioner has been dismissed from the service without following the relevant provisions of the Act and the Rules framed thereunder. 9. Per contra, learned counsel for the respondents, while refuting the allegations of the petitioner, submits that the procedure laid down in the Act and the Rules framed thereunder was scrupulously followed. Not only that the petitioner pleaded guilty of the charges, but the Summary Security Force Court also recorded the evidence and took into consideration the other relevant material. The order of dismissal of the petitioner was, however, the cumulative result of plea of guilt of the petitioner recorded and other material that came on record during the proceedings of Summary Security Force Court. The allegation of the petitioner that he was not allowed to participate in the proceedings is vehemently contested by the respondents. 10. Learned counsel for the respondents contends that not only a fair and adequate opportunity to defend was given to the petitioner, but he was allowed to cross-examine the witnesses produced in support of the charge. He was also afforded an opportunity to lead defence evidence. In short, learned ASGI submits that the procedure was scrupulously followed and the petitioner was awarded the sentence after carefully examining the record and the evidence both oral and documentary. It is, thus, submitted that having regard to the conduct of the petitioner, adequate sentence was imposed by the competent authority which does not call for any interference. 11. Having heard learned counsel for the parties and perused the record, I am of the view that there is no serious infraction of any rule or procedure followed by the respondents which has culminated into dismissal of the petitioner from the service. The petitioner was an employee of the Boarder Security Force which is one of the premier security agency of the Country. Like any other military or paramilitary force, the discipline is at the core of its management. Any attempt by any member of the Force to create indiscipline and disorder is required to be viewed seriously and dealt with sternly. It is true that while dealing with such in disciplined member of the Force, the individual rights of the delinquent which are equally important are to be adequately guarded. Any attempt by any member of the Force to create indiscipline and disorder is required to be viewed seriously and dealt with sternly. It is true that while dealing with such in disciplined member of the Force, the individual rights of the delinquent which are equally important are to be adequately guarded. With a view to safeguard such individual rights of the member of the Force and to guard against arbitrary and discriminatory exercise of power by those at the helm of affairs in the Force, an elaborate procedure has been laid down in the Act and the Rules framed thereunder. With a view to deal with the contentions of learned counsel for the petitioner, it would be appropriate to first noticed few provisions of the Act and the Rules which are relevant in the context of controversy raised in this writ petition. “Section 62. Inquiry into absence without leave: (1) When any person subject to this Act has been absent from duty without due authority for a period of thirty days, a court of inquiry shall, as soon as practicable, be appointed by such authority and in such manner as may be prescribed; and such court shall, on oath or affirmation administered in the prescribed manner, inquire respecting the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or necessaries; and if satisfied of the fact of such absence without due authority or other sufficient cause, the court shall declare such absence and the period thereof and the said deficiency, if any, and the Commandant of the unit to which the person belongs shall make a record thereof in the prescribed manner. (2) If the person declared absent does not afterwards surrender or is not apprehended, he shall for the purposes of this Act, be deemed to be a deserter”. Rule 48. Record of evidence: (1) The officer ordering the record of evidence may either prepare the record of evidence himself or detail another officer to do so. (2) The witnesses shall give their evidence in the presence of the accused and the accused shall have right to cross-examine all witnesses who give evidence against him. Rule 48. Record of evidence: (1) The officer ordering the record of evidence may either prepare the record of evidence himself or detail another officer to do so. (2) The witnesses shall give their evidence in the presence of the accused and the accused shall have right to cross-examine all witnesses who give evidence against him. Provided that where statement of any witness at a court of inquiry is available, examination of such a witness may be dispensed with the original copy of the said statement may be taken on record. A copy thereof shall be given to the accused and he shall have the right to cross-examine if he was not afforded an opportunity to cross examine the witness at the court of Inquiry. (3) After all the witnesses against the accused have been examined, he shall be cautioned in the following terms: “You may make a statement if you wish to do so, you are not bound to make one and whatever you state shall be taken down in writing and may be used in evidence.” After having been cautioned in the aforesaid manner whatever the accused states shall be taken down in writing. (4) The accused may call witnesses in defence and the officer recording the evidence may ask any question that may be necessary to clarify the evidence given by such witnesses. (5) All witnesses shall give evidence on oath or affirmation: Provided that, no oath or affirmation shall be given to the accused nor shall be cross-examined. (6) (a) The statements given by witnesses shall ordinarily be recorded in narrative form and the officer recording the evidence may, at the request of the accused, permit any portion of the evidence to be recorded in the form of question and answer. (b) The witnesses shall sign their statements after the same have been read over and explained to them. 3[(6A) The provisions of section 89 of the Act shall apply for procuring the attendance of witnesses before the officer preparing the Record of Evidence. (7) Where a witness cannot be compelled to attend or is not available or his attendance cannot be procured without an undue expenditure of time or money and after the officer recording the evidence has given a certificate in this behalf, a written statement signed by such witness may be read to the accused and included in the record of evidence. (8) After the recording of evidence is completed the officer recording the evidence shall give a certificate in the following form: “Certified that the record of evidence ordered by..................... ......................Commandant ..........................was made in the presence and hearing of the accused and the provisions of rule 48 have been complied with.” Rule 49. Abstract of evidence: (1) An abstract of evidence shall be prepared either by the ordering it or an officer detailed by him. (2) (a) The abstract of evidence, shall include: (i) signed statements of witnesses wherever available or a precise thereof, or (ii) copies of all documents intended to be produced at the trial. (b) Where signed statements of any witnesses are not available a precise of their evidence shall be included. (3) A copy of the abstract of evidence shall be given by the officer making the same to the accused and the accused shall be given an opportunity to make a statement if he so desires after he has been cautioned in the manner laid down in sub-rule (3) of rule 48: Provided that the accused shall be given such time as may be reasonable in the circumstances but in no case less than twenty four hours after receiving the abstract of evidence to make his statement”. 12. From the reading of Section 62, it clearly transpires that when any person subject to this Act remains absent without due authority for a period of 30 days, a Court of Inquiry is to be appointed by the competent authority and if, on enquiry, to be conducted in terms of Section 62, the Court of Inquiry is satisfied that the absence of such person is without any due authority or other sufficient cause, it shall declare such absence and the period thereof and the Commandant of the Unit to which the person belongs will make a record thereof in the prescribed manner. If the person declared absent does not afterwards surrender or is not apprehended, he shall, for the purposes of this Act, be deemed to be a deserter. 13. From the perusal of record, it clearly reveals that the Court of Inquiry was ordered which ultimately declared the absence of the petitioner as one without any authority or sufficient case. The petitioner was intimated by the Commandant of the Unit by issuing several letters to him to join back. 13. From the perusal of record, it clearly reveals that the Court of Inquiry was ordered which ultimately declared the absence of the petitioner as one without any authority or sufficient case. The petitioner was intimated by the Commandant of the Unit by issuing several letters to him to join back. It was on his failure to report back, he was deemed to be deserter and a decision was taken to subject him to trial before the Summary Security Force Court. It is further borne out from the record that on the petitioner reporting at Bn. Hqrs on 04.01.2001 after remaining absent for a period of 83 days, he was produced before the competent authority on offence report on two charges noted herein before. This was in compliance to the Rule 43 of the Rules. The procedure laid down in Rule 45 was followed by the respondents. The charge and the statement of witnesses recorded was read over to the petitioner and he was given an opportunity to cross examine the witnesses and also to make a statement in his defence. As per the evidence recorded in terms of Rule 45 of the Rules, it was concluded by the Commandant that the offence under Section 19(A) and under Section 40 of the Act were established and, accordingly, on 28.04.2001, the petitioner was brought to trial by the Summary Security Force Court at Bn. Hqrs. 153 Bn. Samba. 14. I have perused the original record. I could not find any serious infraction of the procedure laid down either in Rule 48 of the Rules or any of the Rules contained in Chapter XI of the Rules. 15. The plea of learned counsel for the petitioner that the petitioner was entitled to minimum of 24 hours’ time to make statement in response to the abstract of evidence after he had been cautioned in the manner laid down in Rule 48(3) of the Rules is without any substance. Admittedly, in the instant case, the respondents remanded the petitioner for preparing the record of Evidence which is governed by Rule 48 of the Rules and not Rule 49 of the Rules which pertains to “abstract of evidence”. Admittedly, in the instant case, the respondents remanded the petitioner for preparing the record of Evidence which is governed by Rule 48 of the Rules and not Rule 49 of the Rules which pertains to “abstract of evidence”. It is only in the case the respondents resort to preparation of abstract of evidence against the delinquent, the delinquent is to be provided an opportunity of no less than 24 hours after receiving the abstract of evidence to make his statement. However, no such stipulation is contained in Rule 48 of the Rules which deals with the Record of Evidence. The only requirement of Rule 48 (3) of the Rules is to administer a caution on the delinquent in the manner prescribed. The delinquent is given an opportunity to make a statement. 16. Learned counsel for the petitioner has mistook “abstract of evidence” in terms of Rule 49 of the Act for “Record of Evidence” in terms of Rule 48 of the Rules and has, therefore, raised an argument in despair which is misconceived and not supported by the Rules. Learned counsel for the petitioner also tried to point out some inconsequential procedural irregularity in conducting the trial, which, in my considered opinion, do not, in any manner, vitiate the proceedings. The procedure is handmaid and not a master of the justice. The procedural irregularity or infirmity which does not cause any prejudice to the delinquent cannot vitiate the ultimate decision. It is not convincingly refuted by the petitioner that he was absent from duties for a period of 83 days. It is writ large in the record that he never applied for any leave before leaving the station or in the aftermath. He even did not think it proper to respond to the notices issued by the Commandant for assumption of duty. After remaining absent for 83 days, he reported to the Unit where he was tried as per the procedure laid down in the Act and the Rules framed thereunder. He could not put up any defence to justify his absence. Cock and bull story projected by him before the authorities was not supported by any material. He voluntarily participated in the proceedings and never objected to the manner in which the proceedings were conducted. He was given adequate opportunity to cross-examine the witnesses and make statement in his defence. He could not put up any defence to justify his absence. Cock and bull story projected by him before the authorities was not supported by any material. He voluntarily participated in the proceedings and never objected to the manner in which the proceedings were conducted. He was given adequate opportunity to cross-examine the witnesses and make statement in his defence. He was also provided an opportunity to lead evidence which he chose not to do. In these circumstances, when the petitioner has been found guilty of remaining unauthorised absence in terms of Section 19(a) of the Act and acting in a manner prejudicial to the good order and discipline of the Force under section 40 of the Act, the respondents had been left with no option, but to dismiss him from service. This was necessary not only to prevent continuation of such in disciplined member in the Force, but also to serve as deterrence to those in service and having propensity for such act. 17. That apart, the jurisdiction of this Court under Article 226 of the Constitution of India to re-appreciate the findings of fact is extremely limited and the same can only be invoked if such findings recorded by the Summary Security Force Court under the Act are totally perverse, without any evidence and opposed to logic and common sense. Such is not the case in hand. The law laid down by the Hon’ble Supreme Court in the case Union of India And Others vs. Ex-Constable Amrik Singh, AIR 1991 SC 564 fortifies the view I have taken in this petition. The judgments relied upon by the petitioner have been rendered in the special facts and circumstances of each case and, therefore, are distinguishable. 18. For the foregoing reasons, I find no merit in this writ petition. The same is, therefore, dismissed. Records be returned back.