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2023 DIGILAW 220 (JK)

Krishan Chand v. Union of India

2023-06-01

SANJEEV KUMAR

body2023
JUDGEMENT 1. IN this petition, the petitioner has called in question Order No. Estt/62/BSF/2000/SSFC/4453-54, dated 27.05.2000, ['the impugned order'] issued by the Commandant 62nd Bn. BSF he has been awarded the punishment of "reduction of rank" from the rank of Head Constable to Constable. The petitioner is also aggrieved of order of the respondents whereby the period of absence from duty i.e. 157 days has been treated as 'Dies Non'. 2 Briefly stated, the facts, relevant for disposal of this petition are that the petitioner was enrolled as Constable (GD) in BSF on 01.01.1981 and after completing his basic recruit training, he was posted to 13 Bn BSF. On 01.04.1988, the petitioner was posted to 62nd Bn. BSF. On his request, the petitioner was sanctioned 15 days casual leave w.e.f. 12.08.1999 to 31.08.1999. Later, the casual leave sanctioned in favour of the petitioner was cancelled by the Competent Authority and, instead, he was granted 60 days earned leave w.e.f. 10.08.1999 to 10.10.1999. The petitioner was required to report at Transit Camp, Jammu on 10.10.1999 to resume his duties in the Battalion deployed in Kupwara, J&K. The petitioner, however, failed to report for duty on due date. The Unit of the petitioner sent him a letter on his home address directing him to resume his duties. Instead of joining back, the petitioner sent about 07 letters, five in the month of October, 1999 and two in the month of December, 1999 requesting for extension of leave on the ground that his wife was not well. The request of the petitioner was considered by the Competent Authority and was rejected. For the act of the petitioner overstaying the leave without any sufficient cause, Court of Enquiry was ordered. On completion of Court of Enquiry and as per the remarks of the Commandant, an apprehension roll was sent to Superintedent of Police Jammu to apprehend the petitioner vide Office Letter No. Estt/62/99/2062/BSF13018, dated 21.09.1999. The petitioner was also served with a show cause notice. 3. On 16.03.2000, the petitioner, on his own, reported at Transit camp, Camp, Jammu after overstaying leave for 157 days. After the petitioner resumed his duty at Battalion Headquarter, Kupwara, he was heard on offence report under section 19(b) of the BSF Act, 1968 ['the Act'] on 31.03.2000 by the Commandant. 3. On 16.03.2000, the petitioner, on his own, reported at Transit camp, Camp, Jammu after overstaying leave for 157 days. After the petitioner resumed his duty at Battalion Headquarter, Kupwara, he was heard on offence report under section 19(b) of the BSF Act, 1968 ['the Act'] on 31.03.2000 by the Commandant. The record of evidence was ordered, on the basis whereof, the Commandant ordered that the petitioner be tried by the Summary Security Force Court ['SSFC']. Accordingly, the convening order was issued on 25.05.2000 by the Commandant of 62nd Bn BSF for conducting trial of the petitioner under section 19(b) of the Act. After the trial was conducted in which the petitioner pleaded guilty of charge, punishment "to be reduced to the rank of constable" was awarded and the same was promulgated to the petitioner on 25.05.2000. It is this order of promulgation of sentence/punishment which is assailed by the petitioner in this petition. 4. The petitioner has pleaded multiple grounds to challenge the impugned order, but, the grounds of challenge, that were pressed during the course of arguments by learned Senior Counsel appearing for the petitioner, may be summarised hereunder: (i) That the entire proceedings, right from the preparation of offence report till the petitioner was held guilty of the charge, have been conducted contrary to the provisions of the Act, and the Rules framed thereunder; (ii) That the petitioner was not provided adequate opportunity of being heard during the entire proceedings, nor was his choice to have a next friend to defend him during the trial before SSFC acceded to and Mr. S.N. Goswami, Assistant Commandant 62nd Bn BSF was imposed upon the petitioner as friend without his consent; (iii) That the plea of guilty on the basis of which the petitioner has been awarded punishment of 'reduction in rank' has not been recorded in accordance with law. As a matter of fact, the petitioner had not pleaded guilty, but, the Commandant, with a view to cut short the trial, deliberately recorded the plea of guilty; and (iv) That the plea of guilty recorded by the SSFC does not bear signatures of the petitioner, nor such alleged plea of guilty made by the petitioner is witnessed by any independent person. Even the friend of the petitioner provided by the respondents has not put his signatures on the aforesaid plea of guilty. 5. Even the friend of the petitioner provided by the respondents has not put his signatures on the aforesaid plea of guilty. 5. On being put on notice, the respondents have filed their objections and have taken a clear stand that trial of the petitioner was conducted by the SSFC strictly as per the provisions of the Act and the Rules framed thereunder. It is submitted that, not only the petitioner was provided fair opportunity to defend his case, but an officer of the rank of Assistant Commandant was also appointed as the friend of the petitioner to defend him during the trial. It is submitted that, although, in the record of evidence, there was enough evidence on record to show that the petitioner had no cogent and plausible explanation to offer for his absence of 157 days, yet, the petitioner was put on trial before SSFC where he voluntarily pleaded guilty of the charge and was, accordingly, imposed a penalty of 'reduction in rank'. 6. Heard learned counsel for the parties and perused the material on record. 7. The only question that arises for consideration in this petition is whether the plea of guilty of the petitioner recorded by the SSFC is in consonance with and conforms to the provisions of Rule 142 of BSF Rules, 1969 as these rules existed at the time when the plea of guilty of the petitioner was recorded. 8. Somewhat similar matter had come up for consideration before this Court in the case of [1]Sunil Kumar v. Union of India (LPA No. 13/2020, decided on 16.03.2023 wherein this Court, while dealing with the issue, has held thus: "20. From a reading of Rule 142 of the Rules, it is abundantly clear that the procedure that is required to be followed and the manner in which the "plea of guilty" or "not guilty" is to be recorded is mandatory in nature lest in the event of breach the trial would be vitiated on account of violation of principles of natural justice. The Rule lays down following steps to be followed:- (i) Plea of "guilty" or "not guilty" shall be recorded on each charge. If the accused refuses to plead or does not plead intelligibly "guilty" or "not guilty", a plea of "not guilty" shall be recorded on each charge. The Rule lays down following steps to be followed:- (i) Plea of "guilty" or "not guilty" shall be recorded on each charge. If the accused refuses to plead or does not plead intelligibly "guilty" or "not guilty", a plea of "not guilty" shall be recorded on each charge. (ii) If an accused person pleads "Guilty" the plea shall be recorded by the Court as the finding of the Court. (iii) Before recording such plea of "guilty" the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty. (iv) The accused shall also be informed by the Court of the general effects of making plea of "guilty". He should be made aware of the meaning of the charge to which he has pleaded "guilty" and of the difference in procedure which will be followed consequent upon such plea. (v) The Court shall also advise the accused making plea of "guilty" to withdraw such plea where the Court is of the opinion based upon the record or abstract of evidence, if any, or otherwise that the accused ought to plead not guilty. (vi) That after recording plea of "guilty", signatures of the accused and the friend of the accused shall be obtained. (This was, however, added by way of an amendment made in Rule 142 of the Rules by S.O. 2628(E) dated 25.11.2011.) 21. In light of the procedure provided in Rule 142 of the Rules, when we examine the original record produced by Mr. Vishal Sharma, learned DSGI, we find that the “plea of guilty" recorded by the SSFC is not in consonance with law and has occasioned serious miscarriage of justice. The writ petitioner has been inflicted a major penalty of "dismissal from service" without holding proper trial. The writ petitioner, as is evident from the original record, appears to have appeared before the Court along with his friend appointed by the respondents, namely, Sh. D.S. Samyal, Deputy Commandant. The charge-sheet was read over and explained to the writ petitioner and he was put four questions. Question No. 1 was in respect of Charge No. 1 to which the writ petitioner answered "guilty". Similarly, to the Question No. 2, which was in respect of a Charge No. 2, the writ petitioner answered "guilty". D.S. Samyal, Deputy Commandant. The charge-sheet was read over and explained to the writ petitioner and he was put four questions. Question No. 1 was in respect of Charge No. 1 to which the writ petitioner answered "guilty". Similarly, to the Question No. 2, which was in respect of a Charge No. 2, the writ petitioner answered "guilty". It seems that without first explaining the writ petitioner the meaning of the charges to which he allegedly pleaded guilty and without making him aware of the general effects of that plea and difference in the procedure that will be followed consequent upon such plea, the Court recorded in proceedings the "plea of guilty" allegedly made by the writ petitioner. Neither the writ petitioner nor his friend appointed by the respondents has acknowledged the plea and put their signatures in lieu thereof. 22. It is true that as per Rule 142 of the Rules, as it stood on 01.05.2001, signatures of the accused were not required on the "plea of guilty" but having regard to the facts and circumstances of the case, more particularly, when the writ petitioner has all along maintained that he was not guilty of the charges and remained absent from duty due to the reasons beyond his control, the Court should have been more careful while recording the "plea of guilty" and should have done well to obtain signatures of the writ petitioner as also friend of the writ petitioner appointed by the respondents to defend him. In the offence report the writ petitioner has clearly denied the charges, which ultimately became subject matter of trial before the SSFC. In his statutory appeal made to the Director General of Police, Border Security Force the writ petitioner has clearly stated that he had not made any "plea of guilty" before the SSFC. We also cannot lose sight of the fact that the writ petitioner had made serious allegations of harassment against his Commandant, who ultimately convened and presided over the SSFC. It is the said Commandant, who ultimately sentenced the writ petitioner by inflicting the punishment of "dismissal from service". Otherwise also, in view of the clear stand of the writ petitioner taken while recording his statement during preparation of "Record of Evidence" by Sh. It is the said Commandant, who ultimately sentenced the writ petitioner by inflicting the punishment of "dismissal from service". Otherwise also, in view of the clear stand of the writ petitioner taken while recording his statement during preparation of "Record of Evidence" by Sh. Bhanwar Singh appointed by the Commandant, it was incumbent upon the Court to advise the writ petitioner to withdraw his plea and try him as per the procedure laid down in the Rules. This part of the provisions contained in sub-rule (2) of Rule 142 of the Rules also does not appear to have been complied with by the SSFC". 9. From a perusal of record of the instant case, it clearly transpires that, on the date, the SSFC was convened i.e. 25.05.2000, the translated version of the charge-sheet was read over and explained to the petitioner and he was asked to plead guilty or not guilty to the charge to which he replied 'guilty'. After the petitioner pleaded guilty, he was explained the meaning of the charge and it also ascertained that the petitioner understood the nature of charge. The Commanding Officer has also recorded that the petitioner was also informed of the general effect of the plea and the difference in procedure which would follow in the event of said plea. It was only after the SSFC was satisfied that the petitioner had understood the charge and the effect of plea of guilty, the plea of guilty pleaded by the petitioner was accepted. The Commandant has signed the plea of guilty as well as the note prepared thereafter. Though, the Assistant Commandant Sh. S.N. Goswami 62nd Bn. BSF, who was appointed as a friend of the petitioner is shown to be present during the trial, yet his signatures have not been obtained anywhere to fortify the fact that the petitioner had actually pleaded guilty voluntarily. 10. Having regard to the fact that, all along before the plea of guilty of the petitioner was recorded during proceedings of SSFC, it is the clear stand of the petitioner that he overstayed leave because of the ailment of his wife and that he had made more than one request to the respondents seeking extension of his leave which request was neither accepted, nor any rejection thereof was communicated to the petitioner. Be that as it may, it is quite intriguing as to what made the petitioner to suddenly plead guilty when he had all along been insisting that he was prevented by sufficient cause from joining back his duties after the expiry of sanctioned leave. Good or bad, the petitioner had put forth an explanation for overstaying the leave. This was his stand before the Commandant when he was heard on the charge under Section 45 of the Act. He made similar statement when the record of evidence was prepared by the Deputy Commandant. In these circumstances and having regard to a categoric denial by the petitioner, the plea of the respondents, that the petitioner had pleaded guilty, becomes highly doubtful. On such solitary basis, the penalty of 'reduction of rank' which has the effect of depriving the petitioner of the service benefits cannot be held valid and sustainable in law. I am told that the petitioner has since retired on superannuation, as such, putting him back in service may not be the option now available. However, having regard to the fact that the petitioner has succeeded in establishing that the punishment of ' reduction in rank' was imposed upon him on the basis of plea of guilty recorded by the SSFC in violation of the provisions of Rule 142 of the BSF Rules, this petition succeeds. The impugned order of reduction of rank from Head Constable to Constable ordered by the respondents as also treating the period of absence as 'dies non' is set aside and the matter is remitted to SSFC to proceed with the trial in accordance with law as if the petitioner has not pleaded guilty. An appropriate order shall be passed by the respondents only after the trial is concluded by the SSFC strictly as per the Rules in which the petitioner would be provided fair opportunity to defend himself. Further relief to the petitioner viz. treating him as Head Constable in service, notwithstanding the impugned order of punishment of 'reduction in rank' passed by the respondents along with consequential benefits, shall depend upon the outcome of the trial and the orders that may be passed by the competent Authority. Further relief to the petitioner viz. treating him as Head Constable in service, notwithstanding the impugned order of punishment of 'reduction in rank' passed by the respondents along with consequential benefits, shall depend upon the outcome of the trial and the orders that may be passed by the competent Authority. Needless to say that in case the explanation tendered by the petitioner for overstaying his leave is accepted by the competent authority and he is exonerated of the charges, the petitioner would become entitled to all consequential benefits including variation of his post retiral benefits. Disposed of as such. Record be returned to the learned counsel for the respondents.