Bombay High Court
Machhindra Ganpat Gawali vs The Union Of India And Ors on 9 May, 2016
Bench: R.V. Ghuge
*1* 5.wp.6658.07
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6658 OF 2007
Machhindra Ganpat Gawali,
Age : 35 years, Occupation : Unemployed,
R/o Village and Post Apdhup,
Tehsil T.S.Parner,
District Ahmednagar.
...PETITIONER
-VERSUS-
1 The Union of India.
Through Ministry of Home Affairs,
New Delhi.
2 The Director General,
Border Security Force,
10th Block, CGO Complex,
Lodhi Road,
New Delhi-110003.
3 The Deputy Inspector General,
Border Security Force,
Cooch Behar,
West Bengal.
...RESPONDENTS
...
Advocate for Petitioner : Shri A. K. Gawali.
Asst.SG for Respondents : Shri S.B.Deshpande.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 09th May, 2016
*2* 5.wp.6658.07
Oral Judgment:
1 This petition was admitted on 10.04.2008 and interim relief
has been refused.
2 The Petitioner has challenged the order dated 11.07.2007
delivered by the Commandant, 46 BN BSF in his capacity as Presiding
Officer of the Summary Security Force Court (for short "SSFC") and the
order dated 20.09.2007 delivered by Respondent No.2/ Director General,
Border Security Force.
3 Shri Gawali, learned Advocate for the Petitioner, has
strenuously criticized the impugned orders. Primarily his contention is
that after the examination-in-chief was recorded in the enquiry, the
Petitioner was not made aware that he could pray for an adjournment or
seek some time for cross-examination of the witness.
4 Insofar as the merits of the charge are concerned, he has
narrated the charge leveled upon him. It is stated that a person is alleged
to have been permitted to cross over the Indian border and enter
Bangladesh without authorization, on payment of Rs.100/- to the
Petitioner. It is also alleged that the said person was waiting to cross over
the border to make his return trip to India and was apprehended. One of
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the witness, namely, S.I.Mahaveer Singh had animosity towards the
Petitioner. He has orchestrated the said witness by projecting him as the
person who had crossed over the fence towards Bangladesh.
5 Shri Gawali has taken me through the impugned orders as
well as through the entire oral evidence of the witnesses of both sides. The
contention is that there was no evidence before the Enquiry Committee to
conclude that the charge has been proved against the Petitioner.
6 He further submits that the first order dated 11.07.2007
passed by the SSFC is a cryptic and non-speaking order. This aspect should
have been gone into by Respondent No.2 who has failed to consider the
said challenge posed by the Petitioner and has mechanically passed an
order dated 20.09.2007.
7 Shri Gawali further submits that on the basis of the evidence
on record, it is apparent that the sequence of events is not complete and
the manner in which the tutored witnesses were brought before the
Authority by projecting them to be the persons who have crossed over the
border, would not convince any prudent person that the charges leveled
upon the Petitioner have been proved.
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8 Shri Gawali has placed reliance upon the judgment of the
learned Division Bench of this Court in the matter of Kantilal Bhanudas
Dukare vs. Officiating Commandant, 21C, 102 BN, BSF, 2010 (5) Mh.L.J.
394. He submits that this Court has ruled that when consequences are
either of dismissal or removal from service, the SSFC must discuss the
evidence on record on the basis of which it has reached the conclusion.
Merely reproducing the evidence in the enquiry and thereafter, abruptly
recording the finding, is not sufficient.
9 Shri Deshpande, learned Assistant Solicitor General appearing
on behalf of the Respondents, submits that the evidence before the SSFC
would clearly indicate that the guilt of the Petitioner has been established.
Eleven witnesses were examined before the SSFC. Material testimony is of
the person, namely, Arbindo Rai, who has crossed over the border by
paying the Petitioner Rs.100/- since he wanted to enter Bangladesh
purportedly to invite his relatives for attending the thirteenth day
ceremony of his father, who had passed away. It is on the return trip to
India that Mahaveer Singh noticed the said person along with a lady who
he claimed to be his aunt. Both of them wanted to cross over the border to
India.
10 Shri Deshpande, therefore, submits that it is in this backdrop
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that the act of the Petitioner was exposed. He further submits that the
totality of the evidence adduced before the SSFC was considered and the
order was passed. The Petitioner had preferred a statutory petition before
Respondent No.2 and the same has been decided by the said Authority by
passing a speaking order. He, therefore, submits that this petition deserves
to be dismissed.
11 Shri Deshpande has relied upon the following judgments:-
(a) Union of India and another vs. Dinesh Kumar, AIR 2010 SC
1551.
(b) Union of India vs. Ex Constable Amrik Singh, AIR 1991 SC
12 It is contended on the basis of the observations of the
Honourable Apex Court in paragraphs 6 and 7 of Amrik Singh judgment
(supra) that the principles of natural justice cannot be transformed into
fundamental rights. There has to be sufficient material before the Court to
decide as to whether, the charges leveled upon the employee are proved or
not. The Authorities have considered the entire evidence before it and
have concluded that the charges leveled upon the Petitioner have been
proved.
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13 I have considered the submissions of the learned Advocates. I
have also gone through the petition paper book with their assistance.
14 I have considered the testimony of Arbindo Rai who was the
first witness. In his deposition, he has specifically identified the Petitioner
as the person who was guarding the border at Gate No.3 and was the
same person to whom he had paid Rs.100/- for crossing over the border.
Even in the cross-examination, the said witness insisted that the Petitioner
was the person who had taken Rs.100/- for allowing him to cross over the
border.
15 S.I.Mahaveer Singh, who was the person due to which this
entire episode was brought to light, has also deposed in the enquiry. He
has narrated the whole incident in his deposition. He has stated that
Arbindo Rai, after seeing the Petitioner, had identified him immediately
and stated that he was the same person to whom he had paid money to
cross over the border. Mahaveer Singh has reiterated his story in his cross-
examination.
16 It is trite law that such enquiries are not to be conducted in a
manner as if a criminal trial is being undertaken. It is trite law that there
must be some evidence on record to conclude that the delinquent is guilty
*7* 5.wp.6658.07
of the charges levelled upon him. After considering the entire evidence of
the witnesses and their cross-examination, I do not find that it could be
said that there was no material before the SSFC to conclude that the
Petitioner is guilty.
17 Insofar as the contention of Shri Gawali that the first order
dated 11.07.2007 is a cryptic order, is concerned, I find that Respondent
No.2 while considering the statutory petition submitted by the Petitioner,
has gone into the entire facts of the case and evidence recorded. After
considering the same, he has concluded that the disciplinary authority had
rightly come to the conclusion that the Petitioner deserves to be dismissed
from service. A speaking and well reasoned order has been passed by
Respondent No.2.
18 Shri Gawali has contended that the Petitioner has put about
13 and ½ years in service. His past record is practically clean and he has
been awarded 10 medals for good service. He could have opted for
retirement after 1 and ½ years as the minimum required service is of 15
years. It is, therefore, prayed that leniency be shown to the Petitioner.
19 I find that this submission of Shri Gawali is an emotional
appeal. I am of the view that in a case of such nature wherein the
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delinquent is in the Border Security Force and guarding India-Bangladesh
border, he deserves no sympathy in the light of the fact that the charge of
accepting money for permitting persons to cross over to the other country
illegally has been proved. Infiltration and insurgency today are the biggest
challenge to the security of our country and no member of the Border
Security Force or any other Force guarding the borders should be
permitted to compromise the security of our country. No sympathy
deserves to be shown towards such delinquents as such installations are
zero-tolerance zones.
20 In the light of the above, I do not find any merit in this
petition and the same is, therefore, dismissed.
21 Rule is discharged.
kps (RAVINDRA V. GHUGE, J.)
