Union Of India & Ors vs Smt. Pramila Devi
2022 Latest Caselaw 4045 Cal

     07.07.22
09   Ct. No.03
      Sws.M
                                       FMA 178 of 2019
                                            With
                                     IA. No. CAN 4 of 2020

                                     Union of India & Ors.
                                              Vs.
                                      Smt. Pramila Devi


                     Mr. Rudrajyoti Bhattacharya
                                           .....for the appellants

                     Mr. Srijib Chakraborty
                     Mr. Rahul Poddar
                     Mr. Sandip Kumar Dutta
                                        ....for the Respondent

This is an appeal by the Central Government

from a judgment and order dated 15 th December,

2017 made by the learned single judge of this Court in

a writ application (WP No. 5689(W) of 2007) (Smt.

Pramila Devi vs. The Union of India & Ors.). By this

judgment and order the writ application of the

respondent in the appeal was allowed.

We also record that in the Court below the

appellants could not use an affidavit-in-opposition.

For proper appraisal of facts and for the ends of

justice we permit them to rely on the documents in

the application described as one under Order 41 Rule

27 of the Code of Civil Procedure.

The application (CAN 4 of 2020) is allowed.

The writ application challenged an order of

dismissal from service of the husband of the

respondent from the Border Security Force made by

the Summary Security Force Court, inter alia, under

Chapter IV of the Border Security Force Act, 1968

read with, inter alia, Chapter VII of the Border

Security Force Rules, 1969.

The respondent's husband, Dinesh Sharma was

a constable in the Border Security Force. He is now

dead.

Allegedly on 21st March, 2001 at 10.40 hrs. he

was found in "a state of intoxication". On 23 rd March,

2001, three charges was served upon him. The first

was that allegedly he absented from duty without

leave, on 22nd March, 2001 from 6.00 to 11.00 p.m.

The second charge was that on 21 st March, 2001 he

left the unit lines without proper permission. The

third was that he was found in "a state of

intoxication" on 21st March, 2001 at 11.00 p.m.

On 30th March, Dinesh was dismissed from

service.

The learned single judge allowed the writ

application on two principal grounds. His lordship in

the impugned judgment and order expressed the

opinion that adequate opportunity was not given to

Dinesh to answer the show-cause or the charge-sheet.

Secondly, the learned judge found the

punishment of dismissal to be excessive and

disproportionate.

The Union of India is in appeal before us from

this judgment.

Learned counsel for the appellants has placed

before this Court the types of punishment that can be

imposed on a delinquent as mentioned in Section 48

under Chapter IV of the said Act.

The said Section is inserted below:

" 48. Punishments awardable by Security Force Courts - (1) Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by Security Force Courts according to the scale following, that is to say, -

(a) death;

(b) imprisonment which may be for the term of life or any other

lesser term but excluding imprisonment for a term not exceeding three months in Force custody;

(c) dismissal from the service;

(d) imprisonment for a term not exceeding three months in Force custody;

(e) reduction to the ranks or to a lower rank or grade or place in the list of their rank in the case of an under-officer;

(f) forfeiture of seniority of rank and forfeiture of all or any part of the service for the purpose of promotion;

    (g) forfeiture     of    service       for    the
       purpose        of      increased          pay,

pension or any other prescribed purpose;

(h) fine, in respect of civil offences;

(i) server reprimand or reprimand except in the case of persons below the rank of an under-

officer;

(j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active duty;

(k) forfeiture in the case of person sentenced to dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such dismissal;

(l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence for which he is convicted is made good.

(2) each of the punishments specified in sub-section (1) shall be deemed to be inferior in degree to every punishment preceding it in the above scale."

Learned counsel has also placed in detail the

procedure for investigation and summary disposal of

for cases for alleged misconduct by an officer accused

under Chapter VII of the Border Security Force Rules,

1969, specially Rules 45A and 45B, which provide

details of procedure regarding the hearing of charges

against an accused person.

There is also scope of imposition of minor

punishment which was pointed out by Mr.

Chakraborty, learned counsel for the respondent by

referring to Section 53 of the said Act.

What is most important in our opinion is

Section 49 of the said Act which is as follows:

"49. Alternative punishments awardable by

Security Force Courts - Subject to the provisions of

this Act, a Security Force Court may, on convicting a

person subject to this Act of any of the offences

specified in sections 14 to 45 (both inclusive) award

either the particular punishment with which the offence

is started in the said sections to be publishable or, in

lieu thereof, any one of the punishments lower in the

scale set out in section 48 regard being had to the

nature and degree of the offence."

Learned single judge has held that the rules of

natural justice were not properly complied with. To

this, learned counsel for the appellants submitted

that when the procedure under the said Act was for

framing of charges, hearing of charges, which

included an opportunity to the respondent's husband

to cross examine the witnessess for the prosecution

there was substantial compliance with the rules of

natural justice. The respondent's husband of the writ

petitioner did not avail of this opportunity.

Even if we accept the submission of learned

counsel for the appellants the question still remains

as to whether the punishment was proportionate.

The respondent, as the wife of the accused, is

defending the appeal.

The retiral benefits of the delinquent have been

withheld because of this punishment.

For a particular act like intoxication the

authority, the Security Force Court has the power of

imposing the punishment of dismissal. Under Section

49, it has also the power to impose a lesser

punishment. Thus in the award of punishment, in our

opinion the authority is required to exercise its

discretion in each case according to its facts,

judiciously and reasonably.

Here, the accused is dead. His family is

financial need. Any misuse of discretion in awarding

punishment would result in financial deprivation for

the family for no fault of theirs.

In our opinion, the discretion under Section 49

was not properly exercised by the said authority.

If the offence complained of is proved, we agree

with the learned single judge that the punishment

appears to be excessive and disproportionate.

For those reasons we affirm the impugned

judgment and order of the learned single judge with

the only modification that the appellants shall within

six weeks from date revise the order of punishment

against the respondent's husband Dinesh Sharma by

imposing an appropriate minor punishment. The

retiral benefits of the respondent's husband are to be

released by the appellant to the respondent within 3

months from date.

The appeal is disposed of accordingly.

Urgent certified photocopy of this order, if

applied for, be supplied to the parties upon

completion of usual legal formalities.

(I.P. MUKERJI, J.)

(SUBHENDU SAMANTA, J.)