Balganad vs Union Of India And Ors.
2001 Latest Caselaw 1781 Del

JUDGMENT

Mukundakam Sharma, J.

1. In this writ petition, the petitioner has challenged the impugned order of conviction and sentence passed against him on 12th August, 1996 whereby the petitioner was dismissed from service. The petitioner has also challenged the legality of the order dated 7th January, 1998 whereby the statutory petition filed by the petitioner against his conviction and sentence by the Summary Security Force Court was rejected.

2. The petitioner was charged and the officiating Commandant vide order dated 9th August, 1996 prepared a charge sheet against the petitioner for trial of the petitioner under Sections 19(b) and 19(a) of the BSF Act. The charge framed against the petitioner pertained to his over-staying leave and unauthorised absence. The petitioner was tried by the Summary Security Force Court and after conclusion of the trial the petitioner was convicted and sentenced on 12th August, 1996 by dismissing him from service. Being aggrieved by the said order, the petitioner preferred a statutory petition before the competent authority under Section 117 of the BSF Act. The said statutory petition was considered by the competent authority and the same was rejected on the ground of having no merit.

3. It is established from the records that the petitioner was tried by the Summary Security Force Court on 12th August, 1996 and during the course of the aforesaid proceedings, the petitioner pleaded guilty against both the charges levelled against him in the charge sheet. The Summary Security Force Court having found the petitioner guilty of both the charges sentenced him to dismissal from service which was pronounced on 12th August, 1996.

4. It was submitted by Mr. V.P. Sharma, counsel for the petitioner that no order of conviction and sentence could have been passed by the respondents on the basis of the aforesaid alleged plea of guilty which was not recorded in accordance with the procedure prescribed for the purpose. It was also submitted by him that the plea of guilty of the petitioner was recorded in violation of the provisions of Rule 142(2) of the BSF Rules and in that view of the matter no conviction and sentence could have been ordered.

5. Counsel appearing for the respondents, however, refuted the aforesaid allegation and placed before me the records of the trial for my perusal.

6. In the light of the aforesaid, I proceed to dispose of this writ petition.

7. The records read with the statements made in the counter affidavit indicate that the petitioner was recruited in the Border Security Force on 23rd June, 1990 and thereafter he was dismissed from service in the year 1996. The petitioner had thus rendered about six years of service. The service record of the petitioner indicates that there are earlier instances also of the petitioner over-staying leave and being absent from duty without sanctioned leave. It is stated in the counter affidavit that the petitioner was dismissed from service on 23rd January, 1993 but later on he was reinstated in service on 21st April, 1995. The petitioner was granted leave of ten days with effect from 3rd November, 1995 and was to report back to duty on 12th November, 1995. However, the petitioner failed to report on the due date and after over-staying leave for five months that is about 157 days, the petitioner returned to the Unit and reported on 18th April, 1996. Documents are on record to indicate that during the aforesaid period the petitioner was directed through several letters by registered post sent to his home address to return back and report to the Unit but apparently the petitioner did not report back for duty, in terms of the aforesaid advise. A complaint was also lodged with the Station House Officer on 6th February, 1996, informing him about the desertion of the petitioner. The petitioner after a long gap returned and re-joined his duties and submitted an application on 20th April, 1996 requesting for discharge from service. After receipt of the said application when it was in the course of being processed, the petitioner again left the Unit without any information on 23rd April, 1996 and remained absent for about 104 days until he came back to the Battalion on 5th August, 1996. In the meantime, in terms of Section 62 of the BSF Act, a court of inquiry was ordered to enquire into the circumstances under which the petitioner had become a deserter from the Unit Lines.

8. On 5th August, 1996, the petitioner reported back for duty after being absent for about 104 days without leave. He was marched up to the Commandant who was officiating as Commandant with effect from 22nd July, 1996. The said officiating Commandant then heard the petitioner in terms of Rule 45 of the BSF Rules. During the hearing of the charge, the petitioner declined to cross-examine any of the prosecution witnesses or make any statement. Accordingly upon conclusion of the hearing of the charge on 6th August, 1996, record of evidence was directed to be recorded by the Commandant in terms of Rule 48 of the BSF Rules. Consequently, evidence was recorded on 7th August, 1996 during which, the petitioner declined to cross-examine any of the prosecution witnesses and also refused to put his signatures on the records of the proceedings. The original records of the trial placed before me clearly and categorically prove and establish the aforesaid position. The petitioner also declined to make any statement which was accordingly recorded and he also refused to produce any defense witness despite being given an opportunity in that regard. It was also recorded in the original records that the petitioner refused to sign on the record of the proceedings in presence of an independent witness. The aforesaid facts disclosed from the records clearly indicate that the record of evidence was recorded in presence of the petitioner and he was given full opportunity to make a statement, cross-examine prosecution witnesses and call for defense witnesses which, however, were declined by the petitioner. The petitioner also did not produce any documentary evidence to prove his innocence.

9. The petitioner submitted an application seeking for extension of leave only up to 15th January, 1995, which was refused by the respondents as he had no leave to his credit. On 8th August, 1996, a formal charge sheet was drawn up against the petitioner in respect of two offences under Sections 19(a) and (b) of the BSF Act respectively and by letter of the same date, the petitioner was informed that he was being tried by a Summary Security Force Court. A copy of the charge sheet and the record of evidence proceedings were also sent to the petitioner with a request to him to intimate his choice of officer of the battalion whom he would like to per form the duties of 'friend of accused' during the trial. The petitioner, however, refused to accept the said letter and the report thereto dated 10th August, 1996, appears at page 63 of the original records. Since the petitioner neither intimated his choice of defense assistant nor made any written request for the help of any assistant, the respondents in compliance of Rule 157 and by an order dated 11th August, 1996, appointed Shri Brita Ram as 'friend of accused' in order to assist the petitioner.

10. On 12th August, 1996, the petitioner was tried by the Summary Security Force Court in strict compliance of all the procedural requirements provided under the BSF Act and Rules. During the course of the aforesaid trial, the charges framed against the petitioner were read over and explained to him in Hindi in presence of members in attendance, as well as the 'friend of the accused'. The petitioner pleaded guilty to both the aforesaid charges. The Court also appended a Certificate in terms of plea of guilty of the petitioner to the charges in accordance with the provisions of the BSF Act and the Rules framed there under. It was recorded that the petitioner was informed about the general effect of the aforesaid plea and the difference in procedure which would be followed consequent to the aforesaid plea. The petitioner also declined and refused the opportunity to make a reference to the charge or on mitigation of the punishment.

11. All the aforesaid facts and position on record clearly establish that the procedure laid down in Rule 142 was fully complied with and, therefore, the grievance of the petitioner in that regard and as raised during the course of arguments is mis-placed. The petitioner refused to make any statement or cross-examine any witnesses in the record of evidence and when the charges were explained to him, he pleaded guilty to the charges. In spite of opportunities granted to the petitioner, the petitioner did not bring on record any documentary evidence to prove that he had neither over-stayed leave nor absented without permission.

12. Under similar circumstances, this Court upheld similar order of dismissal from service on plea of guilty in the case of Ex. Const. Diwan Bhai v. Union of India and Ors. ; in C.W.P. No. 4687/2001 disposed of on 4th September, 2001.

13. In view of the records of the proceedings of the Summary Security Force Court, the contention of the petitioner that he did not plead guilty is also without any merit. In that view of the matter, I find no merit in this petition and the same stands dismissed.