Ram Paul vs Union Of India (Uoi) And Anr.
2004 Latest Caselaw 661 Del

JUDGMENT

Mukundakam Sharma, J.

1. This writ petition is filed by the petitioner against the order of sentence passed by the respondents whereby the petitioner has been dismissed from service. Being aggrieved by the said order, the petitioner also filed an appeal before the appellate authority in the nature of a statutory appeal. The said appeal was disposed of by the appellate authority and the petitioner was so informed by communication dated 3.1.2001 intimating that the appeal filed by the petitioner has been rejected by the Director General as the same was found to be without any merit. Both the aforesaid orders are under challenge in this petition.

2. Before adverting to various pleas raised in this petition; it would be necessary to set out certain background facts leading to passing of the aforesaid order against the petitioner. The petitioner while working as Constable was posted at (Border Out Post) BOP, Banpur, on the Bangladesh Border when an allegation was brought against the petitioner that on 29.7.2000 while performing duty at fence gate No. 3 of the Border Out Post, Banpur, he not only did not exercise his authority but also did not prevent smugglers from crossing the border and to go into Bangladesh but in fact allowed the said smugglers to cross the border.

3. In the light of the aforesaid allegations, record of evidence was ordered to be prepared on 8.8.2000 after the petitioner pleaded not guilty to the two charges which were framed against him. The records of the evidence proceedings were placed before us by the counsel for the respondents. During the aforesaid record of evidence proceedings, witnesses were examined and some of the said witnesses were also cross-examined by the petitioner. After completion of the aforesaid record of evidence proceedings, the competent authority passed an order on 12.8.2000 for trial of the petitioner by Summary Security Force Court on a charge under Section 40 BSF Act. He also appointed the Deputy Commandant to act as friend of the accused at the trial. The records, however, disclose that in the aforesaid trial before the Summary Security Force Court, the charges against the petitioner came to be amended and a charge was framed against the petitioner in the following manner:

"in that he, at BOP Banpur, on 29.07.2000 at about 1155 hrs., while he was performing the OP Duty at Fence Gate No. 03 of BOP Banpur, accepted illegal gratification from local smugglers for allowing 50-60 bags of sugar to be smuggled out to Bangladesh, through the gate where he was on OP Duty."

4. The aforesaid charge was framed on 12.8.2000 by the Commandant. On 14.8.2000, the proceedings commenced when the petitioner was produced before the Commandant. The charge-sheet was thereafter read out and explained to the petitioner and after reading out the said charge-sheet, a question was put to the petitioner asking him whether he is guilty or not guilty of the charge. The accused answered that he is guilty of the charge. As the accused pleaded guilty to the charge, the Commandant on the same date proceeded to pass the order of conviction against the petitioner and sentenced him with an order that he shall be dismissed from service. The statutory appeal filed as against the said order was rejected which fact was communicated under letter dated 3.1.2001.

5. Counsel appearing for the petitioner has vehemently submitted that not only the appeal filed by the petitioner was disposed of in a very cryptic manner but even the order of dismissal passed against the petitioner is bad in law as there was total non-compliance of Rule 45 in the present proceedings it was also submitted that the charge on the basis of which the petitioner is convicted and sentenced was based on no evidence at all and, therefore, no sentence could have been awarded to the petitioner. It was also submitted by him that there was non-application of mind in communicating and awarding punishment to the petitioner and also that there is non-application of mind by the appellate authority while disposing of the appeal. Counsel appearing for the respondents, however, sought to defend the order of conviction and order of sentence by referring to the records. She further submitted that once the accused pleads guilty to the charge, no further action is required to be taken by the particular court. In support of the said contention, the learned counsel relied upon the decision in CWP No. 7021/2002 titled Chokha Ram v. Union of India and another decided on 5th March, 2004. She further submitted that the procedure prescribed in Rule 45 was duly complied with by the respondents. We may now, therefore, proceed to examine the merit of the rival submissions of the counsel appearing for the parties.

6. In the record of evidence proceedings, two charges were levelled against the petitioner and in none of the aforesaid two charges there was any reference at all of the petitioner accepting any illegal gratification. We have also carefully perused the statements of the witnesses, who were examined and cross-examined in the record of evidence proceedings. There was neither any reference nor any statement made by any of the witnesses that the petitioner accepted illegal gratification and after accepting the said illegal gratification allowed the smugglers to cross the international border. We have considered all the connected records, which are placed before us and on going through the said records, we find that no material is on record to show that any allegation at any point of time is made against the petitioner of accepting any illegal gratification. It is already indicated that in the trial before the Summary Security Force Court, the charge came to be amended wherein a specific allegation was brought against the petitioner that he had accepted illegal gratification from the local smugglers for allowing 50-60 bags to be smuggled out to Bangladesh These allegations are not (sic) by any (sic) on record and, therefore, we are of the considered opinion that the counsel for the petitioner justified in contending that the charges framed against the petitioner is based on no evidence. In this connection reference may be made to the decision of the Supreme Court in Major G.S. Sodhi v. Union of India, . Counsel appearing for both the parties placed strong reliance on the aforesaid case and, therefore, we cannot resist out temptation to refer to paragraph 17 of the said judgment. It is laid down in the said decision by the Supreme Court that investigation is only a preliminary step and meant for gathering of evidence and if there is sufficient material, the charge-sheet has to be filed. It was also held in the said decision that it is the report before the court-martial which is more important. The record of evidence proceeding is the investigation, which is meant for gathering of evidence. In the aforesaid investigation, if sufficient material and evidence is found, a charge-sheet could be filed. In the present case, there is no evidence and material on record not to speak of sufficient material for framing a charge sheet of accepting illegal gratification by the petitioner from local smugglers for allowing 50-60 bags to be smuggled out to Bangladesh. In our considered opinion, therefore, the charge which was framed by the respondents was baseless and, therefore, it was a case where the respondents should have ordered for a regular trial and should not have proceeded to convict and sentence the petitioner on the basis of plea of guilt. Since there is no evidence on record to make out a case for acceptance of illegal gratification by the petitioner, there could and should have been no conviction at the petitioner even assuming the petitioner had pleaded guilty after understanding all the circumstances. Therefore, we are of the considered opinion that the conviction and sentence passed against the petitioner is illegal and without jurisdiction and the same is liable to be quashed on this ground alone, which we hereby do.

7. Since we have set aside the order of conviction and sentence on this ground alone, we consider it unnecessary to deal with other pleas raised regarding non-compliance of the provisions of Rule 45 and denial of procedural safeguards. However, we would like to comment upon another aspect, which is brought to our notice. It is pointed out that the appeal filed by the petitioner was a statutory appeal. The petitioner was intimated by communication dated 3.1.2001 that his appeal was disposed of by the Director General as the same is devoid of merit. It is unfortunate that even the order of the appellate authority was not communicated to the petitioner as that the petitioner could understand the manner in which the appellant authority had exercised its mind to the pleas raised by the petitioner in appeal petition. As we gather from the communication issued, the appellate authority rejected the appeal on the ground that it is devoid of merit. If the disposal of the appeal was in the manner as stated in the said communication, one cannot but hold that the said order of the appellate authority is cryptic and is devoid of reasons. While disposing of an appeal, the appellate authority discharges a statutory function and acts as a quasi-judicial authority. Therefore, the appellate authority is required to give due weightage and apply its mind and take a conscious and considered decision and dispose of the appeal giving reasons for its decision. The order disposing the appeal must indicate that there has been proper application of mind by the authority to all the pleas raised and the reasons for the decision are also to be explicit in the order itself. On that count also the order of the appellate authority is found to be invalid and, therefore, the said order is also required to be set aside. Consequently both the orders which are impugned herein, namely, the order of the appellate authority as also the order of conviction and sentence are set aside. The petitioner is directed to be reinstated in service with all consequential benefits. It shall, however, be open to the respondents to take further or other actions in respect of the allegations brought against the petitioner in accordance with law. In the facts and circumstances of the case, we leave the parties to bear their own costs.