Satpal Singh vs Union Of India (Uoi) And Ors.
2005 Latest Caselaw 37 Del

JUDGMENT

B.N. Chaturvedi, J.

1. The petitioner, a BSF Constable was, on 23rd of September, 1998, posted at BOP Goalpara. On that day, after seeking necessary permission from the Commandant, he proceeded with one Tapas Kumar Mandal on his motorcycle to Ghojadanga for his weekly purchases. On way to Ghojadanga, at Chowrangee Market, he came across with some people who had been collecting donation for DURGA PUJA. They stopped the motorcycle and urged the petitioner for donation. The petitioner, however, refused to oblige them. Thereupon, a scuffle took place between them and the petitioner, in which the petitioner sustained an injury as a result there was some bleeding from his right ear.

2. On an information in regard to the incident reaching BOP Ghojadanga, one SI Subrat Mishra reached the spot. He found the petitioner in an inebriated condition there. He was badly smelling of alcohol. He also noticed that he had sustained some injury on his person. The petitioner was taken by SI Subrat Mishra to BOP Ghojadanga. Next day, the petitioner was moved to BOP Goalpara.

3. On 28th of September, 1998, the petitioner was placed under suspension by the Commandant. He directed Record of Evidence vide order dated 7.10.1998 and pursuant thereto, Record of Evidence was completed by one S.G.Goel, Deputy Commandant of the Unit on 9th of October, 1998. A Summary Security Force Court was held at Headquarters 127 Battalion, BSF, Tagorevilla, Calcutta, on 26th of March, 1999 and the petitioner was tried on two heads of charges reading as under:-

" 1st CHARGE BSF ACT -68 SEC.-40

AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE

In that he, at 1500 hrs on 23.9.98 at Goalpara BOP left the BOP with a civilian, namely, Tapas Kumar Manda, r/o Village Dakshinpara Ghojadanga area and consumed illicit alcohol and quarreled with civilian, in violation of Unit order No.HQ/127 Bn/SOP/97/22644-54 dated 01.12.97

IIND CHARGE BSF ACT - 68 SECTION 26

INTOXICATION

In that he, while deployed at BOP Goalpara on 23.9.98 at around 1600 hrs was found in a state of intoxication."

4. Finding the petitioner guilty of the aforesaid charges, he was awarded sentence of dismissal from service vide order dated 30th of March, 1999.

5. On 6th of July, 1999, the petitioner filed an appeal against the aforesaid order of dismissal, which was, however, dismissed by the Director-General, BSF, CGO Complex, Lodhi Road, New Delhi and the order in that regard was conveyed to the petitioner by BSF Headquarters vide letter No. 6/50/99-Pet/CLO(D&L)/BSF/3643-47 dated 17.9.1999.

6. The respondents, in their counter-affidavit, state that on an information in regard to the incident reaching BOP Ghojadanga, SI Subrat Mishra, Post Commander, rushed to the spot where the petitioner was found sitting on a bench surrounded by about 150 locals. He was heavily intoxicated and bleeding from right ear. Since the incident took place in close proximity to the international border, it was viewed seriously and the petitioner was placed under suspension by an order dated 28.9.1998. The petitioner was marched before the Commandant on offence report on 6th of October, 1998 and after hearing him under Rule 45 of BSF Rules, Record of Evidence was ordered. On completion of Record of Evidence, it was found that a prima facie case was made out against the petitioner on both the charges and it was, accordingly, decided to try him by holding a Summary Security Force Court. He was informed about his SSFC trial in the morning on 25th of March, 1999 and was informed under Rule 33 of BSF Rules to prepare his defense. To facilitate this, copies of chargesheet and Record of Evidence were supplied to the petitioner. At trial, the petitioner was afforded reasonable opportunity to defend himself. Before passing the sentence, the Court had considered the conduct sheet/Record of Evidence of the petitioner and it was only on consideration of all aspects that it passed the sentence " to be dismissed from service".

7. It is maintained that the penalty imposed being commensurate with the gravity of the offence, it is not liable to be interfered with. Conducting provocatively and misbehaving with the civilians under the influence of liquor, thereby creating public nuisance in a sensitive area along the international border were such acts of indiscipline which warranted no punishment short of dismissal from service. It is maintained that the petitioner was held guilty of the charges in view of sufficient evidence in that regard. The service record reveals that the petitioner was a habitual offender, which is evident from the following punishments awarded during his eleven years of service in BSF:

"7 days extra guard duty under Section 40 on 6.8.93.

5 days RI in force custody under Section 19(a) and 40 on 20.3.1996; and

14 days RI in force custody under Section 19(a) on 8.1.99."

8. According to the respondents, the petitioner was given every opportunity to take assistance of any person, including a legal practitioner before the Summary Security Force Court trial vide letter dated No. 4345 dated 25.3.1999. The petitioner was, in addition, informed in writing, about appointment of an officer as a `Friend of the Accused' under BSF Rule, 157, who was present throughout with the petitioner at the trial, to advise him. It is asserted that there was sufficient evidence that the petitioner was heavily drunk and under the influence of liquor he picked up a quarrel with the civilians. Being a member of the Force, he was expected to conduct in a decent and disciplined manner, in which he failed.

9. The appeal of the petitioner was, according to the respondents, duly examined by the competent authority and a decision dismissing the same was conveyed to the petitioner vide registered letter No. 6/50/99-Pet/CLO(D&L)/BSF/3643-47 dated 17.9.1999.

10. The petitioner challenges the impugned order of dismissal from service on the ground that the same was passed illegally and arbitrarily, without any valid reasons, in violation of principles of natural justice. According to the petitioner, the Summary Security Force Court failed to consider the evidence on record. It is added that the petitioner was not subjected to any medical examination and no medical report was available to prove the charge that he had consumed alcohol. It is complained that the petitioner was not allowed to have an Advocate to represent him at the trial and being not well conversant with English, he could not understand the proceedings before the Summary Security Force Court and the trial was, thus, conducted in gross violation of principles of natural justice. It is also pleaded that the penalty of dismissal from service was disproportionate to the gravity of alleged misconduct, of which he was held guilty.

11. The presence of the petitioner at Chowrangee Market where the incident of fight with the civilians had taken place is evident from the statement of the petitioner itself which he made in the course of record of evidence. He himself submitted that he had a scuffle with the civilians. Of course, his explanation is that the scuffle took place in view of an attempt by the civilians to snatch money from him. Statement of Tapas Kumar Mandal, the friend of the petitioner, also supports the charge against the petitioner that he had a fight with the civilians. The charges against the petitioner under two heads are that he had consumed illicit alcohol and quarreled with civilians and further that he was found in a state of intoxication. Apart from the statement of the petitioner and his friend Tapas Kumar Mandal regarding fight with civilians, there are statements of one Chura Mani Karamkar, Secretary of Chowrangee Market and SI Subrat Mishra who had reached the spot on gathering about the involvement of the petitioner in the incident. To support the charges, no doubt the petitioner was not subjected to any medical examination to ascertain that he had consumed alcohol and was in a state of intoxication, statements of Chura Mani Karamakar and SI Subrat Mishra in that regard were accepted to find that the petitioner had consumed liquor and was found in a state of intoxication. Of course, a report from a doctor on medical examination of the petitioner would have been a better piece of evidence to establish the aforesaid facts however, absence thereof cannot be used as a ground to unsettle the finding of the Summary Security Force Court holding the petitioner guilty of the charges.

12. In the face of the statements of witnesses examined in the course of record of evidence, coupled with the petitioner's own statement, to contend that finding of guilty lacks basis is difficult to assimilate. Of course, Tapas Kumar Mandal had stated that he and the petitioner had not consumed liquor, the affirmations of Chura Mani Karamkar and SI Subrat Mishra speak quite to the contrary. Preponderance of evidence being loaded against the petitioner, the charge in regard to consumption of liquor by the petitioner and his being found in a state of intoxication was held established inspite of Tapas Kumar Mandal's statement to the contrary. Simply as the statements of Chura Mani Karamkar and SI Surat Mishra were preferred to the statement of Tapas Kumar Mandal in finding that the petitioner had consumed liquor and fought with the civilians and that he was found in a state of intoxication, the plea that the Summary Security Force Court had failed to consider the evidence on record would not appear to be well founded.

13. The other argument that being not well conversant with English in the absence of an advocate the petitioner could not understand the proceedings before the Summary Security Force Court also sounds difficult to accept.

By annexure R-2, the petitioner was informed of being tried by a Summary Security Force Court on 26th of March, 1999 at 0815 hrs. and he was given the liberty of seeking assistance of any person, including a legal practitioner, at his own expense. The petitioner. in corresponding para of his rejoinder to the respondents' reply, did not specifically deny that such a letter had been received by him. In the course of trial by the Summary Security Force Court, at no point of time the petitioner apprised the Summary Security Force Court that he intended to avail of the services of a legal practitioner. There is no denial that the petitioner had been informed of appointment of an officer as a `friend of the accused', and that such officer continued to be present in the course of trial to render required assistance to the petitioner in case he so needed. Thus, an opportunity to seek assistance of any person, including a legal practitioner, in the course of Summary Security Force Court trial was afforded to the petitioner but the petitioner himself omitted to avail of the same. The proceedings of Summary Security Force Court indicate that the charge sheet was duly read over and explained to the petitioner and an opportunity to cross-examine the witnesses examined in the course of trial was afforded to the petitioner and he availed of the same. The cross-examination of some of the witnesses by the petitioner in person suggests that he knew what the witnesses had deposed against him and he even produced two witnesses in his defense. At no point of time he appears to have pleaded before the Summary Security Force Court that he was unable to effectively defend himself for not being able to understand the proceedings or the nature of statements made by the prosecution witnesses. In the circumstances, the plea that the petitioner did not know the nature of proceedings held by the Summary Security Force Court and that reasonable opportunity of defending himself by taking assistance of a legal practitioner was denied to him appears to be without any substance. The Summary Security Force Court record, made available for perusal, does not suggest that the trial was conducted in violation of principles of nature justice.

14. Lastly, the efficacy of the plea relating to disproportionality of the punishment awarded to the petitioner is not to be adjudged by viewing the misconduct in question in isolation. The petitioner's past service record, apart from individual charges of misconduct for which he was tried and held guilty, would appear as much relevant in passing a judgment on adequacy or otherwise of the punishment inflicted. During a relatively short span of his eleven years of service, the petitioner has earned to his discredit a dubious distinction of being visited with varying punishments, as set out heretofore, for his acts of indiscipline, on previous three occasions. Such punishments were, however, lost in oblivion as the same appear to have had no sobering effect on the petitioner and his erratic behavioral pattern witnessed no improvement even on his posting to a sensitive area close to the international border. Indiscipline breeds indiscipline. Any disciplined force can ill-afford to acquiesce the acts of indiscipline by a soft paddling approach when enforcing discipline with an iron hand is dire need in all eventualities. No doubt, dismissal from service represents an extreme penalty in one's career graph, where retention of a member of the force becomes a liability in getting rid of such an incorrigible incumbent would perhaps be the only course which commends to reason. In such a situation, any punishment short of dismissal from service would rather be counter-productive. Viewed thus, no fault can be found with the punishment awarded. No interference with impugned order being warranted, the petition is dismissed. No costs.