Ex. L/Nk Vimal Kumar Singh vs Union Of India & Ors.
2010 Latest Caselaw 2827 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                 Judgment reserved on : 17th February, 2010
                           Date of decision: 31st May, 2010

+                      W.P.(C) No.236/2000

     EX. L/NK VIMAL KUMAR SINGH           ..... Petitioner
                    Through Mr. K.K. Jha, Adv.

                       versus


     UNION OF INDIA & ORS.                   .... Respondents

Through Mr. Rajat Gaur, Adv. with Mr. Yadhunath Singh, Deputy Commandant

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether reporters of local papers may be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

GITA MITTAL, J

1. By this writ petition, the petitioner assails an order and

sentence dated 17th February, 1999 passed by the Summary

Security Force Court (hereinafter referred to "SSFC" for brevity)

finding the petitioner guilty of an offence under Section 26 of

the Border Security Force Act, 1968 (hereinafter referred to

"BSF Act" for brevity) and the sentence of dismissal from

service. The petitioner also assails the action of Deputy

Inspector General, respondent no. 2 in countersigning the

dismissal order on 8th April, 1999 and the order dated 13/16th

August, 1999 whereby the petitioner's revision petition under

Section 117 (2) of the BSF Act was rejected by the respondent

no.2.

2. The petitioner was enrolled on 1st April, 1986 into the

Border Security Force. In 1995, he was promoted as a lance

naik and finally posted to 130Bn B.S.F. located at Salbagan,

Tripura in which position he was serving at the time of the

incident resulting in the passing of the impugned orders.

3. It is alleged that while returning from patrolling duty along

with Inspector D.K. Das on 26th December, 1998 at about 1700

hours, the petitioner got down in Madhopur on the pretext that

he wanted to buy meat. Thereafter, information was received

by Inspector D.K. Das at about 1830 hours to the effect that the

lance naik 'Ustad' was going to die for the reason that he was

moving towards a dangerous area in Deo Verma village in a

state of intoxication carrying meat and was abusing everybody

he met on his way. On receipt of this information, Inspector D.K.

Das immediately reached the spot along with four other officials.

Both the petitioner and a civilian were brought back to the

headquarters for further proceedings. On a physical

examination of the petitioner, a liquor bottle was found

concealed inside the petitioner's shirt which fell down and

broke, besides packets of cigarette and two match boxes.

4. A written complaint dated 27th December, 1998 was made

by Inspector D.K. Das in this regard to the Commandant and Sh.

P.V. Eappen, D.C. In this complaint, Inspector D.K. Das had

informed the Commandant, 130 Bn., BSF, Salbagan (Agartala)

that the petitioner was a habitual drunkard & that instead of

performing statutory duties, the force personnel were compelled

to protect the petitioner because of his wayward behaviour.

Reference was also made to an earlier incident of 24th

December, 1998 involving the petitioner as well and it was

submitted that proper action be initiated against him.

5. On this complaint, the Deputy Commandant, Shri P.V.

Eappen, who was also adjutant of the company, endorsed the

following remarks:-

"L/NK. Vimal Kumar Singh is a habitual drunkard and complaints against him have been continuously received. Recently he has been punished U/S 26. As he is not likely to improve nor is there any effect of minor punishment on him, a strict disciplinary action may kindly be initiated against him."

6. The commandant proceeded to hear the charge in

accordance with Rule 45 of the Border Security Force Rules,

1969 (hereinafter referred to "BSF Rules" for brevity). An

offence report dated 28th December, 1998 under Rule 43 was

prepared alleging that on 26th December, 1998 at about 1700

hours, the petitioner was found in the state of intoxication at

Madhopur Market. The list of witnesses was also mentioned in

the offence report. So far as the documents relied upon were

concerned, only the complaint dated 27th December, 1998 was

referred to. The respondents have contended that the charges

against the petitioner were read out and explained and the

available documents furnished to him. Opportunity to cross-

examine the five prosecution witnesses was given which was

declined by the petitioner.

7. On completion of hearing of the charge, Shri Raj Singh, the

Commandant, 130 Bn, BSF directed preparation of an Abstract

of Evidence under Rule 49 of the BSF Rules and detailed the

aforesaid Shri P.V. Eappen, Deputy Commandant for the same.

8. In the abstract of evidence which was recorded by Shri P.V.

Eappen, eight witnesses namely PW 1 - Inspector D.K. Das, PW II

- SK Deb Barman, PW III - Kishan Lal; PW IV - Chandan Singh; PW

V - Baldev Singh, PW VI - Sweeper Desh Raj, PW VII - HC

Nagendra Jha & PW VIII - Jethu Singh, were examined between

30th & 31st December, 1998.

The abstract of evidence shows that PW I, II, III, IV, V, VII &

VIII have deposed about the happenings of 26th December,

1998. Additionally, Head constable Nagendra Jha as PW VII gave

evidence about a similar incident on 24th December, 1998. This

witness further stated that when the petitioner was brought

back to the company on 26th December, 1998 and was being

searched, he took out a liquor bottle from his vest and threw the

same in the verandah. PW VIII stated that the petitioner was

medically examined on the 26th of December, 1998 at 2245

hours by Dr. B.B. Thapa and produced the medical examination

certificate before the officer recording the abstract of evidence.

9. The respondents have also pointed out that after recording

the evidence of these witnesses, in compliance with Rule 48 (3)

of the BSF Rules, the petitioner was given an opportunity to

make a statement after having been duly cautioned. The

petitioner made a statement before the officer recording the

abstract of evidence on the 4th January, 1999 stating that he had

consumed liquor before his lunch. He stated that when

confronted by the company commandant, he was neither under

the influence of liquor nor drunk as alleged by the witnesses.

The petitioner also attributed the purchase of the liquor bottle,

in his possession, as having been bought for Inspector D.K. Das

and that it had fallen out when he was removing the bottle from

his underclothes. The petitioner prayed for grant of one last

chance.

10. It is an admitted position before us that the petitioner was

placed under close arrest vide the order dated 27th December,

1998 and under open arrest with effect from 6th January, 1999 in

terms of Rule 33(2)(a) of the BSF Rules.

11. On a consideration of the abstract of evidence, the

Commandant passed an order dated 13th February, 1999

directing that the petitioner would be tried for an offence

committed by him under Section 26 of the BSF Act, 1968 by a

Summary Security Force Court ('SSFC' hereafter for brevity).

12. The charge on which the petitioner was arraigned to stand

trial before the SSFC read as follows :-

"BSF ACT, 1968 SECTION 26 'INTOXICATION' In that he, at Madhopur Market on 26.12.98 at about 1700 hrs was found in a state of intoxication."

13. The proceedings of the Summary Security Force court were

held on 17th February, 1999 by the commandant. The petitioner

was assigned Shri R.V. Yadav, Assistant Commandant of the

battalion as the friend of the accused, in accordance with Rule

157 of the BSF Rules, 1969. The chargesheet was stated to

have been read and explained to the petitioner.

14. The proceedings of the court conducted on 17th February,

1999 have been placed before this court. The commandant has

recorded that he satisfied himself that the accused understood

the charges as well as the difference in the procedure which

would be followed by the court consequent upon a plea of 'guilt'.

15. It is contended by the respondents that the petitioner

pleaded guilty to the charge and that, consequently, the

respondents followed the procedure prescribed under Rule

142(2) of the BSF rules. No evidence was recorded by the

Summary Security Force Court. After recording a plea of guilty

and returning the finding of guilty of the charge, the abstract of

evidence prepared earlier is stated to have been read over and

explained and attached to the proceedings.

16. It is noteworthy that the SSFC gave an opportunity to the

petitioner to make a statement in reference to the charge or in

mitigation of the punishment. The SSFC has recorded that the

petitioner had set up a plea for award of minimum punishment

and had refused to call any witness as to his character.

17. So far as the report of his general character was

concerned, the court received a report of poor conduct and that

the petitioner had rendered service of over twelve years and ten

months with the force. Upon a consideration of these matters,

the SSFC directed that the petitioner be dismissed from service.

The findings and orders of the SSFC were countersigned by the

Dy. Inspector General, respondent no.2, on 8th April, 1999.

18. The petitioner has made a grievance that he was not given

any copy of the record of the abstract of evidence or

proceedings of the court until the 8th of June, 1999. The

sentence of the SSFC was promulgated and implemented

immediately. The petitioner has contended that he was handicapped

by the non-availability of any record and prejudiced in filing the

statutory appeal under Section 117(2) of the BSF Act challenging the

sentence of the SSFC. The submission is that the petitioner had

submitted his petition under this provision on 18th April, 1999

reserving his right to submit additional grounds. Copy of the record

was sent to the petitioner under the cover of a communication dated

28th May, 1999 and was actually received by him only on 8th June,

1999. In these circumstances, the petitioner submitted additional

grounds on 14th June, 1999. The respondent no.2 has rejected both

these petitions vide the impugned order dated 13/16th August, 1999

simply stating that the petitions were devoid of merit.

19. Before this court, the petitioner has vehemently

challenged the charges which were framed against him as well

as the procedure adopted by the respondents. The petitioner

has contended several violations of Rule 49 as well as 48(3) of

the BSF Rules by the officer who has recorded the abstract of

evidence.

20. The petitioner has challenged the impugned orders inter

alia on grounds of procedural irregularities which go to the root

of the exercise of jurisdiction by the respondents. The

petitioner contends that he was seriously prejudiced and that

the rules of natural justice were outrightly flouted as Shri P.V.

Eappen, DC who was detailed to prepare the abstract of

evidence was actually one of the complainants against the

petitioner and had endorsed his adverse view against the

petitioner on the complaint. Violation of principles of natural

justice is, therefore, contended.

21. The petitioner assails the record of a plea of guilty to the

charges prepared by the respondents. The petitioner has

vehemently disputed the correctness and authenticity of the

record prepared by the respondents on the ground that the

same does not bear his signatures. It is urged that evidence of

the material civilian witnesses including the alleged informant

and the person who was accompanying the petitioner has not

been recorded. The submission is that even the statement

attributed to the petitioner does not support the allegations and

that there is no evidence to support the charge of intoxication.

He submits that the admission, if any, was only to the extent

that he had consumed liquor when he was not on duty. He had

not admitted to being intoxicated. The medical report prepared

by the doctor also did not support the charge of his being

intoxicated.

22. It is urged that none of the statutory protections were

ensured, that the charges or the consequences of the pleas

were not explained. The petitioner has challenged the

certification with regard to compliance with the statutory rules

by the officer recording the abstract of evidence as well as the

proceedings based thereon conducted by the commandant. The

petitioner has urged bias against both of them.

23. It is contended that having regard to the serious

consequences which resulted to the petitioner, the respondents

were bound to strictly comply with the statutory provisions as

well as the principles of natural justice in letter and spirit.

It is further submitted that in any case the sentence

imposed on the petitioner was grossly disporportionate to the

nature of allegations against the petitioner.

24. Learned counsel for the respondents has on the other hand

vehemently defended the action which has been taken against

the petitioner. According to him, the petitioner voluntarily

admitted his guilt and all statutory provisions & procedural

safeguards have been complied with leading to the inevitable

conclusion of guilt of the petitioner. Mr. Rajat Gaur, learned

counsel has submitted that the punishment imposed on the

petitioner in the given facts was justified and fair.

25. We may first examine the petitioner's contention that the

action of the respondents is unsustainable on the ground that

preparation of the abstract of evidence was assigned to an

officer who had already taken a strong view against the

petitioner in writing and that his bias has resulted in denial of

statutory protection and a fair trial to the petitioner.

26. We find that it is undisputed that Shri P.V. Eappen who was

a Deputy Commandant and had been appointed the adjutant of

the battalion, endorsed the abovenoted comments on the

complaint dated 27th December, 1998 of Inspector Das. A bare

reading of these comments would show that Shri P.V. Eappen

had taken a clear view so as the conduct of the petitioner is

concerned. The question which has to be answered is as to

whether this would vitiate the further proceedings conducted by

him in preparing the abstract of evidence on the ground that he

was biased against the petitioner; as well as the consequent and

ensuing proceedings of the SSFC, its finding of guilt against the

petitioner and the order of sentence imposed on him thereafter

as illegal on the ground that they violated principles of natural

justice.

27. We find that the written complaint dated 27th December,

1998 was addressed by Inspector D.K. Das to Shri P.V. Eappen

who had thereon endorsed remarks to the effect that the

petitioner was in the habit of imbibing liquor and that constant

complaints against him were being received. Shri Eappen had

also stated that the petitioner had been recently punished under

Section 26 of the BSF Act. It was his clear view even at that

stage that the petitioner was incapable of being reformed and

that minor penalties on him would have no deterrent effect. In

his note on 27th December, 1998 Shri Eappen had recommended

that strictest disciplinary action be taken against the petitioner.

These comments are self-explanatory in nature and manifest

the obvious opinion he held of the petitioner.

28. The Supreme Court had occasion to consider the legality of

a challenge to an order of dismissal from service passed by a

General Security Force Court constituted under the Border

Security Force Act in the judgment reported at AIR 2003 SC

1416 Union of India Vs. B.N. Jha. The court's observations

on the spirit, purpose and intendment of the statute,

applicability of principles of natural justice and bias of the court

deserve to be considered in extenso and read as follows :-

"17. The scheme of the Act and the Rules leading to holding of a trial by the General Security Force Court leaves no manner of doubt that the basic principles of natural justice have been codified therein. The provisions of the Act and the Rules in no uncertain terms envisage protection from bias against an officer. We may notice that the Act which was enacted in the year 1968 even sought to fill up the gaps occurring in other Acts like Army Act, Navy Act or Armed Forces Act in this behalf so as to

protect a person from personal bias or a real likelihood of bias. Rule 46 was made with a view to achieve the said purpose. It is not in dispute having regard to the phraseology used in Rule 45B of the Rules that an accused at the first instance is bound to the tried by his Commandant."

(Underlying supplied)

The Supreme Court further reiterated the classification of

bias under three heads being, legal interest which means that

the Judge is in such a position that a bias must be assumed;

pecuniary interest; and personal bias. The court placed

reliance on legal expansion of these expressions in texts and

judicial pronouncements which throw valuable light on the issue

and may be usefully extracted as follows:

"30. Law in this regard has expanded to a great extent. In J.F. Garner's Administrative Law, it is stated:

"the natural justice 'bias' rule looks to external appearances rather than to proof of actual improper exercise of power. If the reasonable observer would have the requisite degree of suspicion of bias in the decision-maker then that decision can be challenged. It is a matter of the courts ensuring that 'justice is seen to be done'. Since successful challenge is based on appearances, it is natural that the types of matter to which the rule applies is somewhat confined. As we shall see it clearly applies to judicial and disciplinary functions but not generally more widely to administrative decision making and actions."

31. In Metropolitan Properties Co. (FGC) Ltd. v. Lannon reported in 1968 (3) All ER 304, Lord Denning MR observed:

"In considering whether there was a real likelihood of bias; the court does

not look at the mind of the justice himself or at the mind of the Chairman of the Tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does it, his decision cannot stand; see R. v.

Huggins (8), Sunderland Justices (9), per Vaughan Williams, L.J.

Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough; see R. v. Camborne Justices, ex parte Pearce (10); R. v. Nailsworth Justices, ex parte Bird (11). There must be circumstances from which a reasonable man would think it likely or probable that the justice, or Chairman, as the case may be, would, or did, favour one side unfairly at the expenses of the other. The court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence and confidence is destroyed when right minded people go away thinking; 'The Judge was biased'."

29. In the Oxford English Dictionary, Second Edition, "Bias" is

defined at page 166 as follows :-

"2. a. To give a bias or one-sided tendency or direction to; to incline to one side; to influence, affect (often unduly or unfairly)."

"Biased" has been defined in this dictionary as:

"2. a. influenced; inclined in some direction;

unduly or unfairly influenced; prejudiced."

30. In the instant case, an issue relating to personal bias of the

officer who recorded the abstract of evidence has been

complained of. In (1993) II LLJ 549 SC Ratan Lal Sharma

Vs. Managing Committee, Dr. Hari Ram (Co-Education)

Higher Secondary School, the court considered a large

number of decisions and observed that the requirement of the

natural justice must depend on the circumstances of the case,

the nature of the enquiry, the rules under which the tribunal is

acting, the subject matter that is being dealt with, and so forth.

It further noticed that the doctrine of natural justice cannot be

put within the strait-jacket of a rigid formula. The court further

noticed that De Smith in his Judicial Review of Administration

Action at page 262 observed that "a real likelihood of bias

means at least a substantial possibility of bias". These

principles would apply to the present consideration.

31. The Supreme Court considered the issue of real likelihood

of bias in the judgment reported at MANU/SC/0059/1973 :

(1973) II LLJ 473 SC S. Parthasarthi Vs. State of Andhra

Pradesh and held as follows:-

"16. The tests of 'real likelihood' and 'reasonable suspicion' are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The court must look at

the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If right- minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the inquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision [see per Lord Denning, H.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1968) 3 WLR 694. We should not, however, be understood to deny that the court might with greater propriety apply the 'reasonable suspicion' test in criminal or in proceedings analogous to criminal proceedings."

(Underlining supplied)

32. The grounds for disqualification of Shri P.V. Eappen from

appointment/detailment as an officer to prepare an abstract of

evidence have to be determined from the circumstances in the

present case, the prior events and the attitudinal bias towards

the accused which ultimately led to a reasonable apprehension

of bias.

33. Further, bias relates to factors that can be said to

predispose an officer's approach in the preparation of the

abstract of evidence. Shri P.V. Eappen's comments and

observations appended to the complaint dated 27th December,

1998 is a factor relevant and material so as to manifest his

predisposition and approach in the manner in which he prepared

the abstract of evidence.

34. The respondents, however, contend that Shri Eappen was

only preparing the abstract of evidence and was not the

adjudicating authority.

35. In this behalf, reference can usefully be made to the

observations by De Smith in his renowned text Administrative

and Constitutional Law which was relied upon by the court in

Union of India Vs. B.N. Jha (supra) as well and reads as

follows:-

"If the main functions of a tribunal are to determine disputed questions of law and fact, and to exercise discretionary powers by reference to standards that are not self-created but explicitly prescribed by statutory or other rules, on the basis of evidence openly tendered, and if, moreover, the abdicators can normally be expected to preserve a detached attitude towards the parties and issues before them, then a 'departure from the standard of even-handed justice which the law requires from those who occupy judicial office, or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator ought not to be and will not be countenanced."

36. It is trite that principles of natural justice would apply with

full force to such conduct which leads directly to the final act of

decision. In para 26 of Union of India & Ors. Vs. B.N. Jha

(supra), the Apex Court reiterated the well settled principles that

the duty to act fairly is the theme of the principles of natural

justice. The court placed reliance on the elaboration of this

principle in Halsbury's Laws of England which has a bearing on

the present case as well. The statement of law in para 85 of

Halsbury's Laws of England, Vol 1 (i), 4th Edition, relied

upon in UOI vs. B.N. Jha (supra) sets out the applicable

principles succinctly and reads as follows :-

"85. ...Thus a presumption that natural justice must be observed will arise more readily where there is an express duty to decide only after conducting a hearing or inquiry or where the decision is one entailing the determination of disputed questions of law and fact. Prima facie, moreover, a duty to act in accordance with natural justice will arise in the exercise of a power to deprive a person of his livelihood or of his legal status where that status is not merely terminable at pleasure, or to deprive a person of liberty or property rights or another legitimate interest or expectation, or to impose a penalty on him; though the conferment of a wide discretionary power exercisable in the public interest may be indicative of the absence of an obligation so to act. Where a discretionary power to encroach upon individual rights is exercised, factors to be taken into account in deciding what fairness requires in the exercise of the power include the nature of the interests to be affected, the circumstances in which the power falls to be exercised and the nature of the sanctions, if any, involved. The content of the duty to act fairly will normally be very limited where the authority is in the course of exercising a function not culminating in a binding decision, but that may not be the case if the wording of the grant of powers or the context indicates that a fair hearing ought to be extended to persons likely to be prejudicially affected by an investigation or recommendation."

On a careful reading of the above extract, it is clear that

observation of principles of natural justice in cases involving

inquiry, investigation and recommendations which impact the

final decision, is not only inevitable but essential.

37. Section 70 of the BSF Act provides that the commandant of

any unit shall hold the SSFC. In the instant case, it is important

to note, that the officer recording the abstract of evidence was

not the authority who was to adjudicate upon the innocence or

guilt of the petitioner with regard to the offence with which he

was charged. As per the statutory scheme, discretion is

conferred on the Commandant under Section 70 even to take a

final decision based on such abstract of evidence.

38. An abstract of evidence is ordered and prepared under

Rule 49 of the Border Security Force Rules, 1965 (BSF Rules,

1965 hereafter). As per sub-rule 2(a), the abstract of evidence

is required to include signed statements of witnesses whenever

available or a precis thereof as well as copies of all documents

intended to be produced during trial. Under sub-rule (3) of Rule

49, the accused is mandatorily required to be given an

opportunity to make a statement after he has been cautioned in

terms of sub-rule (3) of Rule 48.

39. Rule 48 prescribes the manner in which the record of

evidence is to be prepared by a commandant or an officer

detailed by him to do so. So far as the caution which is required

to be given to the accused person is concerned, the same is

prescribed under sub-rule (3) whereby the officer recording the

evidence is required to inform the accused of the options

available to him as to whether to make a statement or not. The

accused is required to be informed that such statement as made

by him, would be taken in writing and may be used as evidence

against him. Only thereafter statement if any, made by him is

to be taken down in writing.

40. The above narration would show that substantial statutory

power and discretion is conferred on the officer preparing

the abstract of evidence which would enable him to give a

particular slant to the evidence and the statements which he

was recording or abstracting. There is sufficient opportunity

also to influence and impact the statement and conduct of

an accused person on the part of officer so detailed in view

of the explanations and cautions he has to administer to

him.

41. Once completed, the abstract of evidence is

required to be placed before the Commandant. Under

Rule 51, upon going through the abstract of evidence the

Commandant can at that stage itself, inter alia dismiss

the charges against the accused person; or rehear the

charge and award one of the summary punishments; or try the

accused by a Summary Security Force Court; or apply to a

competent officer or authority to convene a court for the trial of

the accused.

42. Even though the officer who records the abstract of

evidence is not an adjudicator or the judge in the matter,

however, he occupies a crucial position, as his observations are

significant enough to be able to influence the result of its

consideration by the commandant merely by the manner in

which he records the abstract of evidence and his approach in

recording the same.

43. So far as the punishment which could be awarded by the

Summary Security Force Court is concerned, the same is

prescribed under Section 48 of the BSF Act. The same ranges

from a sentence of death under sub-section (a), to imprisonment

for a term extending from three months upto life under sub-

section (b) of Section 48 of the BSF Act. Under sub-section (c),

the security force court may sentence a person with dismissal

from service; imprisonment for a term not exceeding three

months in force custody under sub-section (d); reduction to the

ranks or to a lower rank or grade or place in this list of their rank

in the case of an under-officer under sub-section (e); forfeiture

of seniority of rank and forfeiture of all or any part of the service

for the purpose of promotion under sub-section (f); forfeiture of

service for the purpose of increased pay, pension or any other

prescribed purpose under sub-section (g); fine, in respect of civil

offences under sub-section (h); severe reprimand or reprimand

except in the case of persons below the rank of an under officer

under sub-section (i); forfeiture of pay and allowances for a

period not exceeding three months for an offence committed on

active duty under sub-section (j) and 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 under sub-section (k).

The discretion conferred on the court, therefore, is

substantial and the punishment which it may impose is severe.

Valuable rights of the person arraigned to stand trial before the

Security Force Courts are impacted.

44. Merely because the role of preparing an abstract of

evidence is not on the same platform as that of a decision

making authority, yet it would be wrong to undermine the

significance and the role of the officer recording the evidence,

the nature of task entrusted upon him and its relevance in the

decision making process in any disciplinary proceedings.

45. In the present context 'bias' derives its shade from the

dictionary meaning and includes `a departure from the standard

of even-handed justice' which the law requires from those who

occupy judicial office, quasi judicial office as well as significant

stages that come into the making of a complete valid trial. It is

necessary that all such officers and authorities come with an

independent mind. The standard of what will constitute bias

varies from case to case and with the nature of the function

performed by the officer who is stated to be biased. Having

regard to the scheme of the BSF Act and extensive reliance

placed by the court thereunder on the recording of the abstract

of evidence in the subsequent proceedings, the significance of

preparation of such abstract of evidence cannot be sufficiently

emphasised. It can, therefore, be concluded that an officer

detailed for preparing an abstract of evidence must be such who

can act with a cold neutrality. He must be an officer who is not

in an awry position and his approach towards the case of the

accused and towards the accused in person is central.

Certainly, he ought not to have taken a position against the

accused person and have pre-determined the charge.

46. It is noteworthy that Rule 49 of the BSF Rules permits the

commandant to record the abstract of evidence himself.

However, vide the order dated 28th December, 1998, the

Commandant detailed the Deputy Commandant Shri P.V.

Eappen for the same.

47. The petitioner stood charged with the commission of an

offence under section 26 of the Border Security Force Act, 1968.

The commission of an offence under Section 26 is punishable by

imprisonment extending upto six months or such lesser

punishment as is prescribed under the Act. Section 48(c) and

thereafter of the statute prescribe dismissal, punishment of

reduction of rank and the other punishments noticed

hereinabove.

48. Our attention has been drawn to the note which was

appended by Shri P.V. Eappen to the report dated 27th

December, 1998 submitted by Inspector D.K. Das which formed

the very basis of initiation of the action against the petitioner.

This note was placed before the Commandant who on

consideration thereof directed preparation of the abstract of

evidence. There is, therefore, force in the petitioner's

contention that Shri Eappen was a complainant in the matter.

49. The endorsement given by Shri P.V. Eappen on the

complaint dated 27th December, 1998 renders him eligible in

fact to be a witness on behalf of the prosecution. Instead, he

was detailed to record the 'abstract of evidence'.

50. In the SSFC proceedings conducted against the petitioner,

the only material relied upon to find the petitioner guilty of the

charge by the commandant is the abstract of evidence prepared

by Shri P.V. Eappen. No evidence was recorded by the court.

51. Valuable rights of the petitioner in the present case that

were at stake including his service record, reputation in society

and liberty. Most importantly his employment which had been

his means of livelihood for the past 13 years approximately, an

essential concomitant of the right to life, was at risk.

52. As per the statutory scheme noticed above, an officer

recording the abstract of evidence is able to influence the

proceedings of the court also by the manner in which he records

the evidence and the consequential sentence which is imposed

upon a person. Thus, the requirement of fairness in the

procedure which was followed at all stages becomes crucial.

In this background, it cannot be held at all that the degree

of independence and fairness required on the part of Shri P.V.

Eappen was in any way lesser than that was required of the

person conducting a trial.

53. It is clearly evident that Shri P.V. Eappen had taken a firm

view so far as the complaint against the petitioner is concerned

as well as the action which was necessary against him. His

comments raise justifiable doubts as to his independence as the

officer preparing the abstract of evidence. A person whose

conduct is under scrutiny is entitled to a sustained confidence in

the independence of the minds of those who occupy significant

positions in the stages of the investigation and the trial. The

detailment of an officer for recording of the abstract of evidence

is a serious matter and could not have been assigned to

somebody who had already taken a view against the person

whose conduct was under examination, manifesting his bias

against the accused person.

54. The courts have deprecated proceedings which reflected

even reasonable likelihood of bias. In the given facts, it is highly

improbable, if not impossible, that Shri Eappen could have

exercised independent mind without any inclination or bias in

his attitude towards the petitioner while recording the abstract

of evidence.

55. In view of the above discussion, it has to be held that the

detailing of Shri P.V. Eappen for recording the abstract of

evidence was illegal and violative of the rights of the petitioner

on the ground that the same is in violation of well settled

principles of natural justice.

56. The present writ petition would deserve to be allowed on

this short ground alone, however, the petitioner has assailed the

impugned orders on several other grounds. Certain other

aspects of the case require to be noticed. It is also noteworthy

that the record of the hearing of the charge on the offence

report on 28th December, 1998 does not give any details of the

statement of witnesses who were heard by the commandant, if

at all. The proceedings placed before this court show that a

mere format was maintained in which certain particulars in

terms of names and dates have been filled in. The certification

of having complied with the requirement of Rule 45 B is in a

typed format.

57. The respondents have placed heavy reliance on the plea of

guilt which has been recorded by the commandant in the SSFC

proceedings held on 17th February, 1999. The petitioner has

vehemently disputed that he pleaded guilty to the offences with

which he was charged.

58. Rule 142 of the BSF Rules, 1969 prescribes as to how a

plea of guilty or not guilty should be recorded and reads as

follows :-

142. General plea of "Guilty" or "Not Guilty".- (1)The accused person's plea of 'Guilty' or 'Not Guilty' (or if he refuses to plead or does not plead intelligibly either one or the other), a plea of 'Not Guilty' shall be recorded on each charge.

(2) If an accused person pleads 'Guilty' that plea shall be recorded as the finding of the Court but before it is recorded, the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that

plea, and in particular of the meaning of the charge to which he has pleaded guilty, and of the difference in procedure which will be made by the plea of guilty and shall advise him to withdraw that plea if it appears from the record or abstract of evidence (if any) or otherwise that the accused ought to plead not guilty.

(3) Where an accused person pleads guilty to the first two or more charges laid in the alternative, the Court may after sub-rule (2) has been complied with and before the accused is arraigned on the alternative charge or charges, withdraw such alternative charge or charges as follow the charge to which the accused has pleaded guilty without requiring the accused to plead thereto, and a record to that effect shall be made in the proceedings of the Court.

59. If an accused person pleads guilty to the charges, the

Security Force Court is required to comply with the

requirements of sub-rule 2 of rule 142. Such plea is mandatorily

to be recorded as the finding of the court but before it is so

recorded, the court is required to ascertain that the accused

understands the nature of the charge to which he has pleaded

guilty. The court is required to inform him of the general effect

of that plea, and in particular of the meaning of the charge to

which he has pleaded guilty. The court is also required to

inform the accused person of the difference in procedure which

will be followed by the court upon the accused entering a plea of

guilty and shall advise him to withdraw that plea if it appears

from the record or abstract of evidence (if any) or otherwise that

the accused ought to plead not guilty.

Sub-rule 2 casts a duty on the court to ascertain from the

accused, before recording of the plea of guilt, as to whether he

understands nature of the charge to which he has pleaded guilty

and shall inform him of the general effect of his plea after

ensuring that he has understood the nature of the charge. The

court shall enter the plea only thereafter and proceed with the

trial accordingly.

60. Rule 81 stipulates the procedure which is to be followed on

a plea of guilty. When the court has so recorded a finding of

guilty in respect of the charge, the prosecutor then is required

to read the record or the abstract of evidence, as the case may

be to the court or inform the court of the facts contained

therein. Thereafter, under sub-rule (3) of rule 81, the accused

person may (a) adduce evidence of character and in mitigation

of punishment; (b) address the court in mitigation of

punishment, (c) proceed under Rule 101 when sub-rule (3) has

been complied with. In accordance with Rule 101, the court

shall take evidence of the general character, age,previous

conviction and record of the conduct of accused person;

decorations, reward, period spent in custody or confinement etc.

The court would give an opportunity to the accused person to

cross examine witnesses, to produce such record and address

the court in mitigation of his punishment.

61. Similar statutory provisions governing army personnel are

to be found in the Army Act & Rules thereunder. In the context

of recording of pleas of guilt by court martials exercising

jurisdiction thereunder, the courts have repeatedly emphasized

that signatures of the accused especially on a plea of guilt, even

though they are not statutorily required, ought to be taken as a

matter of abundant caution.

62. The statutory scheme with regard to recording of a plea of

guilt under the Border Security Force Act is similar to the

scheme under the Army Act. The observations of the Jammu

and Kashmir High Court on the manner in which a plea of guilt is

to be recorded in 1984 (3) SLR 675 Prithpal Singh Vs.

Union of India & Ors., which arose in the context of the Army

Act, shed valuable light on the issue which has been argued

before us. On this question, in para 9 of the judgment, the court

held as follows:-

"10. The most important aspect of the case is as to whether the petitioner had pleaded guilty to the charges as is suggested by Mr. Hussain or not. Plea of guilt recorded by Lt. Col. Mehta is dehors Rule 115 of the Army Rules. In the first place the alleged plea of guilt is unsigned by the authorities. Surprisingly the petitioner also has not signed the alleged plea of guilt. At what stage word 'guilty' was recorded against each charge is not known. If it was recorded in presence of the accused/petitioner obviously his signatures would have been obtained on it. Then the minutes of the enquiry should have contained an advice to the petitioner not to plead guilty as enjoined by Rule 115 of the Army Rules. This important mandate of the Rule has been flagrantly violated. Therefore the proceedings conducted by the Summary Court Martial which have affected the petitioner's fundamental rights as he is deprived of his job are vitiated. The protection afforded by the

procedure should not have been denied to the petitioner if it was intended to proceed against him under the Army Rules. As to whether charges were correct or not as already observed this Court cannot go into that aspect of the matter. But certainly this Court will set aside the punishment which is awarded to the petitioner on the ground that the decision to punish the petitioner was taken by contravening the mandate of Rules. Such a decision would be arbitrary and shall be violative of the guarantees contained in Article 14 of the Constitution. The argument of the learned Counsel for the respondent that the petitioner was not prejudiced in any manner during the Summary Court Martial proceedings is devoid of force. The petitioner has suffered punishment of dismissal from service and the punishment is awarded by conducting proceedings in such a manner which were neither fair not judicial. Could the Summary Court Martial observe the Rules governing the conduct of Summary Court Martial in breach. Answer to this question will be emphatic no in view of the glory of the Constitution and rights guaranteed by it."

The court had thus observed that if the statement was

recorded in the presence of the accused/petitioner, obviously,

his signatures would have been obtained on it.

63. On this very issue, in MANU/JK/0017/2007 : 2007 (2) JKJ

197 Sukanta Mitra Vs. Union of India & Ors., the court

observed as follows:-

"9. This apart the fact remains that the appellant has been convicted and sentenced on the basis of his plea of guilt. The plea of guilt recorded by the Court does not bear the signatures of the appellant. The question arising for consideration, therefore, is whether obtaining of signatures was necessary. In a case Union of India and Ors. v. Ex- Havildar Clerk Prithpal Singh and Ors. KLJ 1991 page 513, a Division Bench of this Court has

observed:

"The other point which has been made basis for quashing the sentence awarded to respondent- accused relates to clause (2) of rule 115. Under this mandatory provision the court is required to ascertain, before it records plea of guilt of the accused, as to whether the accused undertakes the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea and in particular of the meaning of charge to which he has pleaded guilty. The Court is further required under this provision of law to advise the accused to withdraw that plea if it a appears from summary of evidence or otherwise that the accused ought to plead not guilty. How to follow this procedure is the main crux of the question involved in this case. Rule 125 provides that the court shall date and sign the sentence and such signatures shall authenticate of the same. We may take it that the signature of the accused are not required even after recording plea of guilt but as a matter of caution same should have been taken."

xxx xxx

11. Admittedly, in the present case signatures of the accused/appellant have not been obtained on the plea of guilt recorded by the BSF Court which as a matter of caution must have been obtained and nor it is revealed from the record that the appellant was ever informed about the general effect of the plea of guilt."

64. Our attention has also been drawn to the judgment of this

court dated 17th January, 2008, passed in LPA No. 254/2001

entitled The Chief of Army Staff & Ors. Vs. Ex. 14257873

K. Sigmm Trilochan Behera, wherein the court had occasion

to consider the case where plea of guilt of the respondent was

recorded on a printed format. The court deprecated the non-

recording of complete plea which was not signed by the

respondents as well. This case had also arisen in the context of

recording of a plea of guilty by a court martial under the Army

Act and in a similar situation, the court observed as under.

"5. Secondly, the signatures of the respondent were not obtained on any of these proceeding. The plea of the respondent was recorded on a printed format. The column of arraignment reads as under :

"By the Court-How say you No. 14257873K ULNK Trilochan Behera are you guilty or not guilty of the .................... charge preferred against you?

The answer is recorded as "Guilty". It does not mention what was the charge though a separate chargesheet has been placed on record which is dated 22nd March, 1994, which is not signed by the respondent. The complete plea of guilt of the respondent was not recorded."

No date was mentioned on the paper where this was

recorded. The record did not bear the signatures of the judges

as well. Certain other procedural guidelines had also not been

complied. The court held that failure to comply with the

prescribed procedure amounted to violation of the procedural

safeguards provided in Army Rule 115(2) and were violative of

the rights of the accused under Article 14 of the Constitution of

India.

65. On the same issue, in 2003 II AD (Delhi) 103 Lachhman

(Ex.Rect.) v. Union of India & Ors., it was held :-

"13. The record of the proceedings shows that the plea of guilty has not been entered into by the accused nor has it been recorded as per Rule 115 inasmuch neither it has been recorded as finding of court nor was the accused informed about the general effect of plea of guilt nor about the difference in procedure which is involved in plea of guilt nor did he advise the petitioner to withdraw the plea if it appeared from the summary of evidence that the accused ought to plead not guilty nor is the factum of compliance of Sub-rule (2) has been recorded by the

Commanding Officer in the manner prescribed in Sub- rule 2(A). Thus the stand of the respondents that the petitioner had entered into the plea of guilt stands on highly feeble foundation."

66. In Uma Shanker Pathak vs. UOI & Ors. 1989 (3) SLR

405 Allahabad High Court had occasion to deal with this

question and held that :-

"10. The provision embodies a wholesome provision which is clearly designed to ensure that an accused person should be fully forewarned about the implications of the charge and the effect of pleading guilty. The procedure prescribed for the trial of cases where the accused pleads guilty is radically different from that prescribed for trial of cases where the accused pleads 'not guilty'. The procedure in cases where the plea is of 'not guilty' is far more elaborate than in cases where the accused pleads 'guilty'. This is apparent from a comparison of the procedures laid down for these two classes of cases. It is in order to save a simple, unsuspecting and ignorant accused person from the effect of pleading guilty to the charge without being fully conscious of the nature thereof and the implications and general effect of that plea, that the framers of the rule have insisted that the court must ascertain that the accused fully understands the nature of the charge and the implications of pleading guilty to the same."

67. In the decision dated 8th September, 2008 in W.P.(C)

No.6036/2005 Ex. Naik Subhash Chander Vs. UOI & Ors.

this court had occasion to test the propriety and legality of a

record of a summary security force court which is identical to

that in the present case. Ex Naik Subhash Chander was tried

for committing an offence under section 20 of the BSF Act. The

plea of guilt against the petitioner had been recorded in

identical terms. The observations of the court can also be

usefully extracted and read as follows:-

"11..........The possibility of its being manipulated cannot be ruled out. Such like certificates can be prepared at any time. This justifies the need for obtaining the signatures of the accused viz. to lend authenticity to such a record."

68. In the above background, compliance with the statutory

mandate has to be real. No cosmetic satisfaction or compliance

could meet the requirements of law and a bald certification by

the respondents that statutory provisions have been complied

with is insufficient. Such certification certainly does not satisfy

the legal requirements.

69. Our attention is drawn to the photocopy of these

proceedings which has been placed on record by the petitioner.

The plea of guilt of the petitioner has been recorded on a typed

format, the columns whereof reads as follows :-

"Q-1. How say you No. 860014234 L/NK Vimal Kumar Singh, are you guilty or not guilty of the charge, which you have heard read?

Ans. GUILTY"

Only the word "Guilty" is handwritten.

70. We find that the following had already been typed below

the space for the above answer:-

"The accused having pleaded guilty to the charge, the court read and explained to the accused the meaning of the charge to which he has pleaded guilty and ascertains that the accused understands the nature of the charge to which he has pleaded guilty. The court also informed the accused the general effect of that

plea and the difference in procedure which will be followed consequent to the said plea. The court satisfies itself that the accused understands the charge and the effect of that plea and the difference in procedure which will be followed consequent to the said plea. The court satisfy itself that the accused understands the charge particularly the difference in procedure."

The above indicates that the SSFC had at the outset

assumed that the petitioner would plead guilty and has

proceeded on that basis.

71. Thus in the typed format interestingly, even though the

respondents have left a blank space for filling up an answer to

the Q-1 noted above by the accused. However, below the space

for the answer, the full proceedings which are to be recorded

upon the accused having pleaded guilty to the charge, are found

to have been typed. The respondents have also typed in the

certification of the compliance with the requirements of Rule

142(2) of the BSF Rules. The SSFC proceedings do not bear the

signatures of the petitioner at any place at all. In the light of the

above discussion, this omission is crucial.

72. Perusal of this document does not show as to what was the

charge to which was explained to the petitioner to which he

pleaded guilty and it is left to presumption that it was actually

the contents of the charge sheet dated 28th December, 1998

which was put to the petitioner and that he pleaded guilty to the

same.

73. It is noteworthy that a separate charge sheet has been

placed on record dated 17th February, 1999. This charge sheet

also does not bear the signatures of the petitioner.

74. Even if it was to be held that no illegality can be founded in

the failure to obtain signatures by the court, it is clearly evident

that there was no real trial of the petitioner at all and that the

respondents had proceeded against the petitioner in a

premeditated manner after having predetermined the result of

the proceedings.

75. The petitioner has contended vehemently not only before

us but also in his petitions dated 18th April, 1998 as well as 14th

June, 1999 that he was severely handicapped in the proceedings

which were conducted by the respondents. It has been pointed

out that the petitioner is illiterate having barely studied upto

10th class and does not know the English language. The

submission is that the petitioner was handicapped by his

inability to understand any of the proceedings which were taken

and have been relied upon by the respondents. It is noteworthy

that rule 62(h) of the BSF Rules, 1969 casts a duty on the officer

of a convening court to appoint an interpreter whenever

necessary. Even in his petition dated 14th June, 1999, the

petitioner raised a plea that no proper interpreter was ever

appointed.

76. A grievance is made by the petitioner that Shri R.V. Yadav,

Assistant Commandant who was appointed as friend of the

accused, did not assist him at all. Several additional points with

regard to discrepancies in matters of detail relating to the time,

location of the petitioner, failure to examine the person who is

alleged to have informed Inspector Das, have been asserted in

support of the challenge by the petitioner. The respondents do

not disclose even the particulars of the person who allegedly

gave the information to the petitioner's battalion.

77. It has also been staunchly contended that the respondents

are not even in a position to disclose the names and particulars

of the civilian with whom the petitioner was allegedly found

roaming at the Madhopur market on the 26th December, 1998

even though such civilian was allegedly brought back to the

battalion, clearly giving the lie to the case set up against the

petitioner. This civilian was certainly a material witness in

support of the charges who has not been examined.

78. Learned counsel for the petitioner has placed reliance on

the pronouncement of the Supreme Court reported at AIR 2000

SC 277 Hardwari Lal Vs. State of Uttar Pradesh & Ors. In

this case, the Apex Court was of the view that the inquiry was

not proper on the ground of non-observance of principles of

natural justice for the reason that evidence of two material

witnesses had not been recorded. The court held that in this

background, the order of dismissal was required to be set aside

and the contention of the respondents that there was other

material which was sufficient to come to the conclusion one way

or the other, would not justify sustenance of the order of

dismissal for the reason that the testimony of the complainant

who had not been examined, could not be wished away.

In the case in hand also, as noticed above, the plea of the

petitioner has not been considered and material evidence has

not been produced.

79. Learned counsel for the petitioner has also strongly

contended that the respondents have relied on the report of the

medical examination of the petitioner conducted on 26th

December, 1998 wherein the doctor had opined that even

though the petitioner had consumed liquor and was under the

influence of alcohol, he was without any loss of control over his

faculties. Mr. Jha, learned counsel has placed extensive reliance

on material defining intoxication and its parameters. The

respondents have explained that the petitioner was taken to the

hospital on 2250 hours on that date and the medical

examination was conducted thereafter which is more than five

hours after the incident as reported in the offence report.

80. Be that as it may be, the statement of the petitioner

purportedly recorded by Shri P.V. Eappen on the 4th January,

1999 also shows that the petitioner had explained that he had

consumed liquor before lunch but had denied that he was under

influence of liquor or drunken as alleged by the witnesses or

intoxicated as alleged by the respondents. He had also stated

that the liquor which was found in his possession had been

purchased for inspector D.K. Das, the complainant. The

statement attributed to the petitioner, stretched to its

maximum, would amount to an admission of consumption of

liquor before lunch. It does not by itself establish quantum of

his drink or his state of mind or senses. If the statement in its

entirety was to be accepted and considered, it would be difficult

to bring home the charge that the petitioner was not in his

senses or was intoxicated. The admission of consumption of

liquor would by itself not establish the fact as to whether the

petitioner was in a state of intoxication or not.

81. The petitioner has also vehemently attributed motives for

his implication by Inspector Das and Sweeper Des Raj. He has

contended that these two persons had borrowed money and

were nurturing malice against the petitioner for the reason that

he was demanding return thereof. The record shows that the

sweeper Des Raj has subsequently returned Rs.5000/- through a

bank draft vide BN HQ letter No. Estt/130Bn/BK/99/875/dated 5th

August 1999. The petitioner has also placed reliance on the

statement of Ct. Driver Chandan Singh (PW IV) and Insp. D.K.

Dass (PW 1) to contend that these persons have not alleged that

the petitioner was intoxicated even though they had met the

petitioner at 1700 hours. This was certainly relevant material.

The impugned orders do not reflect that any of these issues

have been at all considered.

82. In view of the above discussion, it has to be held that the

respondents have failed to abide by the statutory mandate in

recording the proceedings of the SSFC. The order dated 17th

February, 1999 of the Summary Security Force Court finding the

petitioner guilty of offences under Section 26 of the BSF Act as

well as the order of sentence imposed on the same date, are

contrary to law and principles of natural justice; legally not

sustainable and are, accordingly, hereby set aside and quashed.

83. For the same reason, the order countersigning of the

dismissal order on 8th April, 1999 by the Dy. Inspector General

as well as the order dated 14th June, 1999 passed by the Director

General communicated under the letter signed on 13/16th August,

1999 are also not sustainable and is hereby set aside and quashed.

84. In view of the order of dismissal being set aside, the

question which finally arises is that what would be the

consequential reliefs which would flow therefrom. The petitioner

would obviously require to be reinstated into service with

continuity of service for all purposes.

85. The petitioner is accordingly directed to be reinstated into

service with benefit of notional promotions and seniority.

Appropriate orders in this behalf shall be passed by the

respondents within six weeks.

86. However, the entitlement of a workman to get reinstated

on account of setting aside of an order of termination of his

service, does not necessarily result in payment of back wages.

The Supreme Court has held that this question would be

independent of the order of reinstatement. (Ref :

MANU/SC/8107/2006 : AIR 2006 SC 2466 : (2006) 4 SCC

733 UPSRTC Ltd. vs. Sarada Prasad Misra & Anr.)

87. So far as the issue of payment of back wages is concerned,

no rigid or mechanical or strait-jacket formula can be followed

and the same depends on the facts and circumstances of each

case. [Ref : see para 17 of U.P. SRTC Ltd. Vs. Sarada

Prasad Mishra & Anr.(supra)]. It was observed that the

power of the court is discretionary which has to be exercised by

a court or tribunal keeping in view the facts in their entirety and

all relevant circumstances independent of the order of

reinstatement into service.

88. So far as relevant circumstances are concerned, some of

the factors which have weighed with the court in grant of

appropriate back wages have included the following :-

(i) the nature of employment and regular service of

permanent character would not be comparable to a short or

intermittent daily wage employment though it may be for 240

days in a calender year (Ref : MANU/SC/00408/2005 : AIR

2005 SC 3966 : (2005) 5 SCC 591 General Manager,

Haryana Roadways vs. Rudhan Singh).

(ii) If the workman has rendered considerable period of

service before his services are wrongly terminated, he may be

awarded full or partial back wages keeping in view the fact that

at his age and qualification possessed by him, he may not be in

a position to get another employment. However, where the

total length of service rendered by workman is small, the award

of back wages for the complete period i.e. from the date of

termination till the date of award which is often large, would be

wholly inappropriate.

(iii) The court also observed that other factors like the manner

and method of selection and appointment, i.e. whether it was

after proper advertisement of the vacancy or inviting

applications from the employment exchange; nature of

appointment as to whether ad hoc, short-term, daily wage,

temporary or permanent in character; any special qualification

required for the job would be weighed in taking a decision

regarding the award of back wages. (Ref.: (2005) 5 SCC 591 :

AIR 2005 SCW 4634 : MANU/SC/0408/2005 (para 8) in

General Manager, Haryana Roadways Vs. Rudhan Singh)

(iv) On the same issue, in UPSRTC Ltd. vs. Sarada Prasad

Misra (supra), the Supreme Court held that the record of the

employer reflected that the services of the respondent-workman

had never been found satisfactory. On an earlier occasion, his

services were terminated but he was taken back giving a chance

to improve. Unfortunately, the workman did not utilise the

same. The workman stood warned on several occasions prior to

the three incidents in question. In this view of the matter, the

Supreme Court held that grant of back wages to this workman

was not correct and the order of the courts below was

interferred with. Therefore the record of the employee has been

held to be a relevant factor.

(v) A very important consideration on this issue is the fact that

the employer is being compelled to pay the workman for a

period during which he contributed nothing at all, for a period

that was spent unproductively while the workman is being

compelled to go back to a situation which prevailed many years

ago when he was dismissed. On this aspect, the approach

which is required to be taken has been succinctly put by the

Supreme Court in the judgment reported at

MANU/SC/0349/2005 : AIR 2005 SC 2372 : (2005) 5 SCC

124 Allahabad Jal Sansthan vs. Daya Shanker Rai when

the court held that "no just solution can be offered but the

golden mean may be arrived at".

89. From the above discussion, so far as factors which could

govern consideration of the prayer for entitlement of back

wages, the factual scenario, the principles of justice, equity and

good conscience would guide the consideration. In the instant

case, the petitioner had rendered about thirteen years of service

upto the date of his dismissal. The defaulter sheet placed

before the court showed that there were a total of three entries

since enrolment, two of which were in the last twelve months.

Considering that a long time has lapsed between the date of his

dismissal and date of his reinstatement and also the fact that

even though the petitioner has stated that he was not

intoxicated but states that he had consumed liquor and was

roaming in civilian areas, we do not propose to award any back

wages. The petitioner shall, therefore, not be entitled to back

wages.

90. In view of the above discussion, the following directions

are made:-

(i) the impugned orders dated 17th February, 1999; 8th April,

1999 and 13th/16th August, 1999 are set aside and quashed.

(ii) the petitioner shall stand reinstated with continuity in

service; benefits of seniority and notional promotion(s) on the

date his immediate juniors were promoted and all other

consequential benefits except back wages.

(iii) Necessary orders in terms of the above shall be passed

within six weeks by the respondents.

This writ petition is allowed in the above terms.

(GITA MITTAL) JUDGE

(VIPIN SANGHI) JUDGE May 31st , 2010 aa