Delhi High Court
Sher Singh vs Uoi & Ors on 5 September, 2011
Author: Pradeep Nandrajog
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order : September 05, 2011
+ W.P.(C) 6988/2001
SHER SINGH ..... Petitioner
Through: Mr.Sanjoy Ghose and
Mohd.Farrukh, Advocates
versus
UOI & ORS ..... Respondents
Through: Mr.Bhupinder Sharma,
Dy.Comdt. for respondents.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. Heard learned counsel for the petitioner and perused the
record.
2. Of the various averments made in the writ petition and
grounds urged in support of the prayer, learned counsel urges
that there is no evidence to sustain the first and second charge.
Counsel highlights that 5 witnesses of the prosecution have
deposed only with respect to Charge No.III.
3. Counsel urges that the verdict of guilt at the Summary
Security Force Court Trial returns petitioner guilty of all 3
charges and penalty imposed is of dismissal from service. It is
urged that the penalty has to be set aside for the reason it is
premised as if petitioner is guilty of all 3 charges.
4. Alternate submission made is that if all 3 charges stand
proved, penalty of dismissal from service is disproportionate to
the gravity of offences.
5. 3 charges on which the petitioner was tried at the
Summary Security Force Court Trial reads as under:-
"The accused No.89401396 Const.Sher Singh of „C‟ Coy.5
Bn BSF is charged with:-
IST CHARGE DISOBEYING IN SUCH MANNER AS TO
BSF ACR SHOW A WILFUL DEFIANCE OF
SECTION 21(1) AUTHORITY, A LAWFUL COMMAND GIVEN
PERONALLY BY HIS SUPERIOR OFFICER IN
THE EXECUTION OF HIS OFFICE.
in that he,
while undergoing 14 days RI given by Shri
N.D.Bahuguna, Offg.Comdt, 5 Bn BSF on
31.12.99 for having committed an offence
of absenting himself without leave
punishable U/S 19(a) of the BSF Act, on
1.1.2000 when ordered by No.85102980
HC V.B.Karjagi, duty NCO of that day, to
carry out pack drill, denied saying "MAIN
ISS SAJJA KO NAHIN MANTA AUR PACK
DRILL NAHIN TAHLUNGA" and words to
this effect, and did not carry out the pack
drill and thereby disobeyed the orders
given by his superior officer.
IIND CHARGE DISOBEYING IN SUCH MANNER AS TO
BSF ACT SHOW A WILFUL DEFIANCE OF
SEC-21(1) AUTHORITY, A LAWFUL COMMAND GIVEN
PERSONALLY BY HIS SUPERIOR OFFICER
IN THE EXECUTION OF HIS OFFICE
in that he,
on being released from the Quarter Guard
on completion of 14 days RI given to him,
when ordered by No.75001299 HC Ram
Pal Singh on 14.1.2000 to take his
uniform belt and cap, arrogantly refused
to take over his belt and cap.
III RD CHARGE ABSENTING HIMSELF WITHOUT LEAVE
BSF ACT
SEC-19(A) in that he,
at Bn HQ (Sunderbani), J&K on 26.3.2000
absented himself without leave and
reported voluntarily on 22.6.2000 (AN).
Total period of absence w.e.f. 26.3.2000
to 22.6.2000 (AN) for 89 days.
(D.S.RATHORE)
COMMANDANT
5th Bn. B.S.F.
6. The original record of the trial produced would reveal
that SI/RM Joginder Ram PW-1, HC Ranbir Singh PW-2, HC
V.B.Karjagi PW-3 and SI S.D.Sharma PW-4 deposed with
respect to Article I of the charge. The testimony
establishes that while undergoing 14 days RI, required to
carry out pack drill, petitioner refused saying that he does
not accept the punishment.
7. Pertaining to the second charge, HC Ram Pal Singh
PW-1, Ct.P.K.Hazarika PW-2, Shri N.D.Bahuguna PW-3
deposed with respect to Charge No.II and their evidences
establish that the petitioner refused to take his uniform
belt and cap after he completed 14 days RI and the refusal
was in an arrogant manner.
8. Record further shows that HC Dalip Singh PW-1,
Ct.Rajinder Narjary PW-2, SI Sangram Singh PW-3,
Ct.Krishan Lal PW-4 and SI S.D.Sharma PW-5 have deposed
with respect to the 3rd charge and we highlight that their
testimony establishes that the petitioner had absented
himself without leave as alleged as per the 3rd charge.
9. Thus, the argument that the first 2 charges have
been held established without any evidence is incorrect.
10. It appears that the basis of the plea is the
Commandant of the Unit who acted as the Court, listing
the various prosecution witnesses as PW-1 onwards
separately for each charge.
11. On the issue of the proportionality of the sentence,
record shows that this was not the first misdemeanor
which was detected.
12. The petitioner had 11 years service and was
penalized twice. Once for unauthorisedly possessing 8
bottles of rum for which 14 days RI was inflicted on
22.10.1991. Second punishment was for being
unauthorized absence for 9 days and for which 7 days
extra duty as a penalty was inflicted apart from 14 days RI.
13. Record shows that on 3 occasions petitioner‟s
unauthorized absence was condoned and regularised.
14. ACR record of the petitioner is also not very healthy.
An adverse remark has been entered for the year 1997
that petitioner was careless, talkative, disobedient and a
habitual drinker, and that except for drawing salary he had
no inclination to work. For the year 2000, the adverse
entry recorded is that the petitioner is a disobedient
soldier. He does not obey the command of the seniors and
enters into a verbal quarrel. He is a habitual drinker and
was not recommended for promotion.
15. It is settled law that past conduct can always be
considered on the issue of proportionality of the penalty
imposed.
16. At this stage, learned counsel for the petitioner prays
that since the petitioner has a family consisting of 3 minor
children, notwithstanding penalty of dismissal from service
being inflicted, it may be directed that in terms of Rule 41
of the CCS (Pension) Rules, a compassionate allowance be
sanctioned and be paid to the petitioner.
17. We note that as per the mandate of Rule 24 of the
CCS (Pension) Rules, dismissal or removal of a government
servant from service or post entails forfeiture of past
service, and so is the mandate of sub-rule 1 of Rule 41, but
the proviso thereof empowers the Competent Authority,
who has dismissed or removed from service a government
servant may sanction a compensation pension.
18. While dismissing the writ petition without any order
as to costs, we observe that if the petitioner makes a
representation to the Competent Authority who has
dismissed the petitioner from service, the authority
concerned would consider the request in terms of the
proviso to sub-rule 1 of Rule 41 of the CCS (Pension) Rules
and if it is opined that it is a deserving case or there are
special circumstances, i.e. a case is made out within the
proviso to sub-rule 1 of Rule 41 of CCS (Pension) Rules,
compensation pension would be disbursed.
19. If the petitioner were to make a representation as
aforesaid, necessary decision would be taken and
conveyed to the petitioner within 6 weeks and if request is
accepted, compensation pension would be disbursed as
per the Rules.
20. Noting the facts herein above, we see no scope to
mitigate the quantum of penalty and thus we dismiss the
writ petition but refrain from imposing costs.
PRADEEP NANDRAJOG,J
SUNIL GAUR, J
SEPTEMBER 05, 2011
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