Ex. Ct. Mangal Singh vs Union Of India & Ors.
2012 Latest Caselaw 211 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP(C) No.3491/1999

%                       Date of Decision: 11.01.2012

Ex. Ct. Mangal Singh                                          .... Petitioner

                     Through Mr.Anil Gautam, Advocate

                                 Versus

Union of India & Ors.                                    .... Respondents

                     Through Mr.D.S.Mahendru, Advocate


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE J.R.MIDHA


ANIL KUMAR, J.

*

1. The petitioner has challenged his dismissal pursuant to being

tried by the Summary Security Force Court (hereinafter referred to as

"SSFC") at the Battalion Headquarter, 122 Bn. Border Security Force

and he has also sought his reinstatement with full back wages and

other consequential reliefs from the date of his dismissal.

2. The petitioner contended that he joined the BSF in the year 1988

and served the Force with utmost sincerity, devotion and dedication.

3. In June, 1995 the petitioner had sought leave on account of his

brother's marriage, since he was the only responsible member of his

family. He further contended he could not have kept away from the

social function as he had lost his father earlier and it was obligatory on

him to perform the marriage of his brother pursuant to many requests

made by his mother. However, the leave was denied by the authorities,

and inspite of this his brother on the instructions of his mother, had

come to take him from the Unit. Despite the petitioner making sincere

requests to the Subedar Major, the Company Commander and the Unit

Adjutant, the leave was not sanctioned. He had also sought the

interview with the Commandant so as to avail five days casual leave but

the same was denied despite the fact that he had not availed any leave

of any kind during the year 1995.

4. According to the petitioner, had he not reached for the marriage

of his brother, it would have caused a stigma on him within the social

circle of the village that he hails from, since it would have sent the

message that he had deliberately shirked his responsibilities,

particularly in view of the fact that his father had passed away earlier..

Since despite the earnest requests made to all the concerned

authorities, he was not granted leave, he requested for an interview with

the DIG who was on a visit to the Unit. However, even the DIG denied

the interview and consequently in utter frustration, being left with no

option, the petitioner had to leave his Unit on 2nd June, 1995 after

leaving an application with the Unit authorities.

5. The petitioner contended that he had every intention to report

back to the Unit after his brother's marriage, but unfortunately on 6th

June, 1995 his son, Deepak Kumar, aged about 8 years, met with a

serious road accident and was hospitalized. He had suffered severe

head injuries and multiple fractures on the skull and he remained

under coma for many days while hanging between life and death for

almost two months. His son was admitted in the Govt. Primary Health

Centre, Kadama (Bhiwani) w.e.f. 6th June, 1995 up to 8th August, 1995.

6. The plea of the petitioner is that though his son had not

recovered fully by 8th August, 1995, however, as soon as he was

discharged from the hospital and was out of danger, the petitioner left

for his Unit and reported on 13th August, 1995 and he also submitted

the relevant medical documents with the Unit authorities. According to

him, it would have been inhuman for him to have left his son to die, so

that he could join the duty earlier.

7. On 14th August, 1995, a ROE was ordered without issuing any

charge sheet. He contended that no hearing was conducted in terms of

BSF Rule 45, which is mandatory in nature. Thereafter, on 4th

September, 1995, the Commandant tried the petitioner by a SSFC and

dismissed him from the service. The petitioner further pleaded that on

realizing that the hearing in terms of Rule 45 had not been done, the

Commandant on 3rd September, 1995 prepared a fake certificate for the

hearing of the charge on the said date itself, in order to meet the

requirements of the circular of the Law Directorate pertaining to the

hearing of the charge. The petitioner asserted that since an ROE had

already been ordered and was completed on 11th August, 1995,

therefore, the said ROE having been conducted without a preliminary

hearing under Rule 45 is void ab-initio and consequently the

subsequent SSFC trial based on the said ROE is also vitiated.

8. The petitioner also challenged his dismissal on the ground that

the Commandant committed the legal error in not making a reference to

the concerned Govt. Medical Officer as required by the BSF Act, under

Section 97 and hence in the absence of such a reference, the SSFC trial

is illegal. The punishment of dismissal from the service was also

challenged on the ground that it is disproportionate to the lapse on his

part. The petitioner also submitted a statutory petition to the Director

General, BSF, on 6th July, 1997 however, the petition was turned down

by a non-speaking order dated 3/4th October, 1997. The petitioner

made another representation to the Central Govt. on 11th March, 1998

seeking an annulment of the SSFC trial proceedings, however, despite

repeated reminders, the representation has not been decided till now.

Aggrieved by the orders of the respondents, the petitioner has filed the

above noted writ petition.

9. The petition is contested by the respondents by filing a counter

affidavit dated 2nd May, 2000 contending, inter-alia that the petitioner

was enrolled w.e.f. 29th September, 1988 and was dismissed from

service w.e.f. 4th September, 1995 by the SSFC for an offence under

Section 19(a) of the Border Security Force Act. The respondents

disclosed that during the short service of the petitioner with the Border

Security Force, he was awarded four punishments before his dismissal

from the service.

10. The respondents disclosed that the petitioner had over stayed the

leave granted to him from 3rd May, 1989 to 22nd May, 1989 without

sufficient cause. At the time, for over staying for two days, as he had

rejoined only on 24th May, 1989, he had been awarded 14 days of

rigorous imprisonment in force custody on 6th June, 1989.

11. During the year 1989, again the petitioner had been granted 45

days earned leave w.e.f. 10th July, 1989 to 23rd August, 1989 due to the

death of his father. The petitioner had managed to extend his leave by

15 days on the plea that his mother had died while he was serving in

the 82 Bn. BSF. However, when the matter was verified through the

Police and SP Bhiwani, the concerned police authorities had intimated

by letter No.11245 dated 20th September, 1989 that both the parents of

the petitioner were alive. Consequently, the CTC issued a letter dated

7th November, 1989 to the petitioner, warning him not to make such

false claims in the future.

12. The petitioner again absented himself without leave from 1200

hours on 18th March, 1992 till 1935 hours on 27th March, 1992. For

this unauthorized leave, under Section 19(a) of the BSF Act the

petitioner was awarded 7 days rigorous imprisonment in force custody

on 28th April, 1992. Thereafter the petitioner had been granted one

day's casual leave on 10th June, 1992, however, the petitioner failed to

rejoin after the one day's casual leave and voluntarily joined only on

21st August, 1992, after an unauthorized absence of 71 days, for which

the petitioner was awarded 28 days of rigorous imprisonment in force

custody on 26th November, 1992.

13. The petitioner again committed the breach of Section 19(a) of the

BSF Act by absenting himself without leave from 29th January, 1995 to

18th March, 1995 i.e. 49 days for which he had been awarded 14 days

of rigorous imprisonment in force custody on 10th May, 1995.

14. Thereafter, the petitioner yet again committed the violation of

Section 19(a) of the BSF Act, by absenting himself without leave on 2nd

June, 1995 from Bn. Headquarter, Magra, Barmer (Rajasthan) till 13th

August, 1995 for a total of 71 days. For this, the petitioner was tried by

the SSFC and dismissed from service w.e.f. 4th September, 1995.

Relying on the above noted pleas and contentions, the respondents

have contended that the petitioner had not served in the force with

sincerity and devotion as has been falsely alleged by him.

15. The respondents also refuted the plea of the petitioner that his

request for casual leave was not considered. It is contended that

Commandant had assured that the request of the petitioner for five

days casual leave would be considered, however, before the leave could

be granted, the petitioner left the Unit which he could not do and which

cannot be allowed as a member of the discipline force of the country.

Thus it is contended that this act on the part of the petitioner,

tantamounts to insubordination and extreme indiscipline.

16. The allegations of the petitioner that the petitioner had requested

for an interview with the DIG and that he had applied for discharged

were also denied by the respondents. The respondents contended that

though the petitioner had sent an application from his home stating

that his son had met with an accident, however, no supporting

documents were sent, nor was the date on which the son of the

petitioner allegedly met with an accident mentioned. Since the

petitioner had already absented himself without leave, a number of

times prior to this incident, his case for grant of leave was not

considered. Even after reporting to the Unit on 13th August, 1995, the

petitioner had not mentioned about the illness of his son, nor had he

produced any medical documents relating to his illness.

17. The plea of the respondents is that the petitioner was produced

before the Commandant on 14th August, 1995 and that he had not

pleaded guilty of the charge and accordingly, an ROE was ordered. In

this manner Rule 45 of the BSF Rules was complied with and the ROE

was ordered after proper hearing of the charge against the petitioner.

The allegation that a fake certificate dated 3rd September, 1995 was

prepared was also denied. The respondents further asserted that a

hearing was done on 14th August, 1995 and that the date on the

certificate as 3rd September, 1995 is an inadvertent mistake as in the

certificate itself the date of hearing has been mentioned as 14th August,

1995. The respondents also denied that the issuance of certificate is a

requirement under Rule 45 of the BSF Rules. The respondents

produced the copy of the offence report which was signed on 14th

August, 1995, showing that the petitioner was heard on the said date

and that the date as 3rd September, 1995 was an inadvertent mistake

and is not on account of any forgery or manipulation.

18. Regarding the seven witnesses examined during the ROE and 2

witnesses recorded during the SSFC, it is contended that only the

relevant/initial witnesses had been examined in the SSFC trial. The

petitioner had declined to call any witness in his defense and by

referring to Section 97 of the BSF Act, it was asserted that there was no

question of making a reference to the Govt. Medical Officer. It was also

contended that the petitioner never made any reference about the Govt.

Medical Officer during his trial by the SSFC, nor had the petitioner

produced any documents regarding the illness of his son on 13th

August, 1995, nor had the petitioner sent any documents along with his

application. Considering that the petitioner is a habitual offender, it is

contended that the punishment of dismissal from service cannot be

termed as disproportionate.

19. The respondents also disclosed that the undated application was

received from the petitioner requesting for a copy of the SSFC trial

proceedings on 31st March, 1997 and consequent thereto a copy of the

SSFC trial proceedings had been handed over to the petitioner by the

Law Branch by the letter dated 1/ 2 April, 1999. The petition of the

petitioner was also considered by the Director General and was rejected

as being devoid of any merit. Regarding the representation made to the

concerned Ministry, it has been contended that no such representation

was received by the Ministry of Home Affairs.

20. The petitioner filed a rejoinder dated 17th April, 2001 denying the

pleas and contentions raised by the respondents in their counter

affidavit. However, he did not produce any documents to substantiate

his pleas and contentions. The petitioner also did not produce any

documents to show that any medical documents were sent by the

petitioner along with his application, nor was anything produced to

show that the said documents were handed over on 13th August, 1995.

21. The learned counsel for the petitioner in support of his pleas and

contentions has also relied on a decision of this Court in Shri Bhagwan

Lal Arya v. Commissioner of Police, Delhi & Others, (2004) 4 SCC 560

and Ex. Constable Driver Bhagirath Singh v. Union of India, Ministry of

Home Affairs,122 (2005) DLT 134 (DB).

22. This Court has heard the learned counsel for the parties in detail.

In the writ petition filed by the petitioner, no particulars have been

given by the petitioner that he has been wrongly punished for breaching

the Section 19(a) & (b) of the BSF Act, on earlier occasions. Rather what

is contended is that the petitioner had served the force with utmost

devotion and merit. Learned counsel for the petitioner has not been able

to refute the fact that the petitioner had been punished on various

occasions on account of over staying on leave and absenting without

authorization. No cogent reason is given for not disclosing the previous

punishments on account of his absence without leave and over staying

the leave granted to him, without sufficient cause, which particulars

were relevant to the facts in the writ petition. Though the writ petition is

supported by an affidavit verifying that nothing material has been

concealed, however, in the facts and circumstances not disclosing the

earlier punishments granted to the petitioner on account of absenting

himself without leave and not disclosing the details about over staying

the leave granted to him, without sufficient cause, can be construed as

not disclosing relevant facts. These facts would be relevant as the

petitioner has contended that his dismissal from the Border Security

Force on account of 71 days of absence without leave is

disproportionate. The respondents have contended that the petitioner is

a habitual defaulter and had repeatedly committed the offences under

Section 19(a) & (b) of the BSF Act, 1968. In view of the totality of the

facts and circumstances, the plea of the petitioner that the punishment

of the dismissal is disproportionate cannot be accepted.

23. The precedents relied on by the petitioner are also distinguishable

and the ratio laid down therein do not support the case of the

petitioner. In Bhagwan Lal Arya, (supra) a police constable in the Delhi

Police, while undergoing the prescribed training, had fallen on the

parade ground. Thereafter, he was sent to the police dispensary as

ordered by the Chief Drill Inspector of the parade. As his condition had

not improved, his relatives had taken him to his home town in Gwalior,

where he remained under treatment of the Govt. Doctor and he had also

sent applications for leave on medical grounds supported with the

medical certificates from the competent medical authorities in

accordance with the leave rules. The competent police authorities had

also passed an order sanctioning leave without pay for the period of his

illness from 7th October, 1994 to 14th December, 1994 as no other leave

was due to him. The police constable was, however, issued a charge

sheet alleging unauthorized absence for the same period and later on

the notice of termination from service was issued. In the circumstances,

the punishment of dismissal was found to be disproportionate to the

previous misconduct as the constable had absented himself for two

months and 7 days on medical grounds. It was held that the absence of

the petitioner on medical ground with application for leave as well as

sanction of leave could not be termed as grave misconduct or continued

misconduct rendering him unfit for the police service. In

contradistinction, in the present matter the petitioner is in the habit of

absenting himself without leave and over staying the leave granted to

him without sufficient cause for which he has been punished repeatedly

on many occasions. Those proceedings have become final. There are no

mitigating circumstances in the case of the petitioner, and therefore, he

cannot rely on the ratio of the Bhagwan Lal Arya (supra).

24. The petitioner has failed to produce any documents on the basis

of which it can be inferred that the petitioner had sent the outdoor

ticket of the dispensary pursuant to his son Deepak Kumar, being

admitted in the hospital, along with his application or that he had

submitted the copy of the same when the petitioner had joined the duty

after the unauthorized absence of 71 days on 13th August, 1995. The

medical certificate of Deepak Kumar produced by the petitioner along

with the writ petition also does not inspire confidence and is contrary to

the averments made by the petitioner. The petitioner has contended

that his son had suffered severe head injuries and that he was hanging

between life and death between the period 6th June, 1995 to 8th August,

1995. However, the certificate produced by the petitioner merely states

that his son was admitted to the hospital for the stipulated period but

does not specify that it was a matter of life and death or that he was in

coma at the time. The certificate, however, produced by the petitioner is

of a dispensary and the son of the petitioner is merely an out patient.

Learned counsel for the respondents has contended that the medicines

disclosed in the certificate are also not such which are administered to

a person who had suffered severe head injuries and multiple fractures.

Though the disease has been mentioned as "head injuries and multiple

fractures", however, there is no history of any head injuries nor is there

a mention of the treatment that was given for the head injuries or

multiple fractures suffered by the petitioner's son, in the outdoor ticket

produced by the petitioner. In the circumstances, the fact that the

petitioner had remained absent without leave on account of the illness

of his son, has not been substantiated before the respondents. The

stand of the respondents cannot be considered to be unreasonable nor

can their decision be faulted in the facts and circumstances.

25. The plea of the petitioner that he was not heard by the

Commandant in terms of Rule 45 of the BSF Act, 1969 also cannot be

accepted on the basis of the allegations made by the petitioner. It also

cannot be inferred that a false certificate was issued on 3rd September,

1995. The respondents have produced the offence report dated 14th

August, 1995 disclosing that the petitioner was heard in the first

instance by the Commandant. Sh.B.S.Rana, who then issued the

certificate dated 14th August, 1995 after hearing the petitioner and

directed that the matter be tried by a Summary Security Force Court. In

the circumstances, it cannot be held that no hearing was given to the

petitioner on 14th August, 1995. The date of 3rd September, 1995

appears to be an inadvertent mistake as has also been contended by the

respondents in their counter affidavit dated 3rd July, 2000.

26. Learned counsel for the petitioner has also relied on, Ex.Ct.

Driver Sh.Bhagirath (supra) in support of the pleas and contentions of

the petitioner. Perusal of the said precedent, however, reveals that the

ratio is distinguishable and cannot be applied in the case of the

petitioner. In the instant case relied on by the petitioner, the constable

was tried under Section 19(a) of the BSF Act, and awarded 14 days of

rigorous imprisonment in force custody. Thereafter he was sent to the

quarter guard, but he refused to eat and consequently, he was charged

under Section 40 of the BSF Act by the Summary Security Force Court

and thereby sentenced to dismissal from service. In the instant case,

the order of the dismissal from service was set aside and it was held

that the dismissal from service was disproportionate to the offence for

which the petitioner was charged relying on the decision of the Supreme

Court in the case Ranjit Thakur v. Union of India, AIR 1987 SC 2386.

The case of the petitioner is apparently distinguishable as he has been

punished four times before his dismissal from the service on account of

his absence without leave and over staying without sufficient cause.

27. In the circumstances, it cannot be held that the punishment of

dismissal from service imposed on the petitioner by the SSFC is

disproportionate, nor has the learned counsel for the petitioner been

able to make out any such illegality, irregularity or perversity in the

actions of the respondents which shall entail any interference by this

Court in exercise of its jurisdiction under Article 226 of the Constitution

of India. The writ petition is therefore, without any merit and it is

dismissed. Parties are however, left to bear their own costs.

ANIL KUMAR, J.

J.R.MIDHA, J.

January 11, 2012 vk