Pankaj Negi vs Union Of India & Anr.
2012 Latest Caselaw 3991 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Decision: 9.07.2012

+                        W.P.(C) No.1798/2000


Pankaj Negi                                      ...     Petitioner

                                 versus

Union of India & Anr.                            ...     Respondents

Advocates who appeared in this case:

For the Petitioner       :     Mr.R.P.Sharma Advocate

For Respondent           :     Mr.Ankur Chhibber Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

ANIL KUMAR, J.

*

1. The petitioner has challenged the Summary Security Force Court

trial conducted against him and his consequent dismissal from service

by order dated 28th April, 1999 and he has also sought the quashing of

the same on the ground of being unconstitutional and violative of

Articles 14 & 16 of the Constitution. The petitioner has further sought

the quashing the order in appeal passed by the respondents, dismissing

his appeal. He has in addition sought his reinstatement with full back

wages and all consequential reliefs.

2. Brief relevant facts to comprehend the dispute are that the

petitioner was enrolled with the Border Security Force at BSF STC

Bangalore and after his enrollment he completed his basic training.

Thereafter, he was posted to the unit on 18th February, 1994. The

petitioner was thereafter, posted in `A' Coy which was deployed at

Border Out Post (BOP) Govindpur.

3. On 7th September, 1998, the petitioner was on operation duty at

Gate No.16 of IBB fencing, which was the responsibility of `A' Coy. The

duty schedule of `A' Coy was from 0600 hours to 1200 hours.

4. At about 0945 hours on the same day, Inspector Murari Singh

came to the O.P and asked the petitioner whether six men had tried to

push through six heads of cattle towards Bangladesh from gate No.16.

According to the petitioner, he replied that the said cattle were grazing

at about 150 feet inside the Indian territory. Thereafter, the Inspector

ordered the petitioner and the Sentry at O.P duty to catch both the men

and their cattle. They were chased by the petitioner, however, they

still managed to enter the village and therefore could not be

caught.

5. According to the respondents, Inspector Murari Singh had rather

observed that few heads of cattle were going from the side of the village

Govindpur and heading towards the international border and were

about to reach Bangladesh through gate No.16. On seeing through his

binoculars, he saw that six heads of cattle with six persons were

rushing towards gate No.16. On realizing the seriousness of the

situation, he rushed on a motorcycle to gate No.16 and noticed that 10

cattle with 10 persons were to cross the international border (IB).

Inspector Murari Singh had asked the petitioner and Ex.Lnk Durug

Singh as to how 10 cattle had crossed through Gate No.16 and were

about to cross the international border with men. However, neither the

petitioner nor the other person could give any satisfactory reply.

Inspector Murari Singh then had ordered the petitioner to catch the six

persons running away with their cattle, however, all the six persons

took their cattle to village Govindpur and thereby could not be caught.

Inspector Murari Singh thus observed that the petitioner deliberately

showed no interest in catching the escaping cattle with smugglers and

on checking the gate register, it was also realized that no entry was

made in the register of the cattle crossing the IB through gate No.16

which is a mandatory requirement as per SOP.

6. The Company Commander also made enquiries, however, no

satisfactory replies were given. Therefore, a detailed report of the case

was forwarded to Bn.HQ. The petitioner was, thereafter, called to Bn.HQ

and an ROE vide order No.14421-24 dated 15th September, 1998 was

ordered. On completion of the ROE, the SSFC trial was held on 28th

April, 1999 which ultimately passed the sentence of dismissal of the

petitioner from service which was thereafter also confirmed by the DIG,

BSF, Calcutta on 26th July, 1999.

7. According to the petitioner, after the incident of 7th September,

1998 an order was issued on 15th September, 1998 suspending the

petitioner and his companion and after 4 days an ROE was ordered in

terms of Rule 45 of the BSF Rules on the charge under Section 40 of

the BSF Act for failing to detect 16 cattle crossing over to Bangladesh.

8. The petitioner asserted that the SSFC was ordered only after 7

months on 19th April, 1999 since the incident took place. It is

contended that rule 63 of the BSF Rules was not complied with, as

neither the charges were explained to him nor was he informed of his

legal and constitutional rights as an accused person in terms of Rule

157 of the BSF Rules and Article 21 of the Indian Constitution. The

petitioner also raised the grievance that as he was in captivity and was

located thousands of miles away from his family he could not arrange a

professional legal advisor, which gravely prejudiced him and thus he

could not properly defend himself.

9. According to the petitioner, the trial was held on 22nd April, 1999

and he had pleaded not guilty. It is also contended that the evidence

adduced before the Summary Security Force Court was not sufficient,

as there was no material evidence adduced from the record which

showed the culpability of the petitioner, however, inspite of this he was

dismissed from the service. The petitioner contended that he made an

attempt to catch the cattle and it is not that no effort was made by him

and in the circumstances the penalty of dismissal from service is too

harsh and disproportionate to the lapse attributed to him. The

petitioner further contended that he had filed a statutory appeal dated

11th October, 1999 which was also dismissed by the respondents by

order dated 2nd February, 2000. The petitioner challenged his dismissal

from service, inter-alia, on the grounds that the petitioner was charge

sheeted without any application of mind; that the petitioner and his

senior colleague ought to have been jointly charged; that the

Commander did not give adequate time and opportunity to the

petitioner to prepare his defense and that he was given charge sheet

and ROE at only about 70 hours before the commencement of the trial,

which did not leave much time to the petitioner to seek legal advice in

preparing his defense and thus the proceedings were conducted in

violation of Rule 63(4) and Rule 157 of the BSF Rules; that the

mandatory provision of Rule 45(A) of the BSF Rules was not complied

with and that the findings of the Summary Security Force are based on

no evidence as there was no mention of whether or not the cattle in

question were accompanied by any persons, which is clearly reflective of

the fact that the cattle may have just strayed into Bangladesh and also

because there is evidence that the land between gate No.16 and

Bangladesh border belongs to the Indian nationals and that at that time

the paddy crop was also in full bloom. In the circumstances, it is urged

that the cattle would not have left the green paddy fields in preference

to an unknown tract of land in Bangladesh. The petitioner contended

that he could not have been held blameworthy for failing to detect the

six cattle entering Bangladesh. The petitioner further asserted that he

could not have seen from such a far distance whether the cattle were

bulls or cows as in the charge the word used is "bulls". The petitioner

also asserted that there is no evidence to show that any order was

passed directing the BSF men not to allow Indian nationals to graze

their cattle in the said fields. The petitioner also alleged the violation of

Rule 151, as according to the petitioner his past conduct was not taken

into consideration while awarding the punishment of dismissal from

service. The petitioner has also alleged that the sentence awarded to the

petitioner, in view of the charges imputed against him, is

disproportionate to the evidence against him.

10. The writ petition is contested by the respondents by contending,

inter-alia, that the petitioner performed the duties negligently and failed

to detect 16 bulls which crossed over to Bangladesh from gate No.16 of

the IBB fencing through his area of responsibility at about 0945 hours

where he was deployed on OP Duty along with L/nk Durug Singh. The

respondent contended that the petitioner was tried by the Summary

Security Force Court and thereafter three prosecution witnesses were

examined and after considering the deposition of the prosecution

witnesses and considering the defense of the petitioner, it was found

that the petitioner was guilty of the charge and therefore, he was

dismissed from service.

11. The respondents contended that Rule 45 of the BSF Rules was

complied with and the order for record of evidence (ROE) was issued

against the petitioner only thereafter. On the basis of the record of

evidence, the decision was taken to convene the Summary Security

Force Court. The charge was properly explained to the petitioner during

the course of SSFC trial and the petitioner himself had nominated Sh.

Anil Thakur, Deputy Commandant, as "friend of the accused" and

consequently he was appointed so. The friend of the accused, Sh.Anil

Thakur, Deputy Commandant, was present during the trial of the

petitioner by the SSFC. In the circumstances, it is contended that the

plea of the petitioner that he was not rendered legal assistance is not

sustainable. The plea that the petitioner was in captivity was also

denied as he was removed from suspension with effect from 15th

December, 1998.

12. Regarding the negligence of the petitioner, it is contended that he

was posted to prevent smuggling and crime, however, he did not even

detect the presence of six cattle in the area of his responsibility which

were meant for smuggling them over to Bangladesh through gate No.16

of the IBB fencing. During the trial of the petitioner by the SSFC, the

petitioner was given an opportunity to cross examine the witnesses and

the petitioner had cross examined them. Against the order of dismissal,

the petitioner had also filed a statutory appeal which was dismissed by

the Director General after carefully considering all the pleas raised by

the petitioner.

13. Regarding the compliance of the provisions of the BSF Act and

the relevant rules, it is contended by the respondents that the trial was

in accordance with the rules and that no prejudice was caused to the

petitioner. It was further contended that the petitioner was given

sufficient time to defend himself. The respondents also categorically

denied the violation of Rule 45. According to the respondents

mandatory hearing under Rule 45 was conducted by the officiating

Commander and that there was no fatal infraction of law vitiating the

subsequent proceedings. In any case it is contended that before the

SSFC and during the SSFC proceedings no infraction was pointed out

by the petitioner of Rule 45 and, therefore, even if there was violation of

any of the rules, the SSFC proceedings will not be vitiated on account of

it. According to the respondents the deposition of Inspector Murari

Singh is sufficient to inculpate the petitioner.

14. Regarding the punishment awarded to the petitioner, the

respondents contended that the punishment is commensurate with the

gravity of the offence and the allegations leveled against him. Being a

willful associate to the smugglers while on International border duty to

prevent the smuggling, the petitioner did a shameful act against the

duty of BSF and had therefore been negligent.

15. The pleas and contentions raised by the respondents in their

counter affidavit were refuted by the petitioner who filed a rejoinder

dated 17th November, 2003 reiterating the pleas and contentions raised

in the writ petition. The petitioner also relied on Union of India & Ors. v.

B.N.Jha, 2001(58) DRJ 765; Lt.Col.Prithi Pal Singh Bedi v. Captain

Dharam Pal Kukrety, AIR 1982 SC 1413; Union of India & Anr. v. Ram

Paul 2005 (83) DRJ 718, and LPA No.409/2004, Raj Kumar v. Union of

India decided on 21st November, 2008. The learned counsel for the

respondents, however, relied on B.N.Jha, Deputy Commandant v.

Union of India & Ors., 1999(48) DRJ700, & Union of India v. Dev Singh,

(2007) 15 SCC 709 in support of the pleas and contentions raised on

behalf of the respondents.

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

and has also perused the original record of the SSFC and the ROE

produced by the respondents before this Court. Perusal of the record

reveals that in the proceedings, the defense report indicates that the

respondents had ordered ROE to be prepared by the appropriate

officers. The proceedings dated 15th September, 1998 reveals that

hearing of the charge commenced on that date at 1325 hours and in the

cyclostyled Performa in which the various columns regarding the date

on which the witnesses were heard orally by the Commandant, the

particulars of the prosecution witnesses, description of the

documentary evidence produced, and whether the accused had cross

examined the witnesses, etc. have been left blank. The said proceedings

only records that the ROE be prepared and is signed by the

Commandant. According to the learned counsel for the petitioner Rule

45 of the Border Security Force Rules, 1969 contemplates that the

charge will be heard by the Commandant and thereafter, the charge

and statements of the witnesses should be read over to the accused and

the accused should also be given an opportunity to cross examine the

witnesses and make a statement in his defense. Rule 45 of the Border

Security Force Rules, 1969 is as under:-

45. Hearing of the charge against an enrolled person.-

(1) The charge shall be heard by the Commandant of the Accused:-

(a) The charge and statements of witnesses if recorded shall be read over to the accused. If written statements of witnesses are not available, he shall hear as many witnesses as he may consider essential to enable him to determine the issue;

(b) the accused shall be given an opportunity to cross examine the witnesses and make a statement in his defence.

(2) After hearing the charge under sub-rule (1), the Commandant may:-

(i) award any of the punishments which he is empowered to award; or

(ii) dismiss the charge; or

(iii) remand the accused, for preparing a record of evidence or for preparation of an abstract of evidence against him; or

(iv) remand him for trial by a Summary Security Force Court:

Provided that, in cases where the Commandant awards more than 7 days imprisonment or detention he shall record the substance of evidence and the defence of the accused:

Provided further that he shall dismiss the charge, if in his opinion the charge is not proved or may dismiss it if he considers that because of the previous character of the accused and the nature of the charge against him it is not advisable to proceed further with it:

Provided also that, in case of all offences punishable with death a record of evidence shall be taken.

Provided further that in case of offences under Sections 14, 15, 17, 18 and offence of „murder‟ punishable under Section 46 of the Act, if the accused has absconded or deserted, the Commandant shall hear the charge in his absence and remand the case for preparation of the record of evidence.

45 A. Hearing of charge by an officer specified under Section 53 of the Act.- (1) A specified officer may proceed against an enrolled person if,-

(a) the charge can be summarily dealt with; or

(b) the case has not been reserved by the Commandant for disposal by himself; or

(c) the accused is not under arrest.

(2) After hearing the charge under sub-rule (1) of the Rule 45 the specified officer may,-

(i) award any of the punishment which he is empowered to award, or

(ii) dismiss the charge, or

(iii) refer the case to Commandant.

45 B. Hearing of charge against an officer and a subordinate officer.- (1) (a) The charge against an officer or a subordinate officer shall be heard by his Commandant: Provided that charge against a commandant, a Deputy Inspector-General or an Inspector General may be heard either by an officer commanding a Unit or Headquarters to which the accused may be posted or attached or by his Deputy Inspector-General, or his Inspector-General or, as the case may be, the Director-General.

(b) The charge sheet and statement of witnesses, if recorded and relevant documents, if any, shall be read over to the accused if he has not absconded or deserted.

Provided that where written statements of witnesses are not available, the officer, hearing the charge shall hear as many witnesses as he may consider essential to enable him to know about the case.

(c) The accused if he has not absconded or deserted shall be given an opportunity to make a statement in his defence.

(2) After hearing the charge under sub-rule (1), the officer who heard the charge may :-

(i) dismiss the charge; or

(ii) remand the accused, for preparation of a record of evidence or preparation of abstract of evidence against the accused:

Provided that he shall dismiss the charge if in his opinion the charge is not proved or may dismiss it if he considers that because of the previous character of the accused and the nature of the charge against him, it is not advisable to proceed further with it:

Provided further that in case of all offences punishable with death, a record of evidence shall be prepared.

Provided also that in case of offence under Section 14, 15, 17, 18 and offence of „murder‟ punishable under Section 46 of the Act, if the accused has absconded or deserted, the Commandant shall hear the charge in his absence and remand the case for preparation of record of evidence."

17. The learned counsel has laid great emphasis on B.N.Jha‟s case

(supra) rendered by a Division Bench of this Court which considered the

mandate of Rule 45B, 46, 48 and 51A of the Border Security Force

Rules, 1969. This Court had laid down that under Rule 45B the

Commandant ought to have heard the charge himself, as in the said

case he instead had directed another person who was directly working

under him to initiate disciplinary action against the accused. It was

held that the direction of the Commandant, Mr.Garcha, was contrary to

the mandate of Rule 45B and it was held that Rule 45B had been

violated and in the process the accused's valuable right was infringed.

This Court had further held that according to Rule 45 the Commandant

has to hear the charge and if he is not convinced, then at that very

stage he can dismiss the charge and since the Commandant did not

hear the charge, the accused was denied a valuable right which was lost

by him. In para 44 of the judgment it was held that according to Rule

45B the Commandant can direct recording of the evidence only after

hearing the accused under Rule 45B. Para 44 of the said judgment is as

under:-

"44. We have considered the rival contentions of the parties. It is not necessary to reproduce the entire evidence in this case. The learned Single Judge has correctly observed that Rule 45B has been violated. According to the said Rule the Commandant can direct recording of the evidence only after hearing the accused under Rule 45B. The entire record has been placed before us. There is nothing on record by which it can be established that Rule 45B was followed. The learned Single Judge was correct when he mentioned that a very valuable right of the respondent has been denied. Therefore, the subsequent proceedings taken under Rule

45B are also unsustainable in law."

18. The appeal filed against the judgment of the High Court was also

dismissed by the Supreme Court which is reported as Union of India vs.

B.N.Jha, JT 2003 (3) SC 201, holding that Rule 45B confers a

discretionary power upon the Commandant of the accused to discharge

not only on the ground that there does not exist any material on record

to proceed against him but also on the ground that having regard to the

previous character of the accused and the nature of charge against him

it was not advisable to proceed further in the matter. The said rule

therefore, leaves no manner of doubt that the Commandant of the

accused is required to apply his mind on the materials on record so as

to enable him to arrive at a finding in favor or against the officer. In the

said case there was no record establishing that the accused was

supplied with any material, which is the mandatory requirement under

Rule 45B. There was nothing on the record also to show that at least

the materials which were referred to by the Commandant were brought

to the notice of the accused and that he had been given an opportunity

to make a statement in his defense. There was also nothing on record to

show that even the materials in possession of the officer who had

conducted the proceedings under Rule 45B in place of Commandant

were considered independently before directing preparation of record of

evidence (ROE). Since the Single Judge and the Division Bench had

considered the material pertaining to Rule 45B of BSF Rules and came

to the conclusion that the valuable rights of the accused had been

breached, it was held that their findings could not be termed to be

perverse or contrary to law and, therefore the Supreme Court had

dismissed the appeal filed by the Union of India.

19. In Raj Kumar (supra) the allegation against a constable of the

BSF was that he had allowed the cattle to cross from India to

Bangladesh for which the charge sheet was issued to the accused

alleging that while on duty at Kanchantar BOP the constable had

shown negligence in discharge of his duties by improperly and without

authority allowing approximately 25 to 30 cattle to cross the

International Border which were headed towards Bangladesh. On the

next date the Commandant had found the constable guilty of the charge

and had sentenced him to be dismissed from service. The appeal filed

by the constable was dismissed and a writ petition filed before a Single

Judge was also dismissed. In this case the evidence was thereafter

examined by the Division Bench and the Court came to the conclusion

that though the specific charge was that the constable had allowed 25

to 30 cattle heads to cross from India to Bangladesh, but no charge of

smuggling was framed against the constable. On perusal of the

evidence, the Division Bench was of the view that the statement of

adjutant Mange Ram about cattle smugglers appeared to have been

made for the first time during the examination which clearly did not

constitute the charge against the constable and in any case the

evidence of the adjutant was held to be based on mere hearsay, as none

of the other depositions had supported his version. In the

circumstances it was held that even on preponderance of probability,

the charge could not be established against the constable and it was a

case of no evidence and consequently the punishment awarded was set

aside.

20. In Lt.Col.Prithi Pal Singh Bedi (Supra) the Supreme Court, while

dealing with Rule 22, 23 and 24 of the Army Rules, had held that the

said rules are mandatory in respect of every person subjected to the

Army Act other than an officer. The Supreme Court had held that non

compliance of mandatory Rule 22, 23 and 24 in respect of such persons

would invalidate the enquiry.

21. In Ram Paul (supra) while dealing with the Summary Court

Martial it was held by a Division Bench that the charge was not

supported by any evidence, therefore, there should have been no

conviction and that the trial of the person imputed with such charge

was without jurisdiction and thus illegal. In the said case the accused

was posted at BOP (Border Outpost) and an allegation was made

against him that while performing the duty he not only did not exercise

his authority, but he also did not prevent the smugglers from crossing

the border and go into Bangladesh and instead allowed the smugglers

to cross the border. The charged officer had pleaded not guilty and

thereafter, the record of evidence was ordered to be prepared to the two

charges which were framed against him. On the basis of record of

evidence, the competent authority had passed an order for trial of the

accused constable by Summary Security Force Court on a charge under

Section 40 of the BSF Act. Before the Summary Security Force Court

the charge against the accused constable was amended and during the

proceedings thereafter, after the chargesheet was read and explained to

the accused constable, he pleaded guilty. As the accused constable had

pleaded guilty the Commandant passed the order of conviction. The

appeal filed by the accused constable was also dismissed with a cryptic

order and against the said order in the legal proceedings it was

contended that there was non compliance of Rule 45 and that the

charge on the basis of which the petitioner was convicted and

sentenced, was passed on no evidence at all and, therefore, no sentence

could have been awarded to the petitioner. On perusal of the ROE it

had transpired that there was no reference at all, of the accused

constable accepting any illegal gratification. As there was neither any

reference nor any statement made by any of the witnesses that the

accused constable had accepted illegal gratification, in return for which

he allowed the smugglers to cross the international border, the Court

held that there was no evidence on record for substantiating the charge

of acceptance of illegal gratification and, therefore, there could not be

any such charge made out against the accused constable nor could

there be any conviction even on assuming that the petitioner had

pleaded guilty and consequently the Division Bench had set aside the

order of conviction. The order of the Division Bench was challenged in

Special Leave Petition (Civil) No.26064/2004 titled as "Union of India &

Anr v. Ram Paul" which was dismissed by the Supreme Court on 4th

January, 2005.

22. However, perusal of the ROE in the case of the petitioner reveals

that there is sufficient evidence against the petitioner for framing of the

charge. PW-1 Inspector Murari Singh had deposed that on reaching

gate No.16, 6 heads of cattle along with six persons were coming from

Govindpur Village, which were approximately 150 ft away from the said

gate. He categorically stated that the petitioner with Lance Naik Durug

Singh was standing at O.P Point. He asked the petitioner and the other

Lance Naik as to how the head of the cattle had crossed the gate,

however, the petitioner showed his ignorance. He also asked the

petitioner and the other personnel to rush behind the cattle and

apprehend them but they could not be apprehended by the petitioner.

He deposed that he had not found entry of any cattle in the register. He

also deposed that he had confronted the petitioner that if there was no

entry in the register how was there fresh footprints of the cattle,

however, the petitioner again showed his ignorance. The petitioner had

been given an opportunity to cross examine the said witness and he put

questions against him in the cross examination as well. The other

witness who was examined as PW-2 in ROE was Lance Naik Arun

Ghosh. He had also deposed about the petitioner. Similarly PW-3 Head

Constable Tej Singh had also deposed about the petitioner. Perusal of

the proceedings also reveals that the petitioner was cautioned under

Rule 48(3) of the BSF Rules and the petitioner did make a statement in

his defense. The petitioner rather stated that there were no footprints

but the company commander had told the petitioner that he was telling

a lie. The petitioner was also given an opportunity to call any other

witness in his defense, however, he did not examine any other witness.

In the circumstances, it cannot be held that there was no evidence

against the petitioner in the ROE.

23. Regarding the compliance of Rule 45, it is only revealed from the

record that the hearing of the charge commenced on 15th September,

1998 at 1325 hours. The proceeding sheet thereafter has blanks and at

the bottom it is ordered that an ROE be prepared. The offence report

shows that the petitioner pleaded not guilty and the findings of the

Commandant shows `guilty` and thereafter it contains the order that

the ROE be prepared. Perusal of Rule 45B contemplates that the charge

sheet and the statements of the witnesses, if recorded, and relevant

documents, if any, shall be read over to the accused, however, where

the written statement of the witnesses are not available to the officer

hearing the charge, then he shall hear as many witnesses as may be

considered essential to enable him to know about the case and the

accused is also given an opportunity to make a statement in his

defense. From the proceeding sheet and the offence report dated 15th

September, 1998, it does not appear that the charge sheet and

statements of witnesses were read over to the accused nor is it disclosed

if the statements of witnesses in writing were available at that time. In

the facts and circumstances, it is not clear as to on what basis the ROE

was ordered by the Commandant from the proceedings sheet and the

offence report dated 15th September, 1998.

24. Perusal of the original proceedings of the Summary Security

Force Court, however, reveals that witness PW-1 Murari Singh was

examined and he was also cross examined by the petitioner extensively.

Head constable Tej Singh, PW-2 was also examined before the

Summary Security Force Court. The petitioner was thereafter given the

opportunity to cross-examine him, however, he had declined. Instead

the Summary Security Force Court had put certain questions to the

said witness. To a question put by the Court whether the farmers were

ploughing the fields, the witness had replied that since the crop was

ripe the fields were not ploughed. Another witness which was examined

before the Summary Security Force Court was Lance Naik Arun Ghosh

as PW-3. The petitioner was given the opportunity to cross examine the

said witness but he had declined, however, the Court had put certain

questions to the said witness who, however, corroborated the statement

of PW-1 and PW-2. Another witness examined before the Summary

Security Force Court was PW-4 Constable Devinder Kumar. The

petitioner was given an opportunity to cross examine him as well but he

again had declined.

25. Before the Summary Security Force Court the petitioner had

declined to examine any of the witness in support of his defense. The

petitioner was also asked to make a statement but he had declined to

do so. On perusal of the evidence recorded before the Summary

Security Force Court it cannot be held that the petitioner was not guilty

of the charges framed against him.

26. From the perusal of the proceedings it appears that the charge

sheet and the statement of witnesses and the relevant documents were

not read over to the petitioner in violation of Rule 45B (2) as is apparent

from the proceeding sheet and the offence report as they did not

mention anything regarding the same. Along with the offence report

nothing is annexed which would show that no written statement of

witnesses was available at the time nor do the proceedings of the

offence report disclose that the Commandant had heard any witnesses

to know about the case as no such mention is made in the proceedings

of the offence report.

27. If there is a violation of Rule 45B, whether the Summary Security

Force Court proceedings shall be vitiated or not is the next question for

consideration. The learned counsel for the respondents has contended

that during the recording of the ROE the petitioner did not raise the

objection about non compliance of Rule 45B and in the Summary

Security Force Court also the petitioner did not raise the objection

about non compliance of Rule 45B and in any case before the Summary

Security Force Court he had ample opportunity to cross examine the

witnesses on the basis of whose testimony he has been held liable for

the charges framed against him. Rather, before the Summary Security

Force Court the petitioner had declined to make any statement and also

declined to produce any witnesses in support of his pleas and

contentions. The learned counsel has relied on Union of India v. Dev

Singh, (2007) 15 SCC 709, wherein the Supreme Court had held relying

on Rule 149 that if there was irregularity before the stage of initiation of

Court Martial the same will not vitiate the Court martial proceedings as

the officer had cross examined the witnesses during the Court martial

proceedings and had not raised any objection regarding non compliance

or violation of the mandatory Rule 22. It was held that if subsequent to

the proceeding under Rule 22 of the Army Rules, a regular Court

martial is held, during which proceedings the officer concerned is given

full opportunity to cross examine the witnesses who deposed against

him, then the defect of non compliance with Rule 22 would not vitiate

the Court martial proceedings and the delinquent could not complain of

any violation of statutory rules. According to the learned counsel, Rule

45B is para materia to Army Rule 22 & 23 and even if a strict

compliance of Rule 45B was not made, the petitioner ought to have

objected about it in the ROE or at least before the Summary Security

Force Court. According to the learned counsel for the respondents,

during the Summary Security Force Court the petitioner had the full

opportunity to cross examine the witnesses and in fact had cross

examined one of them while on the other hand he did not give any

statement in his own defense or examine any other witnesses in

support of his plea. Therefore, he cannot be allowed to take the plea of

Rule 45B not being strictly complied with in his case.

28. Perusal of the original proceedings under Rule 45B and thereafter

the ROE of the Summary Security Force Court has been indicated

hereinabove. It is apparent that the petitioner did not object or raise

objections regarding non compliance of the mandatory requirement of

Rule 45B. The petitioner rather cross examined the witnesses during

ROE and also deposed in support of his contentions but did not raise

any objection about non compliance of Rule 45B. The plea of the

learned counsel for the petitioner that the petitioner is not literate and

did not know the intricacies of the rules cannot be accepted in the facts

and circumstances. The plea regarding non compliance of Rule 45B was

also not categorically raised by the petitioner before the Summary

Security Force Court and, therefore, the plea of the petitioner that since

Rule 45B of the BSF Rules was not strictly complied with, therefore, the

findings of the Summary Security Force Court will be vitiated cannot be

accepted.

29. The case is also distinguishable from the case of Lt.Col.Prith Pal

Singh Bedi (Supra) relied on by the petitioner as subsequent to the

proceedings under Rule 45B, the Summary Security Force Court was

held during which the petitioner had full opportunity to cross examine

the witness who had deposed against him and, therefore, the defect, if

any, of compliance with Rule 45B would not vitiate the Summary

Security Force Court proceedings. The Supreme Court in the case of

Dev Singh (Supra) had distinguished the case of Col.Prith Pal Singh

Bedi. In Union of India v. Major A.Hussain, (1998) 1 SCC 537 wherein

also no objection was taken as to the violation of mandatory rule 22 at

the time when the Court martial proceedings were initiated, relying on

Rule 149 it was held by the Supreme Court that the irregularity, if any,

in the preliminary proceedings would not prejudice the delinquent

officer. Similarly, in the case of the petitioner irregularity, if any, in

compliance with Rule 45B will not vitiate the Summary Security Force

Court in the facts and circumstances.

30. As far as the sufficiency of the evidence before the Summary

Security Force Court is concerned, this Court in judicial review of the

decision of SSFC Court will not take over the function of SSFC Court as

the writ petition is not an appeal against the findings of SSFC nor can

this Court exercise or assume the role of the appellate authority. It

cannot differ with the findings of the fact arrived at by the SSFC except

in the cases of malafides or perversity i.e. where there is no evidence at

all to support the finding or where the finding is such that anyone

acting reasonably or with objectivity could not have arrived at the same

or where a reasonable opportunity has not been given to the accused to

defend himself or it is a case where there has been non application of

mind on the part of Summary Security Force Court. In the present case,

there was evidence before the Summary Security Force Court, however,

the sufficiency of evidence is not to be assessed by this Court. The

grounds on which the decision of the SSFC can be interfered by judicial

review are "illegality", "irrationality" and "procedural impropriety". As far

as procedural impropriety is concerned, it has already been held that on

the grounds raised by the petitioner, this Court cannot interfere. As far

as illegality or irregularity is concerned, the learned counsel for the

petitioner has failed to make out any such illegality or irregularity

which shall entail any interference by this Court. The learned counsel

for the petitioner has rather tried to emphasize that the evidence of the

witnesses cannot be relied on as from a distance it could not be

asserted whether the cattle were bulls or cows. Such pleas as has been

raised by the learned counsel for the petitioner are not sufficient to

conclude that the SSFC had left out relevant factors or had taken into

account irrelevant factors. In any case, it was for the petitioner to have

put such questions, as has been raised by the counsel for the petitioner

now, that from a distance it could not even be ascertained whether the

cattle which had crossed the gate were bulls or cows, to the witnesses

who had appeared in the ROE and thereafter in the Summary Security

Force Court. This Court as has already held that it will not re-

appreciate the evidence on the basis of the assumptions raised by the

learned counsel for the petitioner.

31. With regard to the petitioner‟s plea of disproportionate

punishment imposed on him, on carefully examining the record it is

clear that the charge framed against the petitioner is only of not

detecting 16 bulls crossing over to Bangladesh from India. Also it is

evident that even though the superior authority, Inspector Murari

Singh, who has deposed against the petitioner had detected the cattle

crossing the border over to Bangladesh, however, he too was

unsuccessful in retrieving the cattle. Moreover, there is nothing on the

record to establish that the petitioner was involved with any smugglers

or that he had accepted any illegal gratification for allowing the cattle to

cross over the international border or that he deliberately allowed the

cattle to cross over the border, nor is this the charge framed against

him. In the circumstances, the allegations proved against the petitioner

does not warrant such an extreme punishment of dismissal from service

which has been imposed on him. Even if there was failure on his part to

detect the cattle cross over the International Border, this will not reflect

extreme negligence or dereliction of duty by him. It can hardly be

disputed that the punishment of dismissal from service is the severest

punishment that could be imposed upon an employee. For imposition of

such punishment, it should be necessary that the charge is proved and

the conduct of the employee is such that it would invite imposition of

such a harsh punishment. It is not possible to evolve a straight-jacket

formula to determine the excessiveness or otherwise of the punishment

awarded, however, in the present case it is clear that the punishment is

so strikingly disproportionate, that it demands judicial interference. The

Apex Court has, however, repeatedly held that the imposition of

punishment is primarily the job of the Disciplinary Authority and in

normal circumstances even if the Tribunal or the Court comes to a

finding that the punishment imposed on a delinquent in a given case is

excessively harsh, disproportionate to the proved misconduct or is one

which shocks the conscience of the Court, it may after setting aside the

said punishment, remand back the matter to the Tribunal or to the

Disciplinary Authority for the imposition of punishment afresh. Thus,

the appropriate course of action would be to remand the matter to the

respondent authorities, in order to reconsider the quantum of

punishment imposed on the petitioner.

32. The writ petition is accordingly allowed and the order of dismissal

dated 28th April, 1999 and the order dated 2nd February, 2000

dismissing the petitioners statutory appeal are set aside. The matter is

remanded back to the respondent authorities, to impose a suitable

punishment by the competent authority, which needless to state would

be less than the penalty of dismissal already imposed or removal, and

which should commensurate with the charge framed against the

petitioner. The petitioner is permitted to appear in person before the

competent authority who would hear him on the issue of penalty and

thereafter, would pass a reasoned order justifying the quantum of

penalty imposed. The needful would be done by the respondent

authorities within a period of two month from the date of the order and

the decision will be conveyed to the petitioner. While awarding

punishment, the respondents shall take into consideration the past

record of the petitioner. The writ petition is, therefore, allowed to this

extent. The parties are however left to bear their own costs.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

JULY 9, 2012 „k‟