Karambir Singh vs Uoi & Ors
2012 Latest Caselaw 4451 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment Reserved on: July 24, 2012
                     Judgment Pronounced on: July 27, 2012

+                      W.P.(C) 4104/1999

      KARAMBIR SINGH                              ..... Petitioner
               Represented by: Mr.Awadhesh Kumar, Advocate
                               with petitioner in person.

                  versus

      UOI & ORS                              .....Respondents
                  Represented by: Mr.Ruchir Mishra, Advocate
                                  with Dy.Cmdt.Bhupinder Sharma,
                                  Law Officer, BSF.

      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG, J.

1. The petitioner has prayed that order dated January 29, 1998 passed by the Commandant 12th Bn. BSF, as the Presiding Officer of the Summary Security Force Court be set aside and further order dated April 05, 1999 accepting petitioner's alleged resignation be also set aside.

2. We note that vide order dated January 29, 1998 passed by the SSF Court, being found guilty of the charge of acting rashly and negligently so as to endanger human life, the petitioner has been sentenced to undergo 89 days imprisonment in force custody.

3. We may note that at the trial the petitioner pleaded guilty but at the stage of Record of Evidence after he was issued the charge as per Rule 45 of the BSF Rules, he had participated in the proceedings and had cross-examined the witnesses

examined and had also made a statement in defence.

4. The petitioner did not dispute that on September 15, 1997 he was performing duties at OP Tower No.2 at the Line of Control between India and Pakistan in the Northern Sector in Punjab and that at 16:20 hours he had an altercation with S.Dhanwant Singh and two shots were fired from the SLR issued to him.

5. What happened at the spot? Counsel for the petitioner concedes, is best described in the words of Ct.Gautam Mukherjee, PW-1, for the reason the petitioner and S.Dhanwant Singh would obviously state twisted version. As deposed to by Ct.Gautam Mukherjee, he i.e. Gautam Mukherjee and the petitioner were on duty at the border out-post and at around 16:20 hours S.Dhanwant Singh came near the border fence with 15-20 buffalos. While grazing, the buffalos scattered and went out of control of S.Dhanwant Singh, at which petitioner told S.Dhanwant Singh that if being an old man he could not control his cattle he should not bring the cattle for grazing, much less near the border fence, to which S.Dhanwant Singh replied that the land on which the cattle was grazing was his. Petitioner responded that so what, the fence belonged to BSF. The verbal duel between the two, starting with an innocent exchange of dialogue, turned acerbic and therefrom to a physical confrontation when S.Dhanwant Singh attempted to snatch the Self Loading Rifle from the petitioner, and upon being unsuccessful, pulled out a kirpan; with the petitioner reacting by corking his Self Loading Rifle. S.Dhanwant Singh tried to snatch the rifle. Two shots were fired, and probably one of which hit a buffalo grazing nearby. As recorded during Record of Evidence, the petitioner did not cross-examine Ct.Gautam Mukherjee by

stating that he was not cross-examining Ct.Gautam Mukherjee because Ct.Gautam Mukherjee had told the truth.

6. The first submission therefore advanced before us at the hearing of the writ petition was that the petitioner acted in self defence.

7. Now, it is indeed a problem at the Line of Control at the Indo-Pak border and especially in the State of Punjab where agricultural fields touch the Line of Control; and on which Line a fence has been erected. The villagers feel that since the land belongs to them, they are entitled to lead their cattle, for grazing, upto the fence; fodder is scarce. The BSF jawans are always on the tenterhooks for the reason there is always a threat of infiltration and thus it is but natural that skirmishes would take place.

8. We do not have the age of S.Dhanwant Singh, but he has been referred to as an old man by Ct.Gautam Mukherjee. The petitioner was carrying a dangerous weapon with him; a Self Loading Rifle. In a dialogue with an old man, and especially when the dialogue turned acrimonious, the petitioner ought to have maintained a safe distance and not indulged in a physical scuffle over something which was fairly trifling. After all, S.Dhanwant Singh was an old man and was unarmed; the kirpan being a religious object with S.Dhanwant Singh. The petitioner ought not to have cocked the rifle because he knew, by training, that once the rifle was brought in the cocked position the only intervening act resulting in firing was the trigger being pulled. If S.Dhanwant Singh was acting unreasonably by drawing out his kirpan, the petitioner, having the age advantage and hence the strength advantage, could have well used the Self Loading Rifle as an object to defend himself, if S.Dhanwant Singh attacked

him, and in an extreme situation could have used the same as a club. He certainly reacted beyond reasonable degree of self defence when he uncocked his Self Loading Rifle.

9. It was an unfortunate incident and for which we even blame the BSF Authorities, because we find that in a large number of cases, of the kind, brought before us involving BSF force personnel and civilians, we always find young jawans of BSF, who are matriculates and come from a rural background. These young lads lack the maturity, as they are yet to be tempered by the rigours of life. They act immature and rashly. Regretfully, we find no counseling done.

10. But, on the facts of the instant case, we do find that the petitioner could have averted the situation and not permitted the same to aggravate. We do not intend to discuss much further on the subject, because ultimately what would determine petitioner's fate would be the second challenge i.e. whether the order accepting petitioner's resignation needs to be set aside.

11. As per the petitioner, after he completed the 89 days force detention, he received a telephonic message on April 02, 1999 that his brother-in-law had expired. He sought for leave which was declined. He was assaulted. Petitioner claims that he was forced to write the alleged resignation letter which was accepted by the Commandant.

12. We had perused the original letter of resignation which is hand-written by the petitioner himself.

13. The record produced before us reveals that after he was sentenced to undergo rigorous imprisonment in force custody for 89 days on January 29, 1998, the attitude of the petitioner hardened. Completing the sentence, he refused to

perform duties and for which he was sentenced to undergo rigorous imprisonment for 14 days in force custody on April 29, 1998. He refused to obey lawful orders i.e. perform duties for which he was once again sentenced to undergo rigorous imprisonment in force custody for 14 days on June 10, 1998.

14. As per the respondents, since the petitioner was in conflict with his superior officers, he was transferred from the 12th Bn. which was at the Line of Control in Punjab to the 63rd Bn. which was at the Line of Control in Rajasthan in July 1998 and was immediately sanctioned 60 days leave from July 15, 1998 to September 12, 1998. Returning from leave, the petitioner refused to perform duties in which he had to handle arms and repeatedly stated that he was wrongly punished for handling an arm when posted in Punjab. Refusing to perform sentry duty on January 18, 1999 because that would have meant the petitioner carrying an arm, he was awarded 28 days rigorous imprisonment in force custody on January 23, 1999. The Commandant of the Unit as also DIG, BSF tried to see reason with the petitioner on March 28, 1999. He stubbornly refused to perform any duty which would require him to carry an arm.

15. Now, we see no reason for any officer to compel the petitioner and force him to submit a letter of resignation. The circumstances enwombing the letter in question mitigate it being the result of coercion or a threat and lean in favour of the petitioner voluntarily submitting the same, may be it became his compulsion.

16. Facts noted by us bring out that after he was sentenced to undergo rigorous imprisonment 89 days in force custody for the incident which took place on September 15, 1997, the petitioner had a firm belief that he was wronged. His

attitude hardened. He refused to perform duties which required him to carry an arm. He was twice penalized for refusing to execute lawful commands at his battalion i.e. the 12 th Bn. The authorities rightly transferred him to the 63rd Bn., hoping that a change in environment and the faces he would see, would make a difference. To comfort the petitioner, he was sanctioned 60 days leave with the hope that spending time with the family would soothen his hurt pride. Alas! It was not to be so. Returning to the 63rd Bn., the petitioner refused to perform any duty which required him to carry an arm. He was counseled by the Commandant and the DIG of the range. Even at the 63rd Bn. he had to be punished for refusing to obey lawful command. It appears to be a case where the petitioner had led himself into a situation where he realized that he could no longer serve and thus he submitted the letter of resignation.

17. The argument that the Commandant accepted the letter post haste and therefore the Court should infer some participative act by the Commandant, which according to the petitioner would obviously be : the Commandant compelling the petitioner to submit the letter of resignation, is rejected by us for the reason we have evidence that the petitioner had made a virtual nuisance of himself and thus when he submitted the letter of resignation, the department thought it fit to accept the same immediately and close the chapter. We have an intrinsic evidence of the Commandant of the 63rd Bn. not having any animous against the petitioner; and rather having a fatherly figure attitude towards the petitioner, from the fact that not only he counseled the petitioner but even facilitated a meeting between the petitioner and the DIG of the range.

18. Since we find no merit in the plea urged by the

petitioner that he was forced to submit the letter of resignation, it would be futile for us to discuss in detail whether the penalty imposed upon the petitioner to undergo 89 days rigorous imprisonment in force custody is justified or not for the reason it would make no difference.

19. The writ petition is dismissed but without any order as to costs.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE JULY 27, 2012 KA