Delhi High Court
Bhupender Singh vs Union Of India & Anr. on 25 August, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 25.08.2014
+ WP (C) No.504 of 2013 & CM No.966 of 2013
BHUPENDER SINGH ...... Petitioner
Through: Mr. Surender Singh Hooda, Adv.
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr. Manish Mohan, CGSC with
Ms. Manisha Rana, Adv.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. In this writ petition under Article 226 of the Constitution of India, the
petitioner seeks quashing and setting aside of the finding and sentence
awarded by the Summary Security Force Court on 21.4.2012. He also
seeks setting aside of the order dated 15.11.2012, whereby the statutory
appeal of the petitioner was rejected. The petitioner also seeks a writ of
mandamus, directing the respondent No.2 to reinstate him in service
with all consequential benefits from the date of his dismissal.
2. The petitioner‟s case is that he was on Sentry duty/Observation Post
duty on the Indo-Bangladesh Border on 9.4.2012 at Gate No.43 of BOP
Hamjapur from 0600 hours to 1200 hours along with Constable Surender
Sahu. The Gate Commander was one HC Ashok Kumar whose duty
was from 0700 hours to 1713 hours. After completion of his duty, the
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petitioner was relieved by the new OP party comprising of HC
Kalpathnath Ram and Constable Santosh Kumar, who took over the
charge at 1200 hours. Allegedly, HC Kalpathnath Ram and the Gate
Commander HC Ashok Kumar noticed some suspicious movement of
persons at about 1205 hours, approximately 100 meters beyond the fence
of Gate No.43 towards the Indo-Bangladesh Border. Upon searching the
area, they allegedly found 10-12 bags containing tractor spare parts but
the persons carrying them had run away into the Bangladesh territory.
The Seizure Memo dated 9.4.2012 addressed to the Superintendent/OC,
Balurghat Customs P.U. records the incident as under:
"On 9.4.2012 about 1205 hours the Gate Commander
and OP party of BOP Hamjapur while on Gate duty
observed suspicious movement of unknown persons
going towards IB from India to Bangladesh. On being
challenged, the miscreants ran away leaving behind
their goods and managed to escape/cross over to
Bangladesh for taking shelter. The search party
recovered the unclaimed items."
3. Two days later, an FIR was lodged on 11.4.2012 which too mentions the
time of the incident as 1205 hours. The FIR neither names the petitioner
nor does it allude any charge against him apropos the aforesaid incident
of persons running away across the Indo-Bangladesh Border. The
Company Commander‟s subsequent report five days later, on 12.4.2012
recording the incident, for the first time, suggests the involvement of the
petitioner along with Constable Surender Sahu. It was imputed that the
alleged smuggling could have been carried out either by throwing the
bags over or taking them through the gate with the connivance of the
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"outmen", the OP party. However, in the same breath, the report also
records that there was no damage to the Indo-Bangladesh Border Fence
(IBBF). The Summary Security Force Court trial was held under
Section 40 of the BSF Act, 1968. The petitioner was arrested under
Rule 38 of the BSF Rules, 1969 vide order dated 20.4.2012.
4. The charge sheet against the petitioner reads as under:
"On 9th April 2012 in between 09:30 hours to 11:50
hours while performing OP duty in area between BP
No.318-3/S and 318-2/K in the area of responsibility of
BOP Hamjapur from 06:00 hours to 12:00 hours
impro helped smugglers to smuggle contraband items
i.e. Motor parts weighing 190 kgs through IBBF Gate
No.43 of the BOP Hamjapur by unauthorisedly
opening the gate and without making proper entries in
the gate in out register."
5. The petitioner argues that he was not given an opportunity to make his
statement under Rule 45 of the BSF Rules and his right of defence was
prejudiced. He submits that the punishment given to him was based on
assumptions and hypothesis. He further submits that there is no evidence
against him to the effect that the so-called smugglers crossed through
Gate No.43 nor was it established as to whether they were coming from
or going towards Bangladesh. He submits that if they were coming to
India from Bangladesh, then there is nothing against the petitioner
because they were yet to reach the Indian Border Post. The learned
counsel for the petitioner submits that the record of evidence was also
conducted by the same officer who had conducted the Court of Inquiry
against the petitioner; hence, he was obviously prejudiced in the case.
6. The learned counsel for the petitioner submits that in his entire tenure of
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service, the petitioner has never undergone any sentence because his
record was good. His character has also been certified as satisfactory.
He further submits that on the date of the dismissal order, the petitioner
had already served for more than 17 years in the rank of Constable since
16.2.1995. That the petitioner‟s career record has been unblemished.
It is only because of the present proceedings, that he had been confined
for one (1) day. He submits that the petitioner had received one (1)
DIG‟s Reward and ten (10) Commandant‟s Reward. He further
contends that no case is made out from the records. Therefore counsel
submits that the dismissal of the petitioner in such a summary manner is
most unwarranted, arbitrary and unsustainable in law.
7. In the Court of Inquiry, the petitioner was found blameworthy and
disciplinary action was recommended against him. The respondents state
that he was heard under Rule 45 on 16.4.2012 and on having been found
guilty of charges; he was dismissed from service on 21.4.2012. His
appeal against the dismissal order was also dismissed vide order dated
15.11.2012 because of the gravity of the offence. Resultantly, his
request for reinstatement and consequential benefits including
backwages was not allowed.
8. The learned counsel for the respondents has produced an extract from
the „Gate Out Register‟ to contend that on 9.4.2012, 17 Indian farmers
had gone out of the IBBF to cultivate their land within the territory of
India up to the international boundary. He submits that the gate could be
opened and closed only with the permission of the Gate Commander,
who in this case was HC Ashok Kumar. The Gate register shows that
Gate Nos. 43 to 46 were opened at 0700 hours under the command and
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signature of Gate Commander HC Ashok Kumar. Indeed, for the
subsequent four (4) days also, the signature of the same Gate
Commander HC Ashok Kumar is endorsed in the remarks column of the
Register. The contention of the learned counsel for the respondents is
that the petitioner had forged the signature of HC Ashok Kumar. This
argument is untenable because identical signatures have been appended
for the subsequent days also. Furthermore, there is no complaint of such
forgery by the petitioner either before the police or any other senior
authority nor was any case initiated against him regarding such forgery.
It could not, therefore, be said that the petitioner had opened the gate on
his own to allegedly "let through the unknown persons/miscreants"
through gate No. 43. The opening of the gate on the Indo-Bangladesh
Border Fence without due authority would be a serious matter and it
would be expected that appropriate proceedings be taken out against
such offending personnel/Constable/officer. No such charge was
preferred, perhaps because such an incident never happened and was
contended as an afterthought.
9. The records bear out that the alleged incident was noticed/came into
being after the petitioner had handed over the charge to the next „OP
party‟ comprising HC Kalpathnath Ram and Constable Santosh Kumar.
Furthermore, neither the FIR to the SHO, Police Station Gangarampur,
Dakshin Dinajpur dated 11.4.2012 nor the Operation Seizure Memo
dated 9.4.2012 mentions the petitioner of any wrong doing. This Court
notices that it is only on 12.4.2012, after a lapse of five days from the
alleged incident that the petitioner was for the first time imputed of
wrong doing and that too on the basis of conjectures. There is neither
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direct nor circumstantial evidence on the record to lead to the conclusion
of the involvement of the petitioner as charged. It is also not clear as to
whether the persons/miscreants were either coming towards or going
away from India. Nor is it clear or proven that the said
persons/miscreants who were never apprehended nor identified, had
crossed the Indian border through Gate No.43. Clearly, the entire
allegation against the petitioner is based on conjectures.
10. In the light of the above, the order of dismissal against the petitioner is
unsustainable. The orders dated 21.4.2012 and 15.11.2012 are
accordingly quashed and the petitioner is directed to be reinstated in
service with all consequential benefits from the date of his dismissal.
11. The writ petition is accordingly allowed. No orders as to costs.
NAJMI WAZIRI, J.
AUGUST 25, 2014 KAILASH GAMBHIR, J.
b'nesh
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