Ex.Ct.Dharam Pal vs Union Of India & Ors.
2016 Latest Caselaw 4850 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Judgment Reserved on : July 25, 2016
%                                      Judgment Delivered on : July 27, 2016

+                         W.P.(C) 10461/2006

      EX.CT.DHARAM PAL                                        ..... Petitioner
               Represented by:         Mr.K.Viswanath, Advocate with
                                       Mr.Syed Sajjad Ali, Advocate

                                           versus

      UNION OF INDIA & ORS                                ..... Respondents
               Represented by:         Ms.Saahila Lamba, Advocate

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J.

1. The petitioner was enrolled with the Border Security Force on August 17, 1990 as a Constable. In the year 2005 he was posted with the 85 th Bn. BSF which was assigned the duty to guard the Indo-Pak Border in the State of Rajasthan.

2. On May 16, 2005 the petitioner was assigned duty at Naka Point No.2 of Border Out Post 24' Fwd. The petitioner did not report to duty and around 8:30 PM the absence was reported to the 'Coy' Commander of the Battalion but around 9:30 PM, the petitioner was found near his assigned piquet in an inebriated condition by the 'Coy' Commander Deepak Rana. He reported the matter to the Competent Authority who drew up an offence report, in compliance with Rule 43 read with Rule 44 of the BSF Rules, 1969, listing the following charge against the petitioner:

       Place and date                             Offence
        of offence
     B.O.P. 24-O        BSF Act-1968-Section 16 (c) in that he, at Naka Point
     Forward 85 Bn.     No.2 of BOP 24-O Fwd on 16.05.05 at about 21:40 hrs
     BSF.               when sentry on Naka duty at the said piquet was found
     16.05.2005         intoxicated.

3. On May 17, 2005, in compliance with Rule 45 of the Rules, the petitioner was brought before the Commandant, and as recorded in the proceedings held at 15:05 hours, four witnesses : (i) HC Pyare Lal, ii) SI Bharat Singh, iii) Ct.Sahookar Singh, and (ii) Ct.Kishan Lal were examined. The petitioner declined to cross-examine the four witnesses and the Commandant ordered the preparation of the Record of Evidence. Relevant would it be to note that the 'Coy' Commander Deepak Rana was not examined at these proceedings.

4. Required by the Rules, if fresh charge was drawn up in relation whereto the record of evidence had to be prepared, and suffice it to state that the charge drawn up was identical to what was the charge in the offence report. The Assistant Commandant of the battalion was directed to examine the witnesses and record the evidence. It is not in dispute that the proceedings for recording of evidence commenced in the presence of the petitioner and the department examined ten witnesses viz. HC Pyar Lal PW-1, SI Bharat Singh PW-2, Dr.Sudhir Solanki PW-3, Ct.Munna Kumar PW-4, Ct.Krishan Lal PW-5, HC G.Madhesh PW-6, 'Coy' Commander Deepak Rana PW-7, Ct.Manu Lal Meena PW-8, A.C. H.N.Pandey PW-9 and 2-IC A.K.Chakarbarty PW-10.

5. The testimony of the witnesses would bring out that on May 16, 2005, the petitioner was assigned night duty at Naka Point No.2 and before the duty hour commenced, the petitioner took permission from the 'Coy' Commander Deepak Rana to go to the Civil Hospital in Srikaranpur. At about 9:30 AM,

the petitioner left for the Civil Hospital from the Battalion HQ accompanied by Ct.Munna Kumar PW-4, Ct.Dilip Debenna and Ct.Chakma but failed to report for his duty at Naka Point No.2 of the Border Out Post and the absence was reported by HC Pyare Lal PW-1 to the Post Commander SI Bharat Singh PW-2 and further to the 2-IC A.K.Chakarbarty. The petitioner was found at around 9:35 PM by the 'Coy' Commander at the Naka Point No.2 of the Border Out Post but in a drunk condition. The petitioner had not made an entry in the general duty register of proceeding to duty. Deepak Rana conveyed this information over the telephone to 2-IC. As Deepak Rana ordered the petitioner to sit inside the vehicle, the petitioner refused stating that he knew that they all wanted to punish him and ruin his service record i.e. refuse to obey the command. Upon being apprised of the said fact, the 2-IC ordered that the petitioner should be arrested. The petitioner thereupon told HC Pyaare Lal that since he was being treated worst than a dog he does not want to serve BSF. In spite of being cautioned by HC Pyaare Lal to obey the command, the petitioner walked away which fact was conveyed to the 'Coy' Commander. The 2-IC had to personally intervene and he came to the unit accompanied by the Unit Medical Officer : Sudhir Solanki. The petitioner threw a tantrum. He threw his arms and ammunitions and picked up his bag and proceeded to leave the BOP. The guards prevented the petitioner from leaving. Sudhir Solanki medically examined the petitioner and made the report with reference to the petitioner's behaviour, writing therein that in the breath of the petitioner he could smell alcohol and the gait was abnormal.

6. The petitioner cross-examined PW-1, PW-3, PW-4, PW-5, PW-7 and PW-10 and not the others and suffice it to note that nothing material to discredit the witnesses has been brought out.

7. In his statement in defence the petitioner admitted having left for the hospital at Srikaranpur, but claimed that when he reached he found the

hospital closed. As per him he could not find a vehicle to return and therefore requested a motor cyclist to drop him at the BoP. As per the petitioner he consumed a quarter of some alcohol in the market and claimed that at 8:15 PM he left for Naka Point No.2 to perform his duties when the 'Coy' Commander approached him and asked him whether he had consumed alcohol to which he replied in the negative. The petitioner claims that the 'Coy' Commander caught him by the collar and abused him. He was directed to sit in a vehicle and he refused to do so because he was on Naka duty. But he left the Naka being ill and deposited his arms and ammunition.

8. Suffice it to state that the petitioner was making a desperate attempt to get around the incriminating evidence. He admitted having consumed alcohol, but stated that it was in the afternoon. He gave an excuse for not sitting in the vehicle when the 'Coy' Commander accosted him by claiming that being on Naka duty he could not abandon the Naka point, but explains his walking away on the excuse of illness.

9. Required by the Rules to be placed before the Commandant, the Record of Evidence was placed before the Commandant who, on a perusal thereof found that apart from the charge placed before him in the offence report and in respect of which charge the Record of Evidence was directed, the charge of leaving his guard without orders from superior officers was also made out and that there was enough material to try the petitioner before a Summary Security Force Court, the Commandant drew up a charge-sheet listing two charges as under:-

First Charge WHEN A SENTRY BEING INTOXICATED BSF ACT-1968- In that he at Naka Point No. 2 of BOP 24-O Fwd on May Section 16(c) 16, 2005 at about 21:40 Hrs when sentry at Naka duty at said piquet was found intoxicated Second Charge LEAVING HIS GUARD WITHOUT ORDERS FROM BSF ACT-1968- HIS SUPERIOR OFFICER

Section 16 (d) In that he, at BOP 24-O Fwd on the night of 16/17 May 2005 being sentry of the Naka No. 2, at about 22 30 hrs left the Naka location of the said Naka without order of his superior officer.

10. Serving the same upon the petitioner, the Commandant directed the petitioner to be produced before the Summary Security Force court on June 04, 2005.

11. The trial commenced on June 04, 2005 at 11:00 hours. The records would reveal that Insp.Ved Prakash was present as friend of the accused and Shri Gulshan Kumar Sharma as interpreter. At the arraignment, the petitioner pleaded 'GUILTY' to the first charge and 'NOT GUILTY' to the second charge. The court proceeded with the trial with respect to the second charge as mandated by Rule 143 of BSF rules. We would hasten to add that since the petitioner pleaded guilty to the first charge the Court explained to the petitioner the meaning of the charge to which he pleaded guilty and ascertained that the petitioner understood the nature of the charge to which he pleaded guilty. Thereafter, the Court informed the petitioner the general effect of the plea of guilt and the difference in the procedure which will follow consequent to said plea. Recording that the petitioner has understood the charge and the effect of his plea of guilt, the Court recorded that the record of evidence was read out, translated and explained to the petitioner and was marked 'L'. The Court then recorded whether petitioner wished to make any statement in mitigation of the punishment for the first charge to which petitioner pleaded guilty, and he replied stating that he has committed a mistake for which he may please be pardoned and further added that he will not commit any mistake in the future followed by a negative response to the question whether petitioner wished to summon any witness as to his character. We note that the procedure under Rule 143 has been duly complied with and

that the petitioner has entered a plea of guilt with respect to the first charge with a clear mind.

12. At the trial pertaining to the second charge, the prosecution examined four witnesses: HC Pyare Lal PW-1, SI Bharat Singh PW-2, A.K.Chakrabarty PW-3, and N.K.Sharma PW-4.

13. At the trial, the witnesses deposed in sync with their statements made during the recording of evidence proceedings save and except N.K.Sharma, the Assistant Commandant who was directed to conduct the Record of Evidence and who produced the petitioner's statement in defence as mandated by the Rules. In his defence statement the petitioner said the same which he had said during Recording of Evidence.

14. Thereafter the service record of the petitioner was produced and read out and it was recorded in the proceedings that since enrolment five penalties as under were inflicted upon the petitioner:-

"1. U/S-19(b) & (a) - 14 days RI on 10.08.93

2. U/S-19(a) - 14 days RI on 9.11.93

3. U/S-19 (a) - 28 days RI on 12.9.94

4. U/S-19 (a) - 28 days RI on 25.4.96

5. U/S-19(b) - 28 days RI on 12.7.99"

15. It is recorded that during his service of 14 years, 9 months and 18 days as a constable the petitioner had not earned either a decoration or an award.

16. Holding the petitioner guilty of the charges alleged against him, penalty of dismissal from service was inflicted. Statutory appeal filed by the petitioner has been rejected by the appellate authority who has noted that petitioner's service profile showed him to be constantly graded as an average constable with replete adverse remarks in the ACRs to the effect that the petitioner was a malinger, insincere, indisciplined and disobedient soldier.

17. The inchoately drafted writ petitions raises all and sundry points, most of which are inchoate and it appears that learned counsel who drafted the writ

petition threw one and all at the Court, hoping that something would stick. We would therefore record what was argued at the hearing held on July 25, 2016. The first argument was that the Commandant could not reframe the charge. The second argument was that merely consuming alcohol would not amount to a person being intoxicated. The third argument was that the Commandant could not consider the past service record because in the charge-sheet it was not so indicated. The last argument was that the penalty levied was disproportionate to the wrong committed.

18. The first argument was premised on the fact that the charge drawn up in the offence report and before recording of evidence commenced did not enlist the charge No.2 for which the petitioner was tried. This the petitioner's counsel claims to be the reframing of the charge. The argument overlooks that the wrong constituting the second charge surfaced during the testimony of the witnesses at the recording of evidence. The purpose of recording evidence at the Recording of Evidence stage is akin to a pre-charge evidence led before a criminal Court and the purpose is to see whether there is material to try a person or not and if during the process facts surfaced warranting alteration of a charge or an additional charge to be drawn up, there is no illegality in doing so. Thus, the Commandant committed no wrong in drawing up two charges while framing the charge-sheet for which the petitioner was ultimately tried.

19. The second argument overlooks the fact that the petitioner admitted charge No.1 by pleading guilty thereto. The petitioner had admitted even in his statement in defence that he had consumed alcohol and claimed that this was in the afternoon. This plea in defence is meaningless because the first charge was admitted. That apart, during recording of evidence the testimony of Dr.Sudhir Solanki brings out that the petitioner was heavily drunk : the recording 'gait : abnormal' is proof of said fact. Suffice it to state that since the petitioner pleaded guilty to the first charge, such witnesses who were

examined during recording of evidence concerning charge No.1 were not examined at the trial.

20. As regards the third submission, Rule 151 of the Rules contemplates that when a finding of guilt is recorded the general character, age, acts of gallantry or distinguish conduct of the accused as also his previous conviction would be taken note of, and this obviously has to be from the service record. The reason is obvious. Previous blameless conduct would be a mitigating circumstance for the purposes of appropriate penalty to be levied, and needless to state if the previous conduct, as in the instant case, is hopeless. It would be a relevant factor to impose the appropriate penalty. For the purposes of imposition of penalty, it would assume importance that the charged officer was a perpetual wrong doer and the past penalties had no sobering effect.

21. Rejecting the third contention advanced, we proceed to deal with the last. The argument that the penalty was disproportionate to the gravity of the wrong is noted and rejected for the reason the petitioner had left the unit lines with the permission of the competent authority to visit a doctor and get medicines. The petitioner merely went to the market and purchased alcohol. In a drunken condition, without making an entry in the duty register of departing to naka Point 2, the petitioner proceeded to naka Point 2. Since no entry was made to the Log Book the thought in the mind of the Coy Commander, rightly formed, was that the petitioner is missing. A search ensued. The petitioner was found drunk at naka Point 2. Directed to leave the naka Point and get him medically examined the petitioner disobeyed the lawful order of the Coy Commander. He simply walked away by throwing his arms and ammunitions. The petitioner was then found in the unit lines. He refused to be medically examined in that he refused to go to the hospital. Dr.Sudhir Solanki had to be summoned, and obviously he was without the

equipment to conduct a proper breath analysis test which could have showed the level of intoxication, but could report with reference to petitioner's gait and smell of breath that the petitioner was drunk. The past service record evincing five penalties levied. The petitioner being graded constantly average with many adverse remarks does not make the penalty disproportionate to the gravity of the wrong. If the rules require past conduct to be considered, the department had to factor in the past record. On the proportionality of the penalty, even the Court would be obliged to take into account the past service record

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

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE JULY 27, 2016 mamta