Reserved On 23.05.2023 vs Union Of India And Others
2023 Latest Caselaw 1091 j&K

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU

                                                   LPASW No. 63/2012

                                                   Reserved on        23.05.2023.
                                                   Pronounced on
                                                   26..05.2023.

Sandeep Singh                                                     ..... appellant (s)

                                  Through :- Ms Surinder Kour Sr. Advocate
                                             with
                                             Mr. Michael Dogra Advocate

                            V/s

Union of India and others                                       .....Respondent(s)

                                  Through :- Mr. Vishal Sharma DSGI.

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
       HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                                  JUDGEMENT

Sanjeev Kumar, J.

1 This intra-Court Appeal is directed against judgment dated

08.06.2012 passed by the learned Single Judge of this Court [„the Writ

Court‟] in SWP No. 706/2004 titled „Sandeep Singh vs. Union of India and

others‟ whereby the Writ Court has dismissed the writ petition of the

appellant.

2 Briefly put, the facts, leading to filing of this appeal are that the

appellant came to be enrolled as Constable in Border Security Force [„BSF‟]

in April, 1986 and was subsequently promoted as Head Constable on

03.01.2003. He was, however, dismissed from service by the Deputy

Inspector General of BSF vide his order No. Estt/SS/DISM/04/186-386 dated

03.01.2004 on the charge of his unauthorized absence from duty for 39 days

w.e.f 02.10.2003 to 09.11.2003. Prior to his dismissal from service, the

appellant had been awarded three punishments; on two occasions under

Section 19 (a) and on one occasion under Section 19(b) of Border Security

Force Act, 1968 [„the Act of 1968‟]. The appellant was reprimanded for an

act punishable under Section 19(a) of the Act of 1968 for remaining absent

without leave w.e.f 01.10.1991 to 02.10.1991. He was administered severe

reprimand again for remaining absent without leave w.e.f 08.04.1999 to

06.06.1999. The appellant again overstayed his leave without any sufficient

cause by six days w.e.f 05.04.2001 to 24.04.2001 and was awarded severe

reprimand yet again.

3 On 02.10.2003, the appellant absented himself from the campus of

SHQ-CI OPS Rawalpora without any leave or authority and remained absent

for 39 days. He joined back his duty voluntarily on 09.11.2003. During his

absence without leave, the respondents vide letter dated 09.10.2003 intimated

to the appellant to join duty forthwith and was warned of disciplinary action,

should he fail to join forthwith. The appellant, however, joined his duty on

09.11.2003 thereby remaining unauthorisedly absent from duty for 39 days at

his own. On joining the duty, an explanation was sought from the appellant to

for remaining absent without leave or prior permission of the competent

Authority vide letter dated 10.11.2003. The appellant submitted his

explanation in writing and submitted that due to his brother‟s death, some

relatives had come to meet him and since he was urgently required at his

home to complete certain documentary work, as such, he left the campus

along with his relatives. The explanation offered by the appellant was not

found satisfactory by the competent Authority and, accordingly, a decision

was taken to initiate disciplinary action against the appellant under the

statutory provisions of the Act of 1968 and the rules framed thereunder.

4 The appellant was attached with 42nd Bn of BSF vide order No.

Estt/SHQ CI OPS-I 9798 dated 10.11.2003 issued by the Deputy Inspector

General, BSF for disciplinary purpose. The Commandant 42nd Bn., at whose

disposal the services of the appellant were placed, heard the petitioner under

Rule 45 of BSF Rules, 1969 on 15.11.2003 on the charge of "Absenting

Himself Without Leave" under Section 19(a) of the Act of 1968. After

hearing the charge, the Commandant ordered Record of Evidence (ROE) by

the Deputy Commandant of the Unit vide order dated 19.11.2003. During the

Record of Evidence, the appellant was afforded an opportunity to defend

himself. The Deputy Commandant Sh. Jai Ram Singh prepared the Record of

Evidence.

5 The Commandant 42nd Bn. BSF, after going through ROE under

Rule 51 of the BSF Rules, 1969, decided to try the appellant by the Summary

Security Force Court (SSFC). After due appreciation of the evidence adduced

against the appellant during trial, the SSFC found him guilty of the charge

and sentenced him "to be dismissed from service". The sentence was

promulgated to the appellant on 03.01.2004 itself. Feeling aggrieved of the

manner in which the proceedings were conducted against the appellant and he

was handed down the sentence of "to be dismissed from service", the

appellant filed SWP No. 706/2004 to throw challenge to the entire

proceedings conducted by the respondents as also the sentence of "dismissal

from service" imposed upon him. The matter was contested by the

respondents. In the reply affidavit filed by the respondents, it was denied by

them that any of the provisions of the Act or the Rules framed thereunder

were infracted in the matter, that too, to the prejudice of the appellant.

6 The Writ Court considered the rival contentions and the grounds

of challenge urged on behalf of the appellant and came to the conclusion that

the respondents had followed the due process of law and that there was no

evidence of infraction of any statutory Rule in the matter. The Writ Court

opined that dismissal from service was one of the punishments specified

under Section 48(1)(c) which could be imposed by the SSFC after conducting

the trial and, therefore, no show cause notice of proposed penalty was

contemplated. The writ petition was dismissed by the Writ Court vide order

dated 08.06.2012. It is this order of the Writ Court which is assailed before us

on multiple grounds.

7 The primary ground of challenge, that was vehemently urged by

Mrs. Kour learned Senior Counsel appearing for the appellant, is that under

Rule 45 of the Rules of 1969, the charge against a delinquent enrolled person

like the appellant is required to be heard by the Commandant of such person

and a decision to try the delinquent enrolled person by the SSFC is also

required to be taken by the Commandant of such delinquent. Mrs. Kour

argues that, in the instant case, the Commandant of the appellant was Deputy

Inspector General, BSF, Sector Headquarter, Rawalpura and, therefore, the

hearing of charge, Recoding of Evidence and referring the appellant for trial

by the SSFC could not have been done by the Commandant 42nd Bn. BSF.

8 The Writ Court has dealt with the aforesaid issue and has, on the

reading of Rules 45, 48 and 51 of the BSF Rules, come to the conclusion that,

once the appellant was attached in the 42nd Bn BSF, it was the Commandant

of 42nd Bn. BSF who had the control over the appellant and was, thus, the

Commandant of the appellant for the purpose of Rules 45, 48 and 51 of the

Rules of 1969.

9 We have given our thoughtful consideration to the argument raised

by learned Senior Counsel, but, we could not help concurring with the view

taken by the Writ Court.

10 It is true where it is alleged that a person subject to the Act other

than an officer or subordinate officer has committed an offence punishable

thereunder, the allegation is required to be reduced into writing. This is

known as the „offence report‟. Charge against the enrolled person like the

appellant is required to be heard by the Commandant of such enrolled person.

"Who is the Commandant of the enrolled person" is not defined under the Act

or the Rules framed thereunder. However, the Administrative Head of the

Unit/Bn. subject to whose control the enrolled delinquent person is employed,

is the Commandant vis-à-vis such delinquent. In the instant case, the

appellant, at the time of committing the alleged offence of unauthorized

absence from duty, was posted in the Sector Headquarter BSF Rawalpora and

was, thus, under the overall control of DIG, BSF. However, the DIG BSF,

Sector Headquarter, in the exercise of its administrative powers, attached the

appellant in 42nd Bn. BSF, Charar-i-Sharief for conducting of disciplinary

proceedings. The moment the appellant was attached in 42nd Bn., he became

an employee of BSF subject to the control of Commandant 42nd Bn. It is the

Commandant of 42nd Bn BSF who, in terms of Rules 45, 48 and 51 of the

Rules of 1969 was the Commandant of the appellant for the purpose of

initiating disciplinary proceedings. We, therefore, reject the contention of

learned Senior Counsel that the entire disciplinary proceedings including the

proceedings by the SSFC were conducted by and at the behest of a person

who was not authorized to do so by the Act of 1968 or the Rules framed

thereunder.

11 The argument of Mrs. Kour that the punishment inflicted upon the

appellant is disproportionate to the misconduct attributed to him is also

without any substance. The appellant is an incorrigible offender and

compulsive absconder. Prior to the incident in question, he was thrice

reprimanded for either remaining unauthorizedly absent or overstaying

sanctioned leave. Despite numerous warnings administered, the appellant did

not mend his ways. Border Security Force is a disciplined Force engaged in

safeguarding the borders and frontiers of the Country. Such an Organization

cannot run on the personnel who do not have any sense of duty and have the

guts of remaining absent without permission or sanction of leave. The act of

the appellant is an example of gross indiscipline which cannot be tolerated in

any organization, more particularly in a disciplined Force like BSF. Having

regard to the nature of duty the BSF has to perform, it cannot ill afford to

show leniency to the people like the appellant who have least care for.

12 Viewed from any angle, we do not find that the penalty of

dismissal from service imposed upon the appellant is shockingly

disproportionate to the conduct attributed. The SSFC has considered the

evidence on record and has come to the conclusion that the dismissal from

service is the befitting punishment that is required to be imposed on the

appellant for the act of gross indiscipline committed by him. We, in the

exercise of writ jurisdiction, do not sit in an appeal over such decision of the

competent Authority, unless we find the decision completely vitiated by

perversity or the punishment awarded is, otherwise, strikingly

disproportionate to misconduct proved. We do not find either in the instant

case. See V. Ramana vs. A.P.S.R.T.C. & ors, (2005) 7 SCC 338, paras (11)

& (12) whereof reads thus:

"11. The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.

12. To put differently unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed".

Also in (2011) 10 SCC 244 Commandant 22nd Bn. CRPF vs.

Surinder Kumar, the Apex Court has, in para (15), held as under:

"Moreover, it appears from the impugned order that the High Court has in exercise of power of judicial review interfered with the punishment of dismissal on the ground that it was disproportionate. In Union of India vs. R.K. Sharma (AIR 2001 SC 3053), this Court has taken the view that the punishment should not be merely disproportionate but should be strikingly disproportionate to warrant interference by the High Court under Article 226 of the Constitution and it was only in an extreme case, where on the face of it there is perversity or irrationality that there

can be judicial review under Articles 226 or 227 or under Article 32 of the Constitution. Since this is not one of those cases where the punishment of dismissal was strikingly disproportionate or where on the face of it there was perversity or irrationality, the Division Bench of the High Court ought not to have interfered with the order of dismissal from service".

13 At the insistence of learned Senior Counsel, we have gone

through the entire record and we are satisfied that despite the fact that the

explanation tendered by the appellant was only his ipse dixit, the respondents

have followed the due process of law. They have meticulously followed the

procedure laid down in various Rules and have conducted the trial in strict

compliance with the principles of natural justice.

14 For the foregoing reasons, we are of the considered opinion that

the judgment of the Writ Court is legally perfect and unimpeachable. The

appeal is found to be without merit and the same is, accordingly, dismissed.

The record be returned to learned counsel for the respondents.

                           (PUNEET GUPTA)             (SANJEEV KUMAR)
                                  JUDGE                        JUDGE
Jammu
26 .05.2023
Sanjeev



                    Whether order is speaking:Yes

                    Whether order is reportable:Yes