Sunil Kumar vs Union Of India
2024 Latest Caselaw 433 j&K

Jammu & Kashmir High Court

Sunil Kumar vs Union Of India on 12 March, 2024

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                              Sr. No. 07


   HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT JAMMU

Case:-   SWP No. 901/2005

Sunil Kumar, aged 34 years,
S/o Sh. Puran Chand,
R/o H. No. 388, Ward no. 23, Bahu Fort, Jammu.
                                                              ....Petitioners

             Through: Mrs. Surinder Kour, Sr. Advocate with
                      Mr. Dalvinder Kumar, Advocate

                Vs

1. Union of India, through Home Secretary,
   Ministry of Home Affairs, Govt. of India, New Delhi.
2. Director General of BSF,
   CGO Complex, Lodhi Road, New Delhi.
3. Inspector General of BSF,
   Frontier Headquarter, BSF Paloura Camp, Jammu.
4. Dy. Inspector General of BSF,
   Sector Headquarter, Paloura Camp, Jammu.
5. Command, 161 Bn BSF, C/o 56 APO.
6. Mr. R. P. S. Malik,
   the then 2nd-in-Command, 161 Bn BSF, C/o 56 APO.
7. Mr. R. S. Dhaka,
   the then Assistant Commandant, 161 Bn BSF C/o 56 APO.

                                                         ..... Respondent(s)

              Through: Mr. Rohan Nanda, CGSC

Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                 ORDER

12.03.2024

(Oral)

01. The petitioner in instant petition has implored for the

following reliefs:-

i) to quash Order No.06/70/2004/BSF/ CLO(D&L)/9560-64 dated 6/7th December, 2004, by which the Director General of BSF has rejected the appeal of the petitioner and also to quash Order No.Estt/SSFC/CT-SKyi6I/2000-

2001/678-88 dated 19.1.2001 issued by the Commandant J61Bn BSF, by which the petitioner was dismissed from service and also to quash the Summary Security Force Court Proceedings, and also to quash the Charges framed against the petitioner, by issuance of writ of Certiorari; and

ii) to issue direction to the respondents to consider the case of the petitioner for re-instatement and to allow the petitioner to join and perform his duties on the post of Constable on which the petitioner was working prior to his dismissal from service and to release the salary in favour of the petitioner and to give all other consequential benefits of service to the petitioner for which the petitioner is entitled and also to treat the period from the date of dismissal to the date the petitioner rejoins the duty as 'on duty', by issuance of writ of mandamus; and

iii) to issue direction to the respondents restraining them to fill up the post of petitioner by making appointment or adjustment and also restraining the respondents to treat the period from the date of dismissal to the date the petitioner rejoins the duty as 'break in service' by issuance of writ of prohibition; and

iv) to issue direction to the respondents to produce all the original record of Departmental Proceedings and Summary Security Force Court Proceedings, before this Hon'ble Court, by issuance of writ of mandamus; and

v) to declare the Order No.06/70/2004/BSF/CLO(D&L)/ 9560-64 dated 6/7th December, 2004 and Order No.Estt/SSFC/CT-SK/l61/2000-2001/678-88 dated

19.1.2001 and also the Summary Security Force Court proceedings, as unconstitutional, ultra-vires and contrary to the provisions of BSF Act and Rules by issuance of writ of mandamus; OR Any other appropriate writ, order or directions as the Hon'ble Court may deems fit and proper in the facts and circumstances of the case.

02. The facts under cover of which the aforesaid reliefs have

been prayed by the petitioner are that the petitioner came to be

appointed as a Constable in the year 1990 under No. 91000118 in

the Border Security Force (for short "the BSF") and after

undergoing training at STC Udhampur, came to be posted in 161 Bn

BSF.

03. It is being stated that on 10.10.2000, the petitioner while

posted at Dhumkund, Udhampur along with Head Constable Gulzar

Chand, Bansi and Inspector S. N. Sharma had gone to Hella village

from Kantha post, as an information was received that the militants

have come to the village and consequently laid an ambush,

whereafter in the morning a lady come out from the house where

the ambush was laid and upon seeing the force personnel made a

noise whereupon a fire sound was heard and the Head Constable

Gulzar Chand ordered the petitioner to search the house and the

house was searched by the petitioner along with Constable Rajbir

Singh and one member of Village Defence Committee, namely, Bansi

Lal.

It is being stated that during the operation the petitioner

killed a renowned militant namely Pajir, whereafter the petitioner

fell ill and came to be treated at BSF Hospital and while receiving

treatment as advised by the pharmacist to stay in the hospital, the

petitioner came to be directed to go to CDO Platoon and the

petitioner was forcibly sent to the CDO Platoon, whereafter the

respondents framed a false and frivolous charge-sheet against the

petitioner under Section 21(2) of the Border Security Force Act,

1968 (for short "the Act of 1968") alleging therein that the

petitioner disobeyed the lawful command given by the superior

officer.

04. It is stated that in the charge-sheet framed on 08.11.2000,

it came to be alleged that on 04.11.2000 HC Joginder Singh had

ordered the petitioner to go to CDO Platoon at CI post Sangaldhan

and that he refused to go to that CDO Platoon, alleging further that

on 05.11.2000, the petitioner attempted to desert the service by

leaving the lines and was caught by HC Joginder Singh and HC Hari

Singh as also that on 06.11.2000 and on 07.11.2000, the petitioner

refused to take his meal as was ordered by HC Joginder Singh and

SI J. S. Jaswal. The said allegations are stated to have been covered

under Section 18(1) and Section 40 of the Act of 1968.

05. It is being next stated that the petitioner pursuant to order

dated 09.11.2000 came to be placed under open arrest and

thereafter the respondents without conducting any inquiry

dismissed the petitioner from the service without even serving the

order of dismissal which compelled the petitioner to approach this

Court and filed SWP no. 1312/2000, to which the respondents filed

objections and took a plea that the petitioner has not availed the

remedy of filing of appeal against the order of dismissal which they

had placed on record with their reply, whereupon the said petition

came to be disposed of by this Court on 06.07.2004 requiring the

petitioner to file a statutory petition/appeal within one month,

which came to be filed by the petitioner on 29.07.2004 and same

came to be rejected by respondent 2 herein in terms of order dated

6/7-12.2004.

06. The petitioner has called in question the order of dismissal

dated 19.01.2001 as also the order of rejection of his appeal dated

6/7-12.2004 primarily on the grounds that the respondents did not

follow the mandate of provisions of the BSF Act as also the Border

Security Force Rules of 1969 (for short "the Rules of 1969") before

dismissing the petitioner from service.

07. Objections to the petition have been filed by the

respondents, wherein it is being admitted that the petitioner came

to be appointed as a Constable and on 17.10.2000. It is being next

stated that when a special operation was launched under the

command of Sh. R. P. S. Malik, Second-in-Command of 161 Bn BSF

in village Hella after receiving an information about the suspicious

movement in a house (Dhoke) and the during the course of the

operation, militants fired upon the search party and ran towards the

jungle, in retaliation whereof HC Gulzar Chand being the Party

Commander fired on fleeing militants resulting in bullet injuries to

one militant later identified as Pazir Wani the said HC Gulzar Chand

had ordered the petitioner to chase the fleeing militants, who

instead chasing the militants hide himself in the thick bushes and

did not fire even a single round from his weapon, as a result whereof

the militants managed to escape and, the petitioner showed an act

of cowardice.

08. It is being further stated that on 30.10.2000, the petitioner

reported at Tactical HQ from CI Post Sangaldan with a complaint of

headache and night blindness, whereupon he was given medicines

by the pharmacist and advised him to report to MI Room and that

as the condition of the petitioner was normal, on 04.11.2000, he

was ordered to go to Commando Platoon at CI Post Sangaldan to

which the petitioner refused to go and instead on 05.11.2000 the

petitioner tried to desert unit line in a civil truck in a militancy

prone area and upon being sighted by HC Joginder Singh, the

petitioner was brought to Tactical HQ and advised not to indulge in

such indiscipline act, however, the petitioner instead chose to stop

taking meals with effect from 06.11.2000, thus, the petitioner, for

the aforesaid acts of omission and commission became liable for

having committed offences under Section 21(2), 18(1) and 40 of the

Act of 1968.

09. It is being further stated that the petitioner after being

heard under Rule 45 of the Rules of 1969 by the

Commandant/respondent 5 herein, record of evidence thereafter

came to be prepared in accordance with the provisions of the Act of

1968 and the Rules of 1969 and after completion of process of

record of evidence, wherein witnesses had been examined in

presence of the petitioner giving him an opportunity to cross-

examine the said witnesses as also to make a statement in his

defence in terms of Rule 48 of the Rules of 1969, the

Commandant/respondent 5 herein was satisfied that there is a

prima-facie case against the petitioner, thus, decided to refer the

same to the Summary Security Force Court (for short "the SSF

Court").

10. It is being further stated that the SSF Court conducted

proceedings against the petitioner in accordance with the provisions

of the Act of 1968 and the Rules of 1969, wherein the friend of the

petitioner was also appointed for enabling him to defend his case

and during the course of proceedings of the said SSF Court, the

petitioner pleaded "guilty" and after complying with Rule 142 of the

Rules of 1969, the SSF Court sentenced the petitioner and ordered

his dismissal from service.

11. The respondents in the reply have admitted the fact that

the petitioner prior to filing of the instant petition had filed SWP No.

2318/2000, which came to be disposed of in terms of order dated

06.07.2004, whereafter the petitioner filed an appeal before

respondent 2 herein, which, however, came to be rejected on 6/7-

12.2004.

12. The grounds urged in the petition are being controverted in

the reply filed by the respondents while reiterating that while

proceeding against the petitioner, the provisions of the Act of 1968

and the Rules of 1969 came to be complied with and the petitioner

was given full opportunity to defend himself.

Heard learned counsel for the parties and perused the

record.

13. Before proceeding to advert to the issues raised in the

petition, it would be appropriate and relevant to refer to the

following provisions of Sections 18(1), 21(2) and 40 of the Act of

1968 for which acts of omission and commission, the petitioner

have had been proceeded against by the respondents.

"Section18- Desertion and aiding desertion:

(1) Any person subject to this Act who deserts or attempts to desert the service shall, on conviction by a Security Force Court,-

(a) if he commits the offence when on active duty or when under orders for active duty, be liable to suffer death or such less punishment as is in this Act mentioned; and

(b) if he commits the offence under any other circumstances, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned

(2) ......................

(3) .....................

Section 21- Disobedience to superior officer:

(1) .....................

(2) Any person subject to this Act who disobeys any lawful command given by his superior officer shall, on conviction by a Security Force Court,-

(a) if he commits such offence when on active duty, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned;

and

(b) if he commits such offence when not on active duty, be liable to suffer imprisonment for

a term which may extend to five years or such less punishment as is in this Act mentioned.

Section 40- Violation of good order and discipline:

Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and discipline of the Force shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned."

14. Before proceeding further in the mater, a reference to the

mechanism of holding of an inquiry against a delinquent BSF

personnel as provided in the Rules of 1969 also becomes imperative

hereunder:-.

Chapter VII of the Rules of 1969 provides for

investigation and summary disposal.

Rule 43 contained therein in the chapter supra deals with

offence report and provides that where it is alleged that a person

subject to the Act has committed an offence punishable thereunder,

the allegation shall be reduced to writing in the form set out in

Appendix IV.

Rule 45 also contained in chapter supra deals with hearing

of charge against an enrolled person and provides that the charge

shall be heard by the Commandant of the accused, by providing

that the charge and statements of the witnesses if recorded have to

be read over to the accused and if written statements of the

witnesses are not available or where the Commandant considers it

necessary to call any witness, he has to hear as many as witnesses

as he may consider essential to enable him to determine the issue

and wherever the witnesses are called by the Commandant, the

accused has to be given an opportunity to cross-examine them and

thereafter the accused is to be given an opportunity to make a

statement in his defence, whereafter the Commandant may either

award any punishment to the accused if he is empowered to award

or dismiss the charge or remand the accused for preparing a record

of evidence or for preparation of an abstract of evidence against him

or remand the accused for trial by a Summary Security Force Court.

Rule 48 deals with the record of evidence, the officer

ordering the record of evidence and provides that has to either

himself prepare the record of evidence or detail another officer to do

so and the witnesses therein have to give their evidence/statements

in presence of the accused with a right of cross-examination

available to the accused therein and thereafter the examination of

all the witnesses, the accused is to be cautioned that he can make a

statement if he wishes to do so and the accused may call for witness

in his defence.

Rule 51 provides that after the procedure of record of

evidence envisaged under Rule 48 supra, the matter has to be dealt

with by the Commandant and if he finds the recorded evidence

insufficient, he may remand the case for recording additional

evidence and, however, if the Commandant after going through the

record of evidence including the additional evidence, if any, may

dismiss the charge after recording reasons or rehear the charge or

award summary punishment or try the accused by SSF Court where

he is empowered to do so.

Under Chapter IX of the rules of 1969, Rule 65 of the

Rules of 1969 provides for the procedure of SSF Courts, where as

under Chapter XI provides for proceedings by the SSF Courts.

Rule 138 of the Rules of 1969 provides for arraignment

of the accused by SSF Court requiring the SSF Court upon the

arraignment of the accused to read over the charges to him and if

necessary translate to him and explain to him the same, further

requiring him to plead separately to each charge.

Rule 139 of the Rules of 1969 deals with objection by the

accused to the charge and provides that the accused may object to

the charge on the ground that it does not disclose an offence under

the Act.

Rule 142 of the Rules of 1969 deals with the general

plea of Guilty or Not Guilty and provides the accused person's

plea of "Guilty" or "Not Guilty" or if he refuses to plead or does not

plead intelligibly either one or the other, a plea of "Not Guilty" shall

be recorded on each charge.

Sub-rule (2) of Rule 142 provides that if an accused

person pleads guilty, the said plea of guilty has to be recorded

mandatorily as the finding of the SSF Court, however, before

recording the same, the SSF Court shall have to ascertain that the

accused understands the nature of the charge to which he has

plead guilty and has to be informed of the general effect of that plea

and in particular of the meaning of the charge to which he has

pleaded guilty and of the difference in procedure which will be made

by the plea of guilty and also necessarily has to advice to withdraw

that plea if it appears from the record of evidence or otherwise that

the accused ought to plead not guilty.

The Proviso appended to Sub-rule (2) of Rule 142 of the

Rules of 1969 provides that after recording of plea of guilty

signature of the accused and the friend of the accused shall be

obtained. The said proviso, however, came to be incorporated in the

Rules in terms of S.O. 2628 (E) dated 25.11.2011.

15. Keeping in mind the provisions of the Act of 1968 and the

Rules of 1969 supra and reverting back to the case in hand, the

petitioner indisputably stands served with an offence report for

having committed offences under Section 21(2), 18(1) and 40 of the

Act of 1968.

Perusal of the record produced by the counsel for the

respondents reveals that the said charges came to be drawn and

framed by the Commandant/respondent 5 herein on 08.11.2000

and came to be read over to the petitioner and the petitioner came

to be heard thereon, wherein before the Commandant/respondent 5

herein during the said hearing, the petitioner pleaded guilty.

16. Further perusal of the said record reveals that the

Commandant/respondent 5 herein referred the matter along with

the remand of the petitioner for preparing the record of evidence to

one Sh. R. P. S. Malik, 2nd -in-Command, which record of evidence

came to be drawn and prepared by the said officer on 08.11.2000

examining the witnesses, namely, SI Ranbir Singh, HC Hari Singh,

HC Joginder Singh and SI J. S. Jaswal.

The perusal of the statements of the said witnesses

recorded during the record of evidence proceedings envisaged under

Rule 48 of the Rules of 1969 reveals that the petitioner had have

been associated with the said process of record of evidence and even

during the course of recording of the statements of the aforesaid

witnesses, the petitioner have had been afforded an opportunity to

cross-examine the said witnesses besides having been read over the

said statements of the witnesses in the language that he understood

and the petitioner as a token of acceptance and acknowledgment

thereof had signed the said statements of the witness on the dates

the said witnesses were examined during the course of record of

evidence proceedings.

17. Further perusal of the said record reveals that the

Commandant/respondent 5 herein after receiving the record of

evidence provided an opportunity to the petitioner to make a

statement in his defence.

18. A further perusal of the record reveals that during the

course of proceedings of record of evidence, the documentary

evidence relied upon against the petitioner have had also been

exhibited and after the culmination of the record of evidence

proceedings, the Commandant/respondent 5 herein ordered the

trial of the petitioner by a SSF Court and being a competent

authority himself thereto convened the SSF Court proceedings

against the petitioner held on 09.11.2000, wherein the said

proceedings, one Sh. R. S. Dhaka, Assistant Commandant had been

nominated as friend of the petitioner.

19. Record of the SSF Court proceedings reveal that the

petitioner have had been arraigned as an accused in terms of Rule

138 of the Rules of 1969 after charges came to be read over and

explained to him, whereafter the petitioner has pleaded guilty to the

charges and the pleading of guilty to the charges by the petitioner

during the SSF Court proceedings stands certified by the

Commandant/respondent 5 herein on 01.12.2000 as also a

satisfaction drawn thereon the said plea of guilty by the petitioner

thereon by the Commandant/ respondent 5 herein in order to

ascertain that the said plea of guilty had been made by the

petitioner understanding the nature of charge to which he had

pleaded the guilty as also the general effect of that guilty.

A closer and deeper examination of the summary

proceedings conducted against the petitioner prior to the holding of

the SSF Court proceedings would reveal that the petitioner have had

been remained associated with such proceedings including the

record of evidence proceedings as also the SSF Court proceedings.

The plea of the petitioner that the respondents observed in breach

the provisions of the Act of 1968 and the Rules of 1969 in the

matter and did not afford him an opportunity to the petitioner

during the course of holding of said proceedings is found to be

factually incorrect.

20. The contention/plea of the petitioner that he was

condemned unheard and that the proceedings conducted by the

respondents were not conducted in tune with the provisions of the

Act of 1968 and the Rules of 1969, ex-facie, is found to be without

any basis and the plea of the petitioner that the entire proceedings

were conducted hurriedly and that the SSF Court proceedings were

initiated and culminated in one day, cannot be find fault with in

presence of the plea of guilty of the petitioner entered by him on the

very same day and, therefore, in presence of the said plea of guilty,

there was no reason or occasion for the respondents to have delayed

or protracted the proceedings.

The proviso appended to Sub-rule (2) of Rule 142 of signing

of the plea of recording of guilty by the petitioner is not indisputably

applicable to the instant case, as the said proviso came to be

incorporated to Sub-rule (2) of Rule 142 on 25.11.2011, much after

the proceedings were conducted against the petitioner and the

consequent order of dismissal passed against him. The plea of the

counsel for the petitioner that notwithstanding the incorporation of

the said proviso in the year 2011 to Sub-rule (2) of Rule 142, the

respondents otherwise were required to have obtained the

signatures of the petitioner on the said plea of guilty recorded in

light of the judgment of the Apex Court passed in case titled as

"Union of India Vs Jogeshwar Swain," reported in (2023)9 SCC 720,

is not attracted having regard to the aforesaid facts and

circumstances noticed and analyzed.

21. For what has been noticed, considered and analyzed

hereinabove, there is no merit in the petition, which, accordingly, is

dismissed.

22. Record produced by the learned counsel for the

respondents is returned back.

(JAVED IQBAL WANI) JUDGE JAMMU 12.03.2024 Muneesh

Whether the order is reportable : Yes

Whether the order is speaking : Yes