Punjab-Haryana High Court
Union Of Inida And Others vs Dharamvir Singh on 15 April, 2024
Neutral Citation No:=2024:PHHC:051232
1
RSA-501 of 1989
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-501 of 1989 (O&M)
Reserved on: 02.04.2024
Pronounced on: 15.04.2024
Union of India and another
......Appellants
Versus
Shri Dharmvir Singh (died) through LRs
......Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Argued by: - Mr. Aseem Aggarwal, Advocate,
for the appellants.
Mr. Ishaan Bhardwaj, Advocate,
for the respondents No1(i) to 1(iv).
NAMIT KUMAR, J.
CM-6432-C of 2007
1. This application has been filed by the respondents-
applicants for placing on record reply to CM-3294-C of 2007.
2. Allowed as prayed for subject to all just exceptions. Reply
to CM-3294-C of 2007 is taken on record.
CM-3294-C of 2007
1. This application has been filed by appellants-applicants
under Order 41 Rule 27 CPC for leading additional evidence in the
present appeal.
2. Learned counsel for the applicants contended that
applicants-appellants had relied upon Summary Security Force Court
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proceedings which were conducted according to Border Security Force
Act and Rules before the trial Court and some part of the proceedings
was produced before the said Court as part of evidence. However,
despite due diligence, the applicants could not produce the complete
proceedings before the trial Court. Therefore, applicants may be
permitted to place on record the typed copies of the said proceedings as
additional evidence for proper adjudication of the appeal.
3. On the other hand, learned counsel for the respondents-
non-applicants opposed the application by contending that the
application has been filed by the appellants-applicants at a belated
stage. The documents were not even produced before the Lower
Appellate Court. Therefore, at this stage, appellants-applicants cannot
be permitted to lead additional evidence. Respondents have filed reply
to this application vide CM-6432-C of 2007. It has been averred that
suit was filed in the year 1983 which stood dismissed in the year 1987.
Aggrieved against the judgment of dismissal, respondent(s) filed appeal
which was allowed in the year 1988. Respondent Dharamvir Singh has
expired in the year 1994. Now in the year 2007, the said application
has been moved after the death of respondent Dharamvir Singh, which
cannot be cross-examined/rebutted.
4. I have heard learned counsel for the parties and perused
the record.
5. The point for consideration in the present application is as
to whether Summary Security Force Court was convened and
proceedings had taken place as per law. During trial applicants-
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appellants produced some of the Summary Security Force Court
proceedings before the trial Court, however, despite due diligence they
could not produce the entire proceedings before the trial Court. This
Court finds that documents sought to be placed on record by way of
additional evidence by the applicants are necessary for the proper
adjudication of the present appeal. The argument raised by learned
counsel for the respondents for filing the present application at belated
stage cannot be countenanced with. Initially vide CM-773-C of 1989
the applicant has moved application under Order 41 Rule 27 CPC for
placing on record certain documents which found mention in the order
dated 20.04.1989 which is reproduced as under: -
"Present: Smt. Mohinder Gupta, Advocate, with
Shri B.R. Mahajan, Advocate -
counsel for the appellant - UOI.
Smt. Gupta has filed an application u/s 151
read with Order 41 Rule 27 of the CPC, tendering various
certified copies of the record relating to Summary Security
Force Court with a view to showing that the observations
of the first appellate Court are not correct and are
falsified by the record.
Admitted.
The operation of the decree awarded by the
first appellate Court is stayed.
Sd/-
20.4.1989 Judge"
6. Thereafter, vide order dated 27.01.2005, the following
order was passed: -
"Present: Shri Kamal Sehgal, Advocate for the
appellants.
Shri Girish Agnihotri, Advocate, for the
respondent.
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RSA-501 of 1989
Shri Kamal Sehgal has framed
substantial questions of law arising in the appeal. Copy of
the statement containing the substantial questions of law
has been supplied to Shri Girish Agnihotri, counsel for the
respondent.
At the commencement of arguments, Shri
Sehgal pointed out that an application under Order 41
Rule 27 of the Code of Civil Procedure was filed on behalf
of the appellants, but the same has not been decided. At
the same time, he made a request that the appellants may
be permitted to file proper application for permission to
lead additional evidence.
The request of Shri Sehgal is accepted and
hearing of the appeal is adjourned to 14.2.2005.
Sd/-
January 27, 2005 (G.S. Singhvi)
Judge"
7. In such circumstances, it cannot be said that the said
application has been moved by the appellants at belated stage.
Therefore, the application is allowed and documents are taken on
record.
RSA-501 of 1989 (O&M)
1. This Regular Second Appeal is directed against the
judgment and decree dated 17.02.1988 passed by the Court of learned
Additional District Judge, Amritsar, whereby appeal preferred by
respondent-plaintiff-Dharamvir Singh against the judgment and decree
dated 16.07.1987 passed by the Court of learned Sub Judge Ist Class,
Amritsar, has been allowed and his suit for declaration stands decreed.
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2. For convenience sake, reference to parties is being made
as per their status in the civil suit. Plaintiff filed a suit for declaration
to the effect that order dated 24.03.1982 passed by the Commandant
41st Battalion Border Security Force Khem Karan is illegal being
against the provisions of law as contained in the B.S.F Act and Rules. It
was pleaded that plaintiff was in service as Constable/Head constable
in the Border Security Force. Inspector Sohan Singh under whom the
plaintiff was serving made a false accusation against the plaintiff as a
result of which the plaintiff made request for his transfer which was
ordered but the aforesaid inspector threatened the plaintiff that he
would take his revenge. On 23.01.1982, the plaintiff and Kartar Singh,
who was plaintiff No.1 in the suit, intercepted one Abul Bashar resident
of Rangoon (Burma) on Indo Pak Border and recovered from him
Rs.1200/- and one Omex Wrist
Watch which the plaintiffs were to produce before their superior
officer. They were implicated in false case that they have
misappropriated the amount and articles of the accused. Plaintiffs were
then charge sheeted. The enquiry was not conducted against the
plaintiffs as per provisions of Border Security Force Act. It was further
pleaded that the plaintiffs were not heard by Commandant and they
were sentenced to undergo six months rigorous imprisonment and were
dismissed from service. The plaintiffs alleged that the commandant was
not competent to act as summary Security Force Court. No witness was
examined in presence of the plaintiffs. They were not given copies of
the record of evidence. Summary Security Force Court was not
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conducted as per Rules 133 to 161 of the B.S.F. Rules and law
applicable in the matter.
3. The suit was contested by the defendants. Factual position
has been admitted in the written statement, however, the allegations
levelled by the plaintiff against the defendants have been contested and
controverted. It has been alleged by the defendants that the plaintiff(s)
intercepted one Abul Bashar resident of Rangoon (Burma) on Indo Pak
Border and they misappropriated Rs.1200/- and one wrist watch
recovered from him. On the request of Abul Bashar they returned
Rs.100/- and then Rs.400/-, in all Rs.500/- to Abul Bashar. The enquiry
and trial of the case of the plaintiff(s) was conducted as provisions of
Border Security Force Act and rules. The plaintiff(s) were provided full
opportunities and they also examined one constable as defence witness.
The entire trial took place in the presence of the plaintiff(s) and the
defendants have supported order dated 24.03.1982 pleading that the
same has been passed in accordance of provisions of law and rules.
4. From the pleadings of the parties followings issues were
framed:-
1. Whether order dated 24.03.1982 passed by the
commandant 41st Battalion, BSF is illegal and void?
If so its effect? OPP.
2. Whether civil Courts at Amritsar have no jurisdiction
to try the suit? OPD.
3. Relief.
5. Parties led oral as well as documentary evidence in
support of their respective contentions.
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6. After hearing arguments and after appreciating evidence
on record, trial Court dismissed the suit of plaintiff(s) vide judgment
and decree dated 08.05.1987.
7. Aggrieved against the judgment and decree of the trial
Court, plaintiff-Dharamvir Singh preferred an appeal before the lower
appellate Court, which has been allowed vide judgment and decree
dated 17.02.1988.
8. Learned counsel for the appellant contended judgment and
decree passed by the Lower Appellate Court is against law and facts,
therefore, is not sustainable in the eyes of law. He further contended
that plaintiff-respondent(s) failed to produce the impugned order
without which the proceedings of enquiry/legality or illegality of the
impugned order cannot be challenged. He further contended that
plaintiff was given full opportunity to defend his case. He further
contended that proper enquiry was conducted as per provisions of the
BSF Act & Rules and plaintiff was rightly dismissed from service after
following due procedure. Lower Appellate Court without considering
the evidence on record decreed the suit and reversed the well-reasoned
judgment of the trial Court. He further contended that the judgment of
the Lower Appellate Court being perverse and against law is liable to
be set aside.
9. On the other hand, learned counsel for the respondents
supported the judgment of the Lower Appellate Court by contending
that impugned order was not passed after following proper procedure,
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therefore, the same is against the BSF Act and Rules. Thus, the suit of
the plaintiff has rightly been decreed by the Lower Appellate Court.
10. I have heard learned counsel for the parties and perused
the record.
11. The appeal was admitted in the year 1989 and operation of
the impugned decree of the lower appellate Court was stayed vide order
dated 20.04.1989. Perusal of the record shows that on 28.01.1982
plaintiff along with Kartar Singh, who died during trial, intercepted one
Abul Bashar resident of Rangoon and extorted Rs.1,700/- and one
automatic Omax wrist watch from him. On request of Abul Bashar,
they returned Rs.500/- but misappropriated the balance amount of
Rs.1200/-. A charge-sheet was framed under Section 31 of the Border
Security Force Act and record of evidence was also prepared in
accordance with the Border Security Force Rules. The record was
prepared in English in the presence of both the accused who were made
to understand the same in the language they comprehended. It is
further crystal clear that plaintiff was allowed to cross-examine each of
the witnesses. Further, both the accused signed the record in token of
having understood the proceedings. Rule 48 of the Border Security Act
was complied with. Plaintiff was given chance to make statement but
he did not avail the said chance. Plaintiff and Kartar Singh examined
two constables and refused to call any other witness in defence.
Summary Security Force Court was convened on 18.03.1982. After
following due procedure, plaintiff was sentenced to six months
imprisonment and was dismissed from service. Further, plaintiff filed
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suit for declaration without producing on record the order impugned.
Section 31 of the Border Security Force Act, 1968 provides that if any
person commits extortion on conviction by the Security Force Court, he
shall be liable to suffer imprisonment for a terms which may extend to
ten years or such less punishment as mentioned in the said Act.
Therefore, the punishment awarded to the plaintiff was proportionate to
the offence committed by him. Lower Appellate Court cannot lightly
interfere with the quantum of punishment while dealing with the
paramilitary forces, which is one of the disciplined forces and guards
the nation. On thoughtful consideration, this Court finds that Lower
Appellate Court wrongly decreed the suit of the plaintiff.
12. In view of the above, appeal is allowed. Judgment and
decree of the Lower Appellate Court is set aside and suit of the plaintiff
is dismissed. Decree-sheet be prepared accordingly.
13. Pending application(s), if any, stand disposed of
accordingly.
(NAMIT KUMAR)
15.04.2024 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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