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Case Number

W.P No. 13071 of 2001

Advocates

Archana Sengupta
Uttam Kumar Majumder
Kalyan Bondyopadhyay
Mintu Kumar Goswami
Advocates.

Judges

Mr. Jayanta Kumar Biswas, J.

Acts

Section 46 of the Border Security Force Act, 1968 (hereinafter referred to as the Act).
Rule 53(2) of the Border Security Force Rules, 1969 (hereinafter referred
Rule 51 of the Rules.9. Provisions of Rule 51 of the Rules
provisions in Rule 159 of the Rules,
Rule 53(2) of the Rules.6.
Rule 51(2) of the Rules,
Rule 53(2) of the Rules.
Rule 48 of the Rules.
Rule 51 of the Rules,
Rule 43 of the Rules,
rule (i.e Rule 43

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Smart Summary

Structured Summary of the Court's Opinion

Factual and Procedural Background

The writ petitioner challenged his dismissal from service as a constable in the Border Security Force (BSF). It was alleged that on September 6, 1998 he accepted Rs. 600 as gratification from an unknown Indian smuggler to permit illegal cross-border passage of buffaloes. The competent authority (the commandant) issued an initial charge-sheet dated February 26, 2000 under Rule 53(2) of the Border Security Force Rules, 1969, although the opinion records that the petitioner, not being an officer or subordinate officer subject to the Act at investigation/summary disposal stage, should have had allegations reduced to writing in the form set out in Appendix-IV and the appropriate provision for that stage was Rule 43.

A deputy commandant was detailed to record evidence; evidence was recorded and forwarded to the commandant. The commandant did not take a recorded decision in terms of Rule 51 after receiving the recorded evidence. On November 13, 2000 the commandant issued an order fixing trial for November 16, 2000 and issued a further charge-sheet dated November 13, 2000 (purportedly amending the earlier charge-sheet). The summary security force Court tried the petitioner on November 16, 2000 and ordered his dismissal, issuing an order that did not record findings or reasons. The petitioner filed a petition under Section 117 of the Border Security Force Act; the authority rejected it without recording any reason. The petitioner challenged these steps by filing the present writ petition.

Legal Issues Presented

Whether a charge-sheet issued by the competent authority under an incorrect rule (Rule 53(2) instead of Rule 43 for the investigation/summary stage) is vitiated in law or must be quashed solely on that ground.
Whether the commandant's failure to take, record and publish a decision under Rule 51 after receiving recorded evidence is a mandatory irregularity that renders subsequent steps illegal.
Whether a charge-sheet issued after recording of evidence (the charge-sheet dated November 13, 2000) is valid or illegal, particularly where no Rule 51 decision was taken and there was no scope to amend the initial charge-sheet after recording evidence.
Whether the summary security force Court's order of November 16, 2000, which contained no recorded findings or reasons, is legally sustainable.
Whether the authority's decision under Section 117, given without recording reasons, is legally invalid or requires remand.

Arguments of the Parties

Petitioner's Arguments

The initial charge-sheet was issued under an inappropriate provision (Rule 53(2) instead of Rule 43) and is therefore liable to be quashed.
The charge-sheet dated November 13, 2000 was issued illegally since there was no scope to issue such a charge-sheet after recording of evidence under Rule 48.
The summary security force Court's order dated November 16, 2000 contains no reasons or findings and thus is legally defective.
The authority's decision under Section 117 was given without reasons and is therefore liable to be quashed.

Respondents' Arguments

Although the initial charge-sheet was not issued under the appropriate rule (they acknowledged it should have been Rule 43), the charge-sheet should not be quashed at this stage because the petitioner did not take exception to the Rule 53(2) charge-sheet during recording of evidence and the summary trial.
The charge-sheet dated November 13, 2000 was issued for the purpose of amending the prior charge-sheet in view of evidence recorded by the officer detailed; it was a necessary corrective step.
The summary security force Court was to promulgate sentence immediately under provisions in Rule 159 of the Rules, and thus there was no scope or obligation to record findings or reasons in the summary order.
With respect to the Section 117 decision, respondents argued that the authority was under an obligation to record reasons; however, since the decision does not contain reasons, the matter should at most be remitted to the competent authority for fresh decision. They relied on the decision reported at (2003) 3 SCC 583 (Lalit Popli v. Canara Bank) to contend that the High Court in writ jurisdiction is not empowered to sit in appeal over the respondents' decisions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
(2003) 3 SCC 583 — Lalit Popli v. Canara Bank	Invoked by respondents to support the proposition that the High Court, in exercise of its writ jurisdiction, is not empowered to sit in appeal over administrative decisions of the respondents.	The court observed that it had not been invited to adjudicate the merits of the allegations against the petitioner and therefore the precedent relied upon by respondents did not assist them in the present circumstances; the court held that the decision relied on did not help the respondents because the High Court had not been called upon to decide the merits.

Court's Reasoning and Analysis

The court analyzed the case step-by-step, applying the Rules and procedural requirements set out in the Border Security Force Rules, 1969:

Charge-sheet under incorrect provision: The court held that issuance of a charge-sheet by the competent authority under the wrong provision (Rule 53(2) instead of Rule 43) is not ipso facto vitiating unless the petitioner can show actual prejudice from that irregularity. Because the charge-sheet was issued by the competent authority who had the power to issue it, the court declined to interfere solely on the ground that the wrong provision was cited.
Mandatory nature of Rule 51: The court found that Rule 51 is mandatory. After receiving the evidence recorded by the officer detailed, the commandant was under a duty to take a decision in terms of Rule 51(2) and to record reasons for that decision. There was nothing in the record to show such a Rule 51 decision had been taken.
Illegality of steps taken without Rule 51 decision: Because no duly taken decision under Rule 51 existed, the court concluded that all steps taken after the point where a Rule 51 decision was required were simply illegal.
Charge-sheet dated November 13, 2000: The court examined the respondents' contention that the November 13 charge-sheet was an amendment of the initial charge-sheet in light of recorded evidence. On the respondents' own case, the court found the November 13 charge-sheet was not issued after any Rule 51 decision and that, in any event, there was no scope to amend the initial charge-sheet after recording of evidence (per Rule 48). Thus the November 13 charge-sheet was held to be illegally issued.
Summary security force Court order of November 16, 2000: The court rejected the respondents' reliance on Rule 159 to justify the absence of recorded findings or reasons. It held that a summary security force Court, when acting as a quasi-judicial authority, is obliged to record findings and reasons in support of a decision to punish — recording reasons is a fundamental requirement of the rule of law. The absence of recorded findings and reasons rendered the November 16 order arbitrary and liable to be set aside.
Section 117 decision without reasons: The authority's rejection of the petition under Section 117 without recording any reason was also treated as legally deficient. The respondents' submission that the matter should be remitted was considered, but the court noted that it had not been asked to decide the merits of the allegations themselves and that the precedent relied upon did not assist them under the circumstances.
Remedy and directions: In light of the above defects (no Rule 51 decision recorded with reasons, illegal November 13 charge-sheet, summary court order without reasons, and Section 117 rejection without reasons), the court quashed the summary security force Court's order of November 16, 2000, the Section 117 authority's decision, and the November 13, 2000 charge-sheet. It directed the commandant to take a reasoned decision under Rule 51 on the basis of the initial charge-sheet dated February 26, 2000 and the evidence recorded by the officer detailed, within four weeks from receipt of the judgment, and to communicate that decision to the petitioner immediately.
Benefits and costs: The court made clear that entitlement to benefits would depend on the outcome of the Rule 51 decision; if the decision favours the petitioner, all benefits to which he is entitled shall be released without unreasonable delay. The court declined to order costs in favour of the petitioner.

Holding and Implications

Core Rulings

The writ petition is allowed to the extent indicated in the order.
The decision given by the authority under Section 117 and the summary security force Court's order dated November 16, 2000 are quashed.
The charge-sheet dated November 13, 2000 issued by the commandant is quashed.
The commandant is directed to take a reasoned decision in terms of Rule 51 of the Rules, based on the initial charge-sheet dated February 26, 2000 and the evidence recorded by the officer detailed, within four weeks of receipt of this judgment.

Implications:

The specific, direct consequence is that the prior punishment order and related administrative decisions (the November 13 charge-sheet, the summary court's November 16 order, and the Section 117 decision) have been set aside and the matter is remitted to the commandant for a fresh, reasoned decision under Rule 51, based on the initial charge-sheet and the recorded evidence.
If the commandant's fresh Rule 51 decision is favourable to the petitioner, all applicable benefits must be released without unreasonable delay; otherwise, further proceedings will follow consistent with the Rules.
The court did not purport to adjudicate the merits of the underlying allegations of misconduct; it limited its intervention to procedural and legal defects (absence of mandatory Rule 51 decision with reasons, illegal post-evidence charge-sheet, absence of recorded findings and reasons by the summary court, and absence of reasons in the Section 117 decision).
The opinion does not indicate the setting of any novel legal precedent beyond application of the mandatory requirement of Rule 51 and the obligation on quasi-judicial bodies to record reasons and findings; the ruling's principal effect is to correct procedural deficiencies in the disciplinary process in this case.

No order for costs was made in the writ petition. Urgent certified xerox copies of the judgment and order were to be provided to the parties on application.

Signed: S.K.G

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Roni Thomas Petitioner v. Union Of India & Ors. S

1. The writ petitioner is aggrieved by his dismissal from service.

2. While working as constable in the border security force, he faced the allegation that having committed a civil offence he was liable to be proceeded against in terms of Section 46 of the Border Security Force Act, 1968 (hereinafter referred to as “the Act”). It was alleged that on September 6th, 1998 he had accepted a sum of Rs. 600/- as gratification from an unknown Indian smuggler for permitting illegal safe Bangladesh passage to buffaloes belonging to such smuggler.

3. The commandant being the competent authority-issued a charge-sheet under Rule 53(2) of the Border Security Force Rules, 1969 (hereinafter referred to as “the Rules”).

4. Since the petitioner was not an officer or a subordinate officer subject to the Act, at the investigation and summary disposal stage the allegations were to be reduced to writing in the form set out in Appendix-I V to the Rules, and at such stage there was no scope to issue a charge-sheet under Rule 53(2) of the Rules. A charge-sheet under Rule 53(2) is framed and issued only when a decision has been taken for trial by the competent authority.

5. Learned Counsel for the petitioner has contended that since the charge-sheet was not issued under the appropriate provision, it is liable to be quashed. Learned Counsel for the respondents has submitted that though the charge-sheet had not been issued under the appropriate rule (i.e Rule 43 of the Rules), it should not be quashed at this stage, since at the stages of recording of evidence and trial by summary security force Court the petitioner did not take any exception to the charge-sheet issued under Rule 53(2) of the Rules.

6. I am of the view that on the mere ground that the charge-sheet was issued under Rule 53(2), when it was to be issued under Rule 43 of the Rules, it cannot be questioned, unless the petitioner can show that for the irregularity he suffered any actual prejudice. There is no dispute that the charge-sheet was issued by the competent authority, and he issued it only under a wrong provision. Since the competent authority has necessary power to issue the charge-sheet, in my opinion, on the ground that it was issued under a wrong provision, it should not be interfered with.

7. Immediately after issuing the charge-sheet dated February 26th, 2002 the commandant issued another order on the same day, and by it he detailed a deputy commandant for recording evidence. The evidence was recorded after giving opportunity to the petitioner. It appears that the officer detailed duly forwarded the evidence recorded by him to the commandant.

8. Admittedly, the commandant did not take a decision in terms of Rule 51 after receiving the recorded evidence from the officer detailed. Specific question was put by this Court to the learned Counsel for the respondents regarding this aspect, and after consulting the records of the proceedings and going through the opposition filed by the respondents, she has submitted that there is nothing to show that an appropriate decision was taken by the commandant in terms of Rule 51 of the Rules.

9. Provisions of Rule 51 of the Rules are mandatory in nature. After receiving the evidence recorded by the officer detailed, the commandant is under the duty to take a decision in terms of Rule 51(2) of the Rules, and such decision must contain reasons.

10. In the instant case, as we shall see presently, though direction was given for the petitioner's trial by the summary security force Court, before giving such direction the commandant did not take, record and publish an appropriate decision regarding the necessity of the petitioner's trial by summary security force Court. In my considered view, all the steps taken by the authorities subsequent to Rule 51 stage are simply illegal, since they were not taken in terms of a duly taken decision of the commandant under Rule 51 of the Rules.

11. After receiving the evidence recorded by the officer detailed, on November 13th, 2000 the commandant issued an order that the petitioners trial by the summary security force Court would be held on November 16th, 2000. By such order the commandant also named the persons who would attend the trial in the capacities of interpretor, friend of the accused, prosecution witness and accused. On the same day the commandant issued another charge-sheet under Rule 53(2) of the Rules. In this charge-sheet it was alleged that having acted in a manner prejudicial to good order and discipline of the force, the petitioner was liable to be proceeded against under Section 40 of the Act.

12. Learned Counsel for the petitioner has contended that the charge-sheet dated November 13th, 2000 was issued illegally, since there was no scope to issue such a charge-sheet after recording of evidence in terms of Rule 48 of the Rules. Learned Counsel for the respondents has submitted that the charge-sheet dated November 13th, 2000 was issued for the purpose of amending the previous charge-sheet dated February 26th, 2000. Her contention is that in view of the evidence recorded by the officer detailed, the necessity for amending the initial charge-sheet was felt by the competent authority.

13. On the basis of the case pleaded by the respondents in their opposition, I find that the charge-sheet dated November 13th, 2000 was not issued after taking a decision by the commandant for the petitioners trial by the summary security force Court. After such a decision, if taken, the competent authority was to issue the requisite charge-sheet in terms of Rule 53(2) of the Rules, and such charge-sheet would have been an antecedent step to the trial. There can be no doubt that the charge-sheet dated November 13th, 2000 was issued illegally, because after recording of evidence there was no scope to amend the initial charge-sheet.

14. The commandant notified the date for trial by the summary security force Court, and accordingly the trial was held on November 16th, 2000. On the same day the summary security force Court passed the order to dismiss the petitioner on the ground that the allegations made against him had been proved.

15. Learned Counsel for the petitioner has contended that the order dated November 16th, 2000 issued by the summary security force Court does not contain any reason at all, and it also does not contain the alleged findings of the summary security force Court. Learned Counsel for the respondents submits that in view of provisions in Rule 159 of the Rules, the summary security force Court was to promulgate the sentence immediately, and hence there was no scope at all for it to record the findings or to give the reasons in support of its decision and order. Her contention is that the summary security force Court was not under any obligation to record the findings or to give the reasons, since the provisions of the Act and the Rules did not expressly cast such an obligation on it.

16. I find that the order dated November 16th, 2000 passed by the summary security force Court is, as it were, a typical instance of arbitrariness on the part of the statutory authority. The Summary Security Force Court was trying the petitioner on the ground that he had allegedly committed offence under provisions of the Act. While it spoke about its findings in support of its decision, it refrained itself from recording such findings. I find absolutely no substance in the contention that in view of the provisions in Rule 159 of the Rules, it was under no obligation to record its findings and reasons. Recording of reasons in support of a decision is one of the fundamental requirements of the rule of law, and when the Summary Security Force Court was acting as a quasi-judicial authority, it was definitely under the obligation to record its findings and reasons in support of the decision to punish the petitioner. Hence the order dated November 16th, 2000 of the Summary Security Force Court is liable to be set aside.

17. Being aggrieved by the order of the summary security force Court, the petitioner duly presented a petition under Section 117 of the Act. In his petition he took many grounds for challenging the decision of the summary security force Court, and also for challenging the steps taken by the commandant. Such petition rejected by the competent authority without recording any reason.

18. Learned Counsel for the petitioner submits that the decision of the authority under Section 117 is liable to be quashed on the ground that it contains no reason at all. Learned Counsel for the respondents submits that under Section 117 the authority concerned was under an obligation to record reasons. She submits that since the decision given by the authority under Section 117 does not contain any reason, the matter can at best be remitted to the competent authority for a fresh decision. She submits that since all the steps were taken and the decisions were given after following the relevant rules and the principles of natural justice, in view of the decision reported at (2003) 3 SCC 583 (Lalit Popli v. Canara Bank) this Court, in exercise of its writ jurisdiction, is not empowered to sit in appeal over the decisions given by the respondents.

19. As will appear from the findings recorded hereinbefore no occasion has arisen for this Court to adjudicate the case on merits of the allegations made against the petitioner. Whether the petitioner was guilty of the offence alleged or whether the allegations levelled against him were proved, those were questions to be decided by the competent authorities, and this Court has not been invited to enter into them. Hence I do not see how the decision relied on helps the respondents.

20. For the foregoing reasons, the writ petition is allowed to the extent indicated below.

21. The decisions given by the authority under Section 117 and the summary security force Court on November 16th, 2000 are hereby quashed. The charge-sheet dated November 13th, 2000 issued by the commandant is also quashed.

22. The commandant is hereby directed to take a decision in the matter on the basis of the initial charge-sheet dated February 26th, 2000 and the evidence recorded by the officer detailed in connection with such charge-sheet. Such decision shall be taken by the commandant in terms of Rule 51 of the Rules, and the decision shall be taken within four weeks from the date of receipt of a copy of this judgment and order by him. The decision shall be a reasoned one, and it shall be communicated to the petitioner immediately after it is taken.

23. The question granting benefits to the petitioner shall be dependent on the decision that will be taken by the commandant under Rule 51. If the decision goes in favour of the petitioner, then all the benefits to which he will be entitled shall be released without any unreasonable delay.

24. In the facts and circumstances of the case, I am not inclined to make any order for costs in favour of the petitioner. Hence there will be no order for costs in the writ petition.

25. Urgent certified xerox copy of this judgment and order shall be given to the parties, if applied for.

S.K.G

Roni Thomas Petitioner v. Union Of India & Ors. S

Structured Summary of the Court's Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Roni Thomas Petitioner v. Union Of India & Ors. S

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