RAM KARAN SINGH v. U.O.I. & ORS.

CAV JUDGMENT

CAV JUDGMENT 22 nd /03/2017 The petitioner by way of this writ petition has prayed for setting aside the order of dismissal dated 12.10.1998 passed by the Summary Security Force Court under the Border Security Force Act, 1968 (hereinafter referred to as the BSF Act, 1968).

2. The allegations against the petitioner are that he was posted 17th Battalion, Border Security Force as Lance Naik at BOP, Varanhar, Barmer Sector. On 12.07.1998, it is his submission that he was assaulted by Head Constable A.P. Ravindran after intoxication in a party but instead of him, the petitioner was arrested and charge-sheeted under Section 20(a) of the BSF Act, 1968 for assaulting his superior officer. After trial by the Summary Security Force Court, his services were terminated. The Superior (2 of 9) [CW-5992/1999] Authority confirmed the termination order of the petitioner and his mercy petition was also rejected by the Director General, Border Security Force on 16.09.1999.

3. The petitioner has assailed the entire proceedings relating to the Summary Security Force Court. Admitted facts are that on 12.07.1998, a farewell party was organized at BOP Varanhar at about 11.00 hrs. to bid farewell to Head Constable Mohammad Ishaq, wherein liquor was also issued as per existing scale/limit and served to all. The party was over by 12.30 hrs. A complaint was made by Head Constable A.P. Ravindran to the effect that when he came out of the barrack at about 14.30 hrs. for urination, he saw the petitioner near the generator room in a state of intoxication. He called him and when the complainant approached the petitioner he caught him with both the hands, pushed him down, sat on his chest and started blowing/punching on him. It is alleged that petitioner beat Head Constable A.P. Ravindran, who was his senior, whereupon other personnel came and rescued the said Head Constable from the petitioner and took him to the barrack. The petitioner thereafter ran towards the Kot to get a rifle but the Kot was locked. The petitioner was then arrested and the Summary Security Force Court tried the case and found him guilty of the charges and dismissed him from service. An order to this effect was passed on 12.10.1998.

4. The submission of the learned counsel for the petitioner is that the offence alleged against the petitioner was at best be as per Section 20 of the BSF Act, 1968, which reads as under:- (3 of 9) [CW-5992/1999]

20. Striking or threatening superor officers.- Any person subject to this Act who commits any of the following offences, that is to say,- (a) uses criminal force to or assaults his superior officer; or (b) uses threatening language to such officer; or (c) uses insubordinate language to such officer; shall, on conviction by a Security Force Court,- (A) if such officer is at the time in the execution of his office or, if the offence is committed 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) in other cases, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned. Provided that in the case of an offence specified in clause (c), the imprisonment shall not exceed five years.

5. It is further submitted that Section 74 of the BSF Act, 1968 provides the manner and procedure for conducting trial by the Summary Security Force Court, while Section 73 provides for powers of a Petty Security Force Court. For ready reference, Sections 73 and 74 of the BSF Act, 1968 are quoted as under:-

73. Powers of a Petty Security Force Court.- A Petty Security Force Court shall have power to try any person subject to this Act other than an officer or a subordinate officer for any offence made punishable thereunder and to pass any sentence authorised by this Act other than a sentence of death, or imprisonment for a term exceeding two years.

74. Powers of a Summary Security Force Court.- (1) Subject to the provisions of sub-section (2), a Summary Security Force Court may try any (4 of 9) [CW-5992/1999] offence punishable under this Act. (2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a Petty Security Force Court for the trial of the alleged offender, an officer holding a Summary Security Force Court shall not try without such reference any offence punishable under any of the sections 14, 17 and 46 of this act, or any offence against the officer holding the court. (3) A Summary Security Force Court may try any person subject to this Act and under the command of the officer holding the court, except an officer, or a subordinate officer. (4) A Summary Security Force Court may pass any sentence which may be passed under this Act, except the sentence of death or of imprisonment for a term exceeding the limit specified in sub-section (5). (5) The limit referred to in sub-section (4) shall be,- (a) one year, if the officer holding the Security Force Court has held either the post of 1 Superintendent of Police or a post declared by the Central Government by notification to be equivalent thereto, for a period of not less than three years or holds a post of higher rank than either of the said posts; and (b) three months, in any other case.

6. It is his submission that the Border Security Force Rules, 1969 (in short, the BSF Rules, 1969) lay down as to for what offence which Court shall try the same. As per Rule 47, the charges for offence under Section 20 clause (a) were not to be dealt with summarily. Rule 47 of the BSF Rules, 1969 reads as under:- (5 of 9) [CW-5992/1999]

47. Charges not to be dealt with summarily.-A charge for an offence under section 14 or section 15 or clauses (a) and (b) of section 16, or section 17 or clause (a) of section 18 or clause (a) of section 20 or clause (a) of section 24 or section 46 (other than that for simple hurt or theft) or a charge for abetment of or an attempt to commit any of these offences shall not be dealt with summarily.

7. It is submitted that for the said offence, action, if any, could be taken under Rule 173 of the BSF Rules, 1969 by holding a Court of inquiry. However, the Court of inquiry was not conducted and directly the matter was taken up before the Summary Security Force Court and the petitioner was tried summarily and punished wrongfully by terminating his services.

8. Apart from above, learned counsel also submits that the petitioner was subjected to a very harsh punishment of dismissal from service in a case where there was a petty quarrel which occurred between the petitioner and the Head Constable in a state of intoxication. It has already come in the cross examination of the concerned Head Constable that the said Head Constable was in an aggravated state and had already consumed liquor, thus not only the petitioner was inebriated but the complainant was also inebriated and the petitioner was offered liquor at the behest of his superior officer.

9. It is further submitted by the learned counsel for the petitioner that in such a state if the petitioner has entered into a petty fight with his immediate superior Head Constable, the same would not attract the provisions of section 20 or could be said to be such misconduct where action under Section 74 of the BSF Act, 1968 was required to be taken. He therefore prayed that the (6 of 9) [CW-5992/1999] impugned order of termination be quashed and set aside.

10. Per contra, the learned counsel for the respondents has supported the action of the respondents and has submitted that the decision taken by the Summary Security Force Court was after recording the guilt of the petitioner. The statements which have come on record in the Summary Security Force Court reveal that there had been a quarrel which occurred in between the petitioner and the concerned Head Constable and taking into consideration the discipline to be maintained in the police service, the order does not call for any interference.

11. Having heard the rival submissions of the parties, this Court has examined the proceedings of the Summary Security Force Court. It is seen that the concerned complainant Head Constable A.P. Ravindran had in his cross examination admitted that one bottle of rum and one bottle of whiskey was distributed during the party and he had taken one peg of rum and one peg of whiskey. He also admits that the petitioner wanted to write a letter for disciplinary action but the said Head Constable had apologised to him for having committed the mistake. It is also admitted by him in the cross examination that he was not heard and therefore dropped the idea of medical check up and his medical check up was not done. The other Jawans who participated in the enquiry have also admitted to this situation that there was a scuffle between both of them and they both were in the state of intoxication.

12. Considering the said view, the findings of the Summary Security Force Court summarily recording the guilt of the (7 of 9) [CW-5992/1999] petitioner only do not appear to be correct. The provisions of Section 20 of the BSF Act, 1968, as quoted above, would clearly show that the said Section would not apply in cases where under intoxication two Jawans who may be of different rank, entered into a scuffle. In such circumstances, it cannot be said that there is a deliberate intention to hit the superior officer and one person cannot be booked and held guilty. It is a settled position of law that under judicial review this Court has a power to examine the process by which a decision is arrived at and if the process is found to be perverse or not in accordance with law, such action would not confirm the test of judicial scrutiny.

13. Accordingly, this Court finds that the petitioner has been unjustifiably held guilty of the charge under Section 20 of the BSF Act, 1968.

14. Coming to the question regarding legality of the order passed by the Summary Security Force Court. The provisions of Rule 173 of the BSF Rules, 1969 are to be followed strictly in cases where the offences under Section 20(a) of the BSF Act, 1968 are alleged. As is apparent, Rule 47 specifically bars Section 20(a) offence to be tried by the Summary Security Force Court in a summary manner. If the authorities considered it an act within meaning of section 20(a) of the bsf act, then the matter should have been placed before the Petty Security Force Court, provided under Section 74 of the BSF Act, 1968 and thus there is a basic illegality in the entire proceedings conducted by the respondents and, therefore, the order stands vitiated on this count also. (8 of 9) [CW-5992/1999]

15. Apart from above, even if we look at the so called delinquency, it is a case of petty quarrel which occurred at the spur of moment between two personnel who were admittedly under influence of liquor. Further it is also seen that while one of them made a complaint, the other refrained and forgave the assault made by the complainant and did not proceed further in making a complaint. In these circumstances, this Court finds that the extreme penalty of dismissal from service was wholly unwarranted and the punishment awarded to the petitioner is disproportionate to the so called act of misconduct.

16. In the case of State of Uttar Pradesh And Others Vs. Ram Daras Yadav, (2010) 2 SCC 236, a similar incident occurred where two constable fought with each other and the action was treated as sufficient for indiscipline and unbecoming conduct of one of them and his services were terminated from the police. The Apex Court found that while the incident had taken place, the punishment of dismissal was clearly disproportionate. It was observed in para 8 and 9 as under:-

10. We are quite conscious of the fact that we are dealing with a disciplined police organization. Discipline is the backbone of the police force. Highest degree of discipline is imperative for the smooth functioning of a police force. Both the respondent and Gajendra Kumar Singh have stated that infact the incident had not taken place and they were coerced to file complaints at the instance of the superior officials. It is difficult for us to examine the veracity of this allegation by the respondent and Gajendra Kumar Singh. Without arriving at any definite conclusion regarding veracity of allegation and counter-allegations, we are clearly of the opinion that the punishment of dismissal awarded in the facts and circumstances of the case is clearly disproportionate. (9 of 9) [CW-5992/1999]

11. In our considered view, the impugned order of the High Court requires modification and consequently, the order of termination dated 16.1.1991 is set aside and instead we direct that the respondent's two increments be withheld and the respondent be reinstated in service forthwith with 50% back- wages.

17. Following the view taken by the Apex Court in State of Uttar Pradesh And Others Vs. Ram Daras Yadav (supra), which in my humble view is almost on similar facts, the present writ petition is partly allowed and the impugned order of termination dated 12.10.1998 is quashed and set aside and instead petitioners two increments are directed to be withheld. The respondents are directed to reinstate the petitioner in service forthwith on the post which he was holding before termination with continuity of service and all consequential benefits, however 50% of wages shall be calculated notionally. (SANJEEV PRAKASH SHARMA)J. KKC/(Reserved)