Agya Ram vs Union of India (UOI) and Others

Nirmal Singh, J.—The facts in brief be noticed as under:

Petitioner was enrolled in Border Security Force on 15th June' 91, as a Cook. After completion of training, he was remustered as Constable (GD)

on 30th May' 95. He proceeded on one day's casual leave on 1st March' 99 with permission to avail one day's gazetted holiday on 2nd March'

He was due to join his duties on 3rd March' 99 but he did not join and instead sent an application on 18th March' 99 for grant of 30 days

earned leave due to the sickness of his wife without any medical document in support of his claim. His request for grant of said leave was not

accepted by the competent authority due to exigency of service. The petitioner was informed at his residential address on 5th March' 99 vide letter

No. Estt/41/Disc/AR/75BN/99/3938 directing him to join the duty.

After more than 30 days of absence of the petitioner, a one man Court of Inquiry was ordered on 29th May' 99 u/s 62 of the Border Security

Force Act (here-in-after referred to as the Act). After completion of the Court of Inquiry, a show cause notice was issued to the petitioner through

Registered letter dt. 2nd July' 99, at his home address but the show cause notice was received back un-delivered. Petitioner reported for duty on

24th Aug' 99 after overstaying for 174 days. Petitioner was arrested as per Rule 36(1)(iii)(d) of BSF Rules, 1969 (here-in-after referred to as

rules), for disposal of disciplinary action u/s 19(B) of the rules. After completion of Summary court proceedings, petitioner was dismissed from

service. Petitioner impugned order of dismissal in this Court in SWP No. 2650/99. The said writ petition was disposed of by observing as under:

In view of what has been stated above, the respondents are directed to reconsider the issue as to whether the extreme penalty of dismissal was

required to be inflicted or the ends of justice would be served by reverting the petitioner to the post which he was occupying earlier to whom he

was remustered as a Constable. These are matters on which decision has to be taken by the respondents. They are left free to take a decision.

This petition would be treated as a statutory appeal in terms of Section 117A of the Border Security Force Act read with Section 168 of the

Border Security Force Act. Let a decision be taken within a period of four months from the date, a copy of the order passed by this Court is made

available by the petitioner to the respondents and also to the learned Counsel (Mr Ajay Sharma, Additional Central Government Standing

Counsel), who has put in appearance on behalf of the respondents today. The competent authority to see as to what relief the petitioner is found

entitled.

Disposed of accordingly.

In pursuance of order passed by this Court, respondent No. 2 considered the appeal of the petitioner and rejected the same vide order dt. 7th

Oct 02, impugned in the present writ petition. Petitioner thus, is seeking quashing of order dt. 7th Sept' 99 vide which the petitioner was dismissed

from service and order dt. 7th Oct' 02, vide which the appeal of the petitioner has been rejected. Petitioner is also seeking mandamus directing

respondents to treat the petitioner on active duty and pay him all consequential benefits.

Mr Sudershan Sharma, learned Counsel for the petitioner submitted that the petitioner had not committed any such misconduct in discharge of

his official duty which deserved dismissal from service. He submitted that the punishment awarded is not commensurate with the act of the

petitioner. It was stated that while imposing the punishment, the disciplinary authority must act reasonably and should impose the penalty which

commensurates with the act of the delinquent official. He submitted that the petitioner proceeded on one day's casual leave but could not join his

duty as the wife of the petitioner fell ill and the petitioner had applied for earned leave, which was not sanctioned and, in the meanwhile, the

petitioner himself fell ill as a result of which the petitioner could not join his duty. It is submitted that respondents in their reply have admitted that

the petitioner approached Commandant of the Battalion for grant of 30 days earned leave on the ground of sickness of wife but the said leave

application was rejected as there was no medical document attached with the application. He contended that the Commandant should have

directed the petitioner to produce the medical evidence. It is stated that the petitioner has placed on record the medical certificates issued by a

Government doctor which would substantiate the claim of the petitioner that his wife as also he himself fell ill.

On the other hand, the learned Counsel appearing for respondents submitted that no error whatsoever has been pointed out by the learned

Counsel for the petitioner in holding the Court of Inquiry or proceedings adopted by the respondents. He submitted that the Court of Inquiry was

conducted according to the rules and the principles of natural justice were also followed. It is submitted that the petitioner is a habitual absentee

and he has now made a ground that firstly his wife fell and then he himself fell ill. The learned Counsel submitted that the writ courts are not to

disturb the punishment awarded by the competent authority under the Act as the writ court is not a court of appeal. In support of his submission,

reliance was placed on Vidya Parkash Vs. Union of India (UOI) and Others, ; Union of India (UOI) and Others Vs. Major A. Hussain (IC-

14827), and Director General R.P.F. and Others Vs. Ch. Sai Babu, .

I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties and perused the record.

Learned Counsel for the petitioner has not challenged the court of inquiry proceedings conducted by respondents. The only contention raised by

the learned Counsel for the petitioner is that the penalty imposed is not commensurate with the act of the petitioner. It is admitted case that the

petitioner absented himself from duty earlier on two occasions and this was the third time when the petitioner has chosen to remain absent. The

petitioner when earlier filed the writ petition, referred to above, he had taken a stand that no opportunity was given to the petitioner with regard to

explaining the previous absence which has been taken note of by the punishing authority. Petitioner in the present writ petition has not given any

explanation for remaining absent on earlier two occasions. The petitioner has failed to point out any error in holding the court of inquiry

proceedings or that the principles of natural justice have not been complied with. The writ court cannot reopen and appreciate the evidence as to

whether the evidence was sufficient for imposing a major penalty. This is the domain of disciplinary authority to see as to what punishment is to be

awarded. The scope of judicial review has been considered by the Supreme Court in the case of Major A. Hussain (supra). In para 22 of the

judgment, it has been observed as under:

Though court martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the court martial is not

subject to the superintendence of the High Court under Article 227 of the Constitution. If a court martial has been properly convened and there is

no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any court

must stay its hands. Proceedings of a court martial are not to be compared with the proceedings in a criminal Court under the Code of Criminal

Procedure where adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said that court

martial remains to a significant degree, a specialized part of overall mechanism by which the military discipline is preserved. It is for the special need

for the armed forces that a person subject to Army Act is tried by court martial for an act which is an offence under the Act. Court martial

discharges judicial function and to a great extent is a Court where provisions of Evidence Act are applicable. A court martial has also the same

responsibility as any Court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the

provisions of law relating to court martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instructions of

the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. When

there is sufficient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. Requirement of proper

and adequate investigation If not jurisdictional and any violation thereof does not invalidate the court martial unless it is shown that accused has

been prejudiced or a mandatory provision has been violated. One may usefully refer to Rule 149 quoted above. The High Court should not allow

the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, court martial has jurisdiction over the subject

matter and has followed the prescribed procedure and is within its powers to award punishment.

In Ch. Sai Babu's case, referred to above, it was further interpreted as under:

Normally, the punishment imposed by disciplinary authority should not be disturbed by the High Court or tribunal except in appropriate cases that

too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors

including nature of charges proved against the delinquent, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard

to their sensitiveness, exactness expected of an discipline required to be maintained, and the department/establishment in which the concerned

delinquent person works. Merely because it is felt that the punishment imposed was extreme is not enough to disturb or modify the punishment

imposed on a delinquent officer. The Court has to record reasons to say as to how the punishment imposed on the delinquent is shockingly or

grossly disproportionate to the gravity of charges held proved against him. It is not that in every case of imposing a punishment or removal or

dismissal from service a High Court can modify such punishment merely saying that it is shockingly disproportionate.

Chapter III of the Act specifies the offences and also the punishments for such offences. Section 19 specifies that 'absence without leave'

constitutes an offence and on conviction by the Security Force Court, the person concerned is liable to suffer imprisonment for a term which may

extend to three years or such less punishment as is mentioned in this Act.

Chapter IV deals with the punishments. One of the punishment provided under the Act is dismissal from service. In this case, the petitioner

after availing the leave, did not report back. He applied for earned leave after remaining absent for about sixteen days on the ground that his wife is

ill but during this period, he did not join his duties even though, his wife was not admitted in any hospital and as per the certificate placed on record

(Anenxure A), she was advised home treatment. Same is the case of the petitioner. These medical certificates seem to have been procured by the

petitioner to justify his absence. Petitioner is a member of disciplined force, and therefore, there is no scope for taking a lenient view for a person

who is habitual absentee.

For the reasons mentioned above, this petition is found to be without merit and is dismissed along with connected CMP (s), if any.