AI Structured Summary
Not yet generated for this judgment
Judgment
A.P. Singh, J.—Present writ petition under Article 226 of the Constitution of India has been filed by an Officer of the Border Security Force questioning the legality of the order imposing punishment of predating of his promotion by 3 years as a result of General Security Force Court proceedings, hereafter for the sake of brevity called the G.S.F.C. under the provisions of Border Security Force Act, 1968, hence after called the B.S.F. Act.
Though at the bar number of submissions were raised in support of the petition but the learned Counsel had particularly pressed the following submissions for assailing the legality of the proceeding. The submissions are:
(a) The Petitioner was denied the right to avail the service of a defence counsel of his choice although he had appointed a trained lawyer for that purpose instead Shri D.P. Sharma untrained person was appointed as his defence counsel though he had communicated his refusal to the Respondents to have him (D.P. Sharma) as his defence counsel.
(b) Rule 45B of the B.S.F. Rules which require hearing of the charge and the evidence in support of it by the commanding officer was not complied in as much as the commanding officer of the Petitioner did not give hearing to the Petitioner on the charge sheet and evidence in support thereof;
(c) Though the confirming authority is cast with the duty to confirm the findings and sentence of the G.S.F.C. as per the provisions of Chapter VIII of the B.S.F. Act, but before confirming the findings and the sentence awarded by the GSFC against the Petitioner, he did not consider Petitioner''s pre-confirmation representation which was filed u/s 117(1) of the B.S.F. Act. Similarly, while rejecting Petitioner''s representation the confirming authority did not disclose his mind in respect of the points raised by the Petitioner in the said representation.
(d) The appellate authority (D.G. B.S.F.) while rejecting Petitioner''s appeal filed u/s 117(2) of the B.S.F. Act, did not apply his own mind and dismissed the appeal on the basis of legal opinion received by him from the Chief Law Officer of the Force, though that officer has not been assigned the job to decide the appeals or to supply reasons for the dismissal thereof;
(e) The evidence adduced in support of the charges which were levelled on the Petitioner even if taken as they are still Petitioner''s culpability to the charges is not made out. In other words there is no evidence available on the record of the enquiry to bring home Petitioner''s negligence in the matter of the alleged over payment to the contractor.
Apart from the above points Petitioner''s learned Counsel highlighted Petitioner''s grievance against wrongful denial of his right of promotion on the next higher post though persons who were junior to him were promoted.
In my opinion, so far as the last point urged by the learned Counsel for the Petitioner may not be very material for the disposal of this case still since the Petitioner has also sought an order for his promotion on the next higher post which according to him has been denied to him due to the pendency of the disciplinary proceedings leading to the convening of the G.S.F.C. I would briefly deal with that point too at an appropriate stage.
Before dealing with the arguments raised in support and against the points mentioned hereinabove it would be necessary to notice the facts of the case in brief as well as the provision of law relevant to the case.
Facts:
Petitioner served as Asstt. Commandant in 27 Bn BSF during the period from 1981 to June 1983 then stationed at Rajouri (J and K). During that period, the Petitioner was looking after the construction repair and maintenance works of the Battalion as per verbal orders of the Commandant under the 2 I/C of the Battalion who was overall incharge of Construction....
...Petitioner was away from the Battalion during the period from 27.7.1981 to 28.12.1981 on an advance training Course at Delhi. In the month of July/Aug 1981, a sum of Rs. 7,500/ was placed at the disposal of the Battalion for providing one M.S. Tank for the ORs Mess by the HQ DIG BSF, Rajouri. Administrative approval and expenditure Rs. 7,500/- was issued by the then Offg. Commandant....
...On 2/3 Sept. �81, Shri K.I. Singh, Dy. Commandant (now retired) called for quotations vide letter No. 607/Q/Genl/Constrn/81 dated 2/3 Sept. �81 from different firms at Jammu. On receipt of quotations a board of Officers consisting of Shri Darshan Singh A.C. as Presiding Officer and with Sub. Maj. Gurudev Singh and S.I. Bharigat Mal as members, opened and signed the quotations numbering four on 30.9.81 and comparative statement of the quotation was prepared on the same day and the board of Officers signed and recommended the lowest tender of M/s. Sitaram and Sons, Jammu for acceptance on 30.9.81 and the same was approved on 17.10.81 by the 2 I/C and Offg. Commandant, Shri D.K. Parihar (now retired). In all the quotations the rates were quoted in figures only but the Board of officers opening and signing the quotations neither wrote the rates in words nor mentioned the total No. of quotations received and opened. They also did not mention the amount of lowest rates of M/s. Sitaram and Sons recommended for acceptance. In the comparative statement also neither the total amount of the quotations as per the requirement was worked out nor the rates were indicated both in figures and words. The rates of the 1,800 M.S. Tank quoted by three firms only as per comparative statement and quotations were as follows :
M/s. Bee Kay Traders Rs. 4,950/- each
M/s. Sitaram and Sons Rs. 4,940/- each
M/s. Arolite Agency Rs. 5,000/- each
...an estimate for providing and fixing on M.S. Tank at a cost of Rs. 7,500/- was prepared by the JE Shri G.S. Niar and submitted the same to the Petitioner which was signed by the Petitioner and approved by the Commandant, Shri M.K. Soni on 15.2.82. The estimate included besides the cost of tank, 40 Mts. of GI pipe and other accessories. (III) On enquiry by the Petitioner, the construction N.C.O. Shri Kewal Krishnan, S.I. put up the supply order in favour of the lowest approved tenderer, M/s. Sitaram and Sons at the rates shown in the comparative statement and the Petitioner signed the supply order on 20.02.1982 as per the rates shown in the comparative statement and approved by the Offg. Commandant. Thereafter the firm supplied the stores including the M.S. Tank which was received on 24.2.82 and surveyed by a Committee on 26.2.82 and taken on charge in the Ledger against the bill No. 424 dated 23.2.82 submitted by the firm for Rs. 6,440.70 P. in which the price of M.S. Tank was shown as Rs. 4,940.00. The bill with stock certificate was submitted to the Commandant by the Petitioner and the same was passed for payment by the Commandant and an advance of Rs. 6,200/- was sanctioned by the Offg. Commandant, Shri D.K. Parihar and the amount of advance was received by the Petitioner on 3.3.82 and sent through B.S.F. Personnel detailed to Jammu together with balance of Rs. 240.70 P. for making payment to the firm, which received payment on 3.3.82. and issued a receipt for Rs. 6,440.70 dated 3.3.82. An adjustment contingent bill for Rs. 7,262.00 against the total advance of Rs. 7,500/- drawn including the amount of Rs. 6,440.70 paid to M/s. Sitaram and Sons was prepared and after pre-audit by the Unit Accountant was passed by the D.D.O. Shri D.K. Parihar and countersigned by the Commandant on 23.1.1983 and the balance of Rs. 238/- returned to B.S.F. H.Qrs. New Delhi.
(IV) Thereafter on the basis of internal audit observation on the accounts of the Battalion for the period from 8/82 to 2/84 regarding overwriting on the rates quoted by the firms as well as in the Comparative Statement approved by the Commandant which resulted in embazzlement of Rs. 3,000/- was detected....
...One man Court of Inquiry, Record of evidence, Charge Sheet, under the BSF Act was drawn against the Petitioner for trial by General Security Force Court (GSFC) after a lapse of more than five years. The GSFC after completion of the trial, sentenced the Petitioner to take rank and precedence as if his appointment as Dy. Commandant bore date fifth day of June, 1987 instead of 5.6.84 vide order dated 30.11.91 and the sentence was confirmed by the Additional Director General, TC and M, Ftr. BSF on 27.2.91.
(V) Before confirmation of the sentence, the Petitioner submitted a pre-confirmation petition u/s 117(1) of the BSF Act, 1968 pointing out the defects and irregularity in the trial proceedings and more particularly the denying of a defending Law Officer of his choice vide his letter dated 17.12.91 but the same was rejected and communicated vide Signal dated 10.3.92. The Petitioner, therefore, submitted another post confirmation petition u/s 117(2) of the B.S.F. Act, 1968 to the Director General, B.S.F. New Delhi pointing out that the impugned punishment dated 30.11.91 was wrong, illegal, arbitrary, capricious, against the provision of law and against the principles of natural justice and praying for setting aside the same vide his petition dated 19.10.92 but the same was also rejected by the Director General, BSF vide their letter No. 6/339/92-Pet/CLO, (D and L)/BSF/1563-66 dated 4.5.1993, without giving any personal hearing as prayed for.
...Petitioner submitted a post confirmation petition dated 19.10.92 (Annexure-XXIII) to the Director General, B.S.F., New Delhi, pointing out the irregularities and defects in the proceedings as per provision of Section 117(2) of the B.S.F. Act for setting aside the impugned order dated 30.11.91 and with a prayer for personnel hearing but this was also rejected on the ground of being devoid of any merit and without giving any personal hearing vide D.G''s letter dated 4.5.93 (Annexure XXIV) in violation of the principle of natural justice and without giving any reasoned order.
The Law:
The B.S.F. Act concerns constitution of a Security Force for keeping security watch on the borders of the country it accordingly also deals with the conditions of services, discipline, offences, punishments and the procedure and manner for the award of punishments including remedies against it. It is compact code in itself. Border Security Force Rules, 1969, in this judgment referred to as the B.S.F. Rules framed by the Central Government in exercise of its power u/s 141 of the Act provides detailed procedures including for Constitution, Governance, Command and discipline of the force ; recruitment and enrolment of officers and members of the force, conditions of their service, convening, constitution, adjournment, dissolution and sittings of Security Force Courts, procedure to be observed in the trial by such Courts ; convening of, the constitution, procedure and practice of Courts of inquiry and other matter.
In the Act Chapter III deals with offences and Chapter IV with punishments, Chapter V deals with arrest and procedure to be followed before trial of an accused whereas Chapter VI deals with Security Force Courts. Their variety, composition, power to convene, need when it is to be dissolved and powers of respective SFC Courts; place of trial, limitation for trial. Chapter VII of the Act deals with the procedure to be followed during trial of offences by the S.F.C. where as Chapter VIII deals with confirmation and revision of findings and sentences of the SFC. Chapter IX of the Act deals with execution of sentences, pardons and remission etc. whereas last Chapter X deals with Miscellaneous matters.
For this case Chapter I and II are not relevant. In Chapter II Section 30 and 40 are relevant. Section 30 deals with the offence in regard to property of the Force. Clause (b) of this Section specifically deals with the offence with which Petitioner was initially charged. It say that whosoever dishonestly misappropriates or converts to his own use any, such property shall on conviction be liable to suffer imprisonment for a term which may extend to 10 years or such less punishment as in this Act mentioned. Section 40 under which Petitioner was subsequently charged as an after thought by taking recourse to the power under IInd proviso to Rule 59 of the B.S.F. Rules provides that any person subject to this Act who is guilty of any act or omission, which is not specified in this Act, is prejudicial to good order and discipline of the Force shall, on conviction... be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as in this Act mentioned.
Before proceeding further a brief look up of the procedure in the BSF Rules provided for punishing officers of the Force may be necessary. Rule 44 in Chapter III of the Rules requires preparation of charge sheet by reducing the allegations in writing in the form set out in Appendix VI in case of officers and under-officers. Rule 45B provides that a charge against an officer shall be heard by his Commanding Officer. The provision being important, in view of the allegation of the Petitioner of its noncompliance, is necessary to be quoted. It reads as follows:
Rule 45B:
Hearing of charge against an officer and a subordinate officer:
(1)(a) The charge against an officer or a subordinate officer shall be heard by his Commandant:
Provided that charge against a Commandant, a Deputy Inspector General or an Inspector General may be heard either by an officer commanding a Unit or Headquarters to which the accused may be posted or attached or by his Deputy Inspector General or his Inspector General or, as the case may be, the Director General.
(b) The charge sheet and statements of witnesses if recorded and relevant documents, if any, shall be read over to the accused:
Provided that where written statements of witnesses are not available, the officer hearing the charge shall hear as many witnesses as he may consider essential to enable him to know about the case.
(c) The accused shall be given an opportunity to make a statement in his defence.
(2) After hearing the charge under Sub-rule (1) the officer who heard the charge may:
(i) dismiss the charge; or
(ii) remand the accused, for preparation of a record of evidence or preparation of abstract of evidence against the accused;
Provided that he shall dismiss the charge if in his opinion the charge is not proved or may dismiss it if he considers that because of the previous character of the accused and the nature of the charge against him, it is not advisable to proceed further with it:
Provided further that in case of all offences punishable with death, a record of evidence shall be prepared.
Under Sub-clause (2) of Rule 45B the Commandant is given 2 options after he has heard the charge. He may either dismiss the charge or remand the accused for preparation of record of evidence or preparation of abstract or evidence against him. In case the Commandant remands the accused for record of evidence etc. then u/s 48 he is required to record evidence either himself or may depute another officer for it. Clause (1), (2), (3), (4), (5), (6) and (8) of Rule 48 are relevant hence are being reproduced below:
Record of evidence: (1) The officer ordering the record of evidence may either prepare the record of evidence himself or detail another officer to do so.
(2) The witnesses shall give their evidence in the presence of the accused and the accused shall have right to cross-examine all witnesses who give evidence against him.
Provided that where statement of any witness at a Court of inquiry is available, examination of such a witness may be dispensed with and the original copy of the said statement may be taken on record. A copy thereof shall be given to the accused and he shall have the right to cross-examine if he was not afforded an opportunity to cross-examine the witness at the Court of Inquiry.
(3) After all the witnesses against the accused have been examined, he shall be cautioned in the following terms ; "You may make a statement if you wish to do so, you are not bound to make one and whatever you state shall be taken down in writing and may be used in evidence." After having been cautioned in the aforesaid manner whatever the accused states shall be taken down in writing.
(4) The accused may call witnesses in defence and the officer recording the evidence may ask any question that may be necessary to clarify the evidence given by such witnesses.
(5) All witnesses shall give evidence on oath or affirmation.
Provided that, no oath or affirmation shall be given to the accused nor shall he be cross-examined.
(6)(a) The statements given by witnesses shall ordinarily be recorded in narrative form and the officer recording the evidence may, at the request of the accused, permit any portion of the evidence to be recorded in the form of question and answer.
(b) Witnesses shall sign their statements after the same have been read over and explained to them.
(6A) The provisions of Section 89 of the Act shall apply for procuring the attendance of the witnesses before the officer preparing the Record of Evidence.
(7) *****
(8) After the recording of evidence is completed, the officer recording the evidence shall give a certificate in following form:
Certified that the record of evidence ordered by... Commandant... was made in the presence and hearing of the accused and the provisions of Rule 48 have been complied with.
A perusal of Rule 45B and Rule 48 would show that fairness to the accused is the prime concern. He is authorised to cross-examine witnesses produced in connection with the proceedings under Rules 45B and Rule 48 whereas he is neither compelled to be examined nor if examined can be cross-examined. These procedures under Rules 45B and 48 are follow up procedures needed to be complied after the charge sheet is prepared under Rule 44.
Rule 49 thereafter requires for the preparation of abstract of evidence and its supply to the accused. Abstract of evidence includes statements of witnesses, their precise and copies of all documents intended to be produced at the trial. Rule 51A provides that the officer who had ordered for the record of evidence or to make an abstract of evidence may after going through the same: (a) dismiss the charge, or dispose of the case himself summarily; refer it to competent superior officer for disposal or to apply to competent officer/authority to convene a GSFC for trial of the accused. Rule 52 requires that the Commandant of the accused shall make an application in the form set out for convening of the GSFC. Rule 59 provides for the action to be taken by the superior authority on the application for convening the Court. The superior authority shall scrutinise the charge and the supporting evidence and if necessary may also consult Chief Law Officer or Law Officer in that regard whereupon he is empowered to direct the Commandant to dismiss the charge if he find the evidence to be insufficient and that production of further evidence is not likely to come or return the case for trial by summary security force Court or to return the case for recording further evidence if he finds the recorded evidence to be insufficient and that further evidence may be available. In other cases he may himself convene the Court or refer it to higher authority to convene it and the higher authority who is empowered to exercise all the powers which are conferred by the Rule on the Superior Officer. As per the IInd proviso to the Rule the Superior Officer or his higher officer while convening the Court is empowered to reframe the charge sheet on which the accused is to be tried. Rule 63 deals with the right of the accused to prepare his defence.
The rule interalia casts a duty on the Security Force Court to appoint a defending officer for the accused so as to give the accused proper opportunity for preparing his defence unless he himself, in writing, refuses to avail of services of the defending officer, where a legally trained officer is appointed for prosecution, the fact will be intimated to the accused who will be allowed to make arrangements for engaging a legally qualified counsel or officer for defending him. Next relevant rule is Rule 106. It requires that the confirming authority on receiving records of the proceedings of the Court shall record his decision in form set out in Appendix VIII. The confirming authority is free to confirm or disapprove the decision of the Court either on merits or on the technical plea or jurisdiction or relating to bar of trial. He is required to state his reasons if he decided to withhold confirmation. In case he find that the sentence has been improperly expressed by the Court he may express it properly while confirming it he may also vary its form. In case the said authority is satisfied of the sufficiency of the evidence in support of the findings recorded by the Court he may confirm it though there may have occasioned some deviation from the Rules provided no prejudice was caused to the accused from such deviation. He has been also given power to reduce or remit a portion of the sentence or commute the sentence with a lesser punishment whether unconditionally or on conditions which may be acceptable to the accused. The Rule further obligates promulgation of the finding and sentence to the accused by his Commandant after it has been confirmed by the confirming authority. The promulgation of withholding of sentence too is obligatory. Rule 123 is the next relevant Rule for this case. It relates with the requirements inter-alia for appearance of counsel of the accused where an accused person wants to be represented in the trial by a counsel he is required to give notice of it at the earliest opportunity either to his Commandant or to the convening authority.
Reverting back to the facts, the Petitioner was first charged with the offence u/s 30(b) vide charge sheet dated 10.11.90. The charge sheet (Annexure XXIV to the petition) reads:
In that he, while posted in 27BN BSF at Rajouri during 1981-82 and carrying out the duties of A.C. (Tech) and Construction Officer has manipulated and got embezzled of Rs. 3000/- on 30.9.81 in purchasing of one Mild Steel Tank of 1800 Ltrs. for the use of ORs Mess 27 BN BSF" In regard to the above charge proceeding of record of evidence under Rule 48 and abstract of evidence under Rule 49 was accomplished. However, at the stage of proceeding under Rule 59 which deals with the disposal of application for convening a Security Force Court made by the Commandant under Rule 52 before the Superior Officer, the Superior Officer found that for Petitioner''s conviction u/s 30(b) there was no evidence. Accordingly he interalia reframed the charge to be one u/s 40. Accordingly the ammended charge sheet dated 4.10.91 (Annexure XXIX to the petition) charging the Petitioner with the offence of Section 40 was served on him. In this charge sheet Petitioner was charged as under:
In that he, at Rajouri on 20 Feb, 1982, while performing the duties of Construction Officer of 27 BN BSF failed to exercise proper scrutiny and due check of all connected documents relating to purchase of M.S. Tank of 1800 litres capacity, before signing supply order No. Q/SD/27/80 dated 20 February, 1982 in favour of M/s. Sita Ram and Sons of Jammu which resulted in an over payment of Rs. 3,000/- (Rupees three thousand only) to the said firm.
It was this charge on which Petitioner was tried by a G.S.F.C. and was punished.
Now it is the turn to deal with the points pressed at the bar ;
In respect of point (a):
Sri S.K. Deb Purkayastha, learned Counsel for the Petitioner, hereinafter for short called Petitioner''s counsel, contended that as would appear from the proceeding of the G.S.F.C. order dated 23.10.90 that the Petitioner had informed the Court that he had engaged his own counsel for his defence at the trial still the Respondents in clear breach of the mandatory provisions of Rule 123 of the B.S.F. Rules did not allow him to avail the services of his counsel and in the instead first appointed Sri V.S. Drona and thereafter on his non-availability Sri D.P. Sharma an untrained person, though the prosecution was being handled against him by a trained and qualified Law Officer. It was further argued that though Petitioner objected to the appointment of Sri D.P. Sharma Respondents did not change him and on being thus appointed Sri Sharma illegally defended him at the trial. This according to the Petitioner''s counsel caused serious prejudice to the Petitioner at the trial resulting in its nullity.
Having considered the argument of the Petitioner''s counsel in the light of the material available on the record in the support of the contention, I do not find that any violation of the Rule (Rule 123 of B.S.F. Rules) has been occasioned in the trial by the G.S.F.C. There is no averment by the Petitioner in his petition or in any document that he gave notice either to his commandant or to the convening officer of his desire to be assisted by a counsel in the trial. This apart there is absolutely no material available in the record to show that after the Petitioner had informed the Court on 20.10.91 that he had engaged his counsel, the Court refused permission for his appearance or refused Petitioners request at any stage for adjournment so as to enable him to avail the services of his counsel for his defence.
Rule 123, as seen above, does not oblige the Force to make available the services of a lawyer or a trained person for the defence of the accused. It only obliges the Commandant or the Convening Officer or the Court to inform the accused that the prosecution is to be handled by a trained prosecutor and to give him reasonable opportunity to avail of the services of a counsel or of a trained person for his defence. There is no allegation in the petition that this was not done. In absence of allegation in regard to the above lapse of the Respondents it is not possible to believe that Rule 123 was breached to the prejudice of the Petitioner.
Coming to Petitioner''s objection against the appointment of Sri D.R Sharma as his defending officer, a perusal of Annexure XXVIII, XXX and XXXI of the petition will be necessary.
By Annexure XXVIII the convening officer appointed Sri V.S. Drona as the defending officer for the Petitioner on 10.10.91. Annexure XXXI is Petitioner''s letter of 20.10.91 addressed to his Commandant intimating him that appointment of Sri D.P. Sharma as his defending officer was not acceptable to him. In the said letter or in other document or even in the petition reasons for non-acceptance of the services of Sri Sharma as defending officer have not been indicated. At the bar Petitioner''s counsel, however, could give the only reason that he was untrained and ineffective as against the Law Officer appointed for prosecuting the Petitioner. Annexure XXX is signal dated 21.10.91 by the Commandant of the Petitioner intimating him that (a) Sri D.P. Sharma was appointed on 20.10.91 in place of Sri V.S. Drona, (b) he may appoint his own defence counsel, if he so wished, and (c) that a request to the respective units had already been made to make available the services of (1) Sri H.C. Sharma, (ii) Sri R.P. Sharma, Shri S.H. Shakrashi to work as defending officer for him.
In the light of the above factual position, it is not possible to agree with the suggestion of Petitioner''s counsel that Sri D.P. Sharma was forcibly thrust upon the Petitioner against his wishes as his defending officer so as to cause'' prejudice in his defence. On the contrary Respondents made every endeavour to allow Petitioner to engage his own counsel and to make available services of other officers of the force to defend him. The point thus is not made out which is accordingly rejected.
In respect of point (b):
In support of his second point, Sri Purkayastha, made two pronged argument. It was firstly contended by him that as a matter of fact no hearing was done by Petitioner''s Commandant so as to comply with the mandatory requirement of Rule 45B of the B.S.F. Rules. This contention was however proved wrong by Respondent''s learned Counsel Sri S. Chakravorty, who produced a certificate dated 23.3.1991 signed by Sri A.K. Aggarwal, 2IC officiating Commandant, 27 BN B.S.F. to prove that the mandatory requirement was fully complied. The certificate was shown to Sri Purkayastha for his perusal and comments, if any. Sri Purkayastha, however, fairly did not challenge its authenticity or correctness.
The certificate says that Sri B.K. Das, Commandant, 27 BN B.S.F. heard the case of Sri Bajpai ... on 10.11.90 at Karimganj whereafter he found a case against the officer (charged) u/s 30(b) (of the B.S.F. Act) of dishonestly misappropriating property belonging to the Government.
The certificate, correctness whereof is not in question, thus puts an end to the factual controversy raised on Petitioner''s behalf regarding non-compliance of Rule 45B.
Sri Purkayastha, however, extending his very same argument contended that since admittedly no hearing had taken place by the Commandant in regard to the altogether a new charge on which petitions was ultimately tried by the G.S.F.C. and punished notwithstanding the certificate dated 23.3.91 there has been no compliance of the provisions of Rule 45B which would therefore render the entire proceeding a farce and nullity. According to Petitioner''s counsel hearing of the charge and evidence by Petitioner''s Commandant regarding charge u/s 30(b) of B.S.F. Act, was wholly inconsequential when that charge was dropped by the Respondents and a wholly fresh charge u/s 40 of the B.S.F. Act was framed against him which was the subject of the trial and cause for Petitioner''s punishment. Sri Chakraborty, on Respondent''s behalf, however, refuting correctness of the argument of Petitioner''s counsel contended that since process of hearing of the charge and evidence by the Commandant was over before new charge was framed against the Petitioner by way of modification at the stage of convening of the G.S.F.C. hence fresh hearing of the Petitioner on the charge and the evidence by the Commandant was not at all required specially so when the evidence remained the same and as a matter of fact no fresh evidence was recorded in respect of the modified charge. Sri Chakravorty contended that hearing done on 10.11.90 will hold good for the legality of the trial though trial took place against the Petitioner on a modified charge.
Rule 59 empowers the convening authority to reframe the charge. It does not, however speak about the follow up procedure after an altogether new charge is framed at the stage of convening the Court for trial on charge. The rule also does not rule out the repeat of the process under Rule 45B, 48, 49 and 51A. Rule 45B gives wide power to the Commanding Officer as Rule 59 to the convening or the superior officer including the power to discharge the accused. It is after he remands him for preparation of record of evidence or the abstract of evidence that Rules 48, 49 and 51A come in to play.
Right of accused to be heard by his Commandant on the charge, as will appear from Rule 45B, is not an empty formality which the Commandant is required to perform. The right of hearing on the charge is coupled with the possible chance of the accused being discharged from the charge in case his Commandant dismisses the charge. Thus the Rule obliges the Commandant to apply his mind to the charge and the available evidence that may be available to support the charge and then to objectively decide on the basis of the material and the law as to whether the charge is prima facie made out so as to send the-accused to stand trial. It is only when he feels satisfied upon hearing the accused on the charge that the charge is prima facie made out that he orders for the remand of the accused fore action under Rules 48, 49 and 51.
Admitted position in this case is that Petitioner was heard on the charge sheet dated 10.11.90, however, no hearing was done by his Commandant on the reframed charge sheet dated 4.10.91 though nature of the reframed charge was wholly different from the 1st charge which was dropped.
If argument of Sri Purkayastha is accepted then a repeat performance of the requirements of Rules 45B, hearing of the charge, 48 recording of evidence, 49 preparation of abstract of evidence, 51A reconsideration of the evidence by the Commandant and exercise of option to discharge the accused or dispose of the case summarily by himself or to apply to the competent officer of superior rank for convening the Court and then reconsideration of evidence in the light of the reframed charge by the Convening officer under Rule 59 and re-exercise of his option for either dismissing the charge or to direct otherwise has to be undertaken.
From the scheme of the Act and the Rules there is no doubt that power of the Commandant and Convening officer are not alternate. Both have independent powers to exercise the discretion of dismissing the charge, whereas the Commandant has the option at 2 stages. First, under Rule 45B and second, when under Rule 51A he is to dispose the case when it is submitted to him after the record of evidence and abstract of evidence, whereas the convening officer would have only one chance at the stage of considering an application by the Commandant of the accused for convening the Court. Where no application is made under Rule 52 then the convening officer has no role to pay. The Commandant thus performs a much more important role and is conferred with more critical powers than any one else. The accused is entitled for consideration of his case by his Commandant twice in regard to the feasibility of his trial for the charge in the light of the available evidence.
Simply because of the fact that the Convening Officer who is superior in rank to the Commandant, has framed the charge under Rule 59 thereby bringing an altogether different charge against the accused than the charge on which the accused person was heard by his Commandant and the Commandant had the occasion to express his satisfaction for directing the preparation of record of evidence or for the preparation of abstract of evidence and to apply for convening of a Court for his trial by a G.S.F.C. does not, in my opinion, disentitle the accused of his right of hearing of the charge by his Commandant under Rule 45B and examination of Sufficiency of the evidence by his Commandant under Rule 51A in relation to the modified new charge.
If what Sri Chakravorty argues is accepted that would produce perilous results. For example an accused is charged of an offence, say u/s 36, for which maximum punishment is 3 years jail term and if on an afterthought he is charged with an offence punishable with maximum punishment of 10 years or more by exercising power under Rule 59 without giving chance to his Commandant to apply his mind in respect of the charge and to the supporting evidence, in my opinion, the accused will be prejudiced as his right of being discharged by Commandant would be denied in respect of the charge on which he has not to be tried. From the scheme of the Act also it does not look plausible or permissible to deny the protection provided by Rules 45B and 51A.
No repeat hearing by the Commandant either under Rule 45B or under Rule 51A would be necessary, if the reframed charge is punishable under the same Section of the Act, where, however, the nature of the charge on its being modified is substantially changed by the convening officer, while exercising his power under Rule 59 so as to make it an offence different from the one of which the accused was first charged in that case, in my opinion, compliance of Rules 45B and 51A will be required to be repeated, the fact that reframed charge is less severe than the earlier charge or is more severe is of no avail.
This view is also in conformity with the principles of natural justice and fair play which is the bed-rock of our Constitution. The Act and the Rules extensively provide for a fool-proof mechanism so as to ensure a fair deal to the person, who is accused of any crime both before he is put to face trial and after he has been sent to stand trial. His Commanding Officer, under whom he serves, has been given the key role to play in the matter of taking a decision for the trial of his officer at more than one stage. Application of mind by the Commandant is in relation to the charge which has been levelled on the accused and the supporting evidence at both the stages. Hence in a case where the charge, which was heard by him and for which he had asked for the Court to be convened, having disappeared and replaced by wholly a new charge which is punishable under a different provision of the Act, the power of the Commanding Officer to examine the new charge and the supporting evidence and the right of the accused to be heard by him on that new charge cannot be ruled out. For ruling out the compliance of procedure provided in Rules 45B and 51A, in my opinion, may not result in a fair deal to the accused who will be certainly prejudiced from its noncompliance.
It is, however, open for the Commanding Officer at the stage of hearing of the charge under Rule 45B to direct or not to direct for fresh preparation of the record of evidence or of the abstract of evidence, even if he has decided to remand the accused on the new charge where he is satisfied that the record is self-sufficient for sending the accused to stand trial on the new charge.
In the light of the above discussion, I feel fully convinced that notwithstanding the fact that Petitioner was heard by his Commandant on 10.11.90 in relation to the 1st charge u/s 30(b) he was entitled to be reheard by his Commandant on the reframed new charge u/s 40 on which charge he was tried and punished. Failure of the Respondents in providing the requisite hearing to the Petitioner under Rule 45B and 51A of the Rules for the reason that he was heard by the Commandant in relation to the unammended charge u/s 30(b) of the Act, in my opinion, vitiates the entire proceeding including the trial, the findings and sentence recorded by the G.S.F.C, confirmation of the findings and sentence of the G.S.F.C. and the appellate order. It is well known that if the foundation itself is faulty for being against the specification the superstructure constructed over it is bound to collapse.
In respect of point (c):
I have already referred to the provisions regarding confirmation and revision of the findings and sentence contained in Chapter VIII of the Act and Rule 106 of the Rules.
Section 107 emphasises the need of the findings and the sentence of G.S.F.C. to be confirmed in the manner provided by the Act. Section 108 requires that confirmation in case of sentence and findings of the G.S.F.C. is to be by the Central Government or by an officer, who may be empowered in that regard under a warrant by the Central Government and as per Section 109 such authorisation may be made with or without restrictions and conditions. Section 111 empowers the confirming officer, if he has been authorised by the Central Government by a warrant in that behalf, to exercise the following powers while confirming the findings and sentence of the G.S.F.C.
(a) mitigate or remit the sentence of the G.S.F.C.; or
(b) to compute the punishment to a lesser one than the punishment which has been awarded.
This case be done only in confirmity with the conditions and restrictions with which the power to confirm has been given to him. Section 113 also empowers the confirming authority, be it be Central Government or its nominee, to revise the findings and sentence of the Court and such revision may be annulment of the proceedings or a remand to the Court for retrial or for examining more evidence. Section 117 given a right to the accused to put up his own objections/points for consideration by confirming authority before the findings arrived at and sentence awarded by the G.S.F.C. are confirmed u/s 113 at the same time casting a corresponding duty on that authority to take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates.
Sections 113 and 117 read together clearly mark out that the confirming authority, while exercising the power of confirmation, has the duty of examining the points raised by the accused in his petition filed by him u/s 117(1), which is generally called pre-confirmation appeal, and to apply his mind to those points and record his (if not detailed) brief reasons to turn it down in case he does not agree with the points raised. The remedy of filing pre-confirmation appeal by the accused for consideration of his objection etc. by the confirming authority before he puts his seal of approval to the findings and sentence recorded by the Court would be rendered otiose if the confirming authority does not disclose his mind so as to make it appear to the accused and to others that the points raised by the accused in his appeal were duly considered but for the reasons given in the order of that authority were not found to be acceptable. In a case, like the present one, where no reasons are given by the confirming authority and an order of confirmation is passed by that authority saying "the findings and sentence awarded by the Court are confirmed" the question will certainly arise will such an order be sufficient compliance of the mandatory requirements of Sections 113 and 117. This is the question which arises for consideration by the Court in this case.
Annexure XVI to the petition is the pre-confirmation appeal which Petitioner filed on 7.12.91. Its rejection order was communicated to him by signal dated 10.3.92, which is Annexure XVII to the petition. It reads "... as intimated vide FTR TCM SIG A 4436 of 04 March 92 pre-confirmation petition addressed to convening officer by above office considered but rejected by competent auth (.) Request Info. Sh A.P. Bajpai JAD (C) of your HQ accordingly".
The signal does not show as to on what grounds Petitioner''s pre-confirmation appeal was dismissed. No material either has been placed by the Respondent''s learned Counsel, though he is possessed of the entire record which was summoned at the hearing of the case, to show that the confirming authority had in fact given his consideration to the points and objections raised by the Petitioner against the findings and sentence of the G.S.F.C. Original order of confirmation which was produced before me too does not disclose application of mind by the confirming authority vis-a-vis the points raised by the Petitioner in Annexure XVI which are almost the same as have been addressed in this Court. No reasons for reference to the said points appear anywhere in the record from which even a semblance of application of mind by the confirming authority to the points raised by the Petitioner may be inferred. Therefore only irresistible conclusion in the circumstances to which one is compelled to draw is that the confirming authority failed to discharge his imperative statutory duty cast on him by Sections 113 and 117 of the B.S.F. Act read with Rule 123 of the B.S.F. Rules. Result of the same is that the order of confirmation is rendered a nullity and the sentence and findings of the G.S.F.C. against the Petitioner are of no avail in the absence of lawful order of confirmation which is the hallmark of Chapter VIII of the B.S.F. Act and Rule 123 of the B.S.F. Rules.
Point (c) is answered accordingly in favour of the Petitioner.
In respect of point (d):
Section 117(2) provides for the post confirmation review of the findings and sentence of the GSFC by the Central Government or by the Director General of the Force or by an officer who is superior in command to the officer who confirmed the finding and sentence. The officer exercising the power has been given wide powers to make any order on the review application of the accused person as he may think proper. Section 118 specially empowers the Central Government or the Director General of the Force to annul the proceeding of any GSFC on the ground that the same is illegal or unjust.
In the present case the IInd review of the findings and sentence of the G.S.F.C. against the Petitioner was made by the D.G. of the Force. Annexure XVIII to the petition is the appeal which was filed by the Petitioner on 19.10.92 for post confirmation review of the findings and sentence of the G.S.F.C. Annexure XIX to the petition is the order dated 4.5.93, which was passed by the D.G. rejecting the post confirmation appeal of the Petitioner. It has been issued from the office of the D.G. but is signed by the Chief Law Officer on behalf of the D.G. In this letter of rejection information of rejection bereft of the order passed in that regard has been communicated to the Petitioner. It has been said that the petition has been rejected by the D.G. being devoid of force. A formal statement of the petition having duly been considered is also there. In his appeal Petitioner had raised several contentious issues and had also asked to be given an opportunity of personal hearing but the order communicated to him on behalf of the D.G. does not disclose the reasons for not agreeing with those points and for not allowing him the personal hearing.
Feeling aggrieved from the raw deal which was meted out to him both by the confirming authority and the IInd appellate authority Petitioner filed Civil Rule No. 35(SH) of 1994 questioning the legality of the punishment which was awarded to him by the GSFC and its confirmatory orders passed by the confirming authorities u/s 117 of the B.S.F. Act. This Court by a short order, without going into merits of the case and without noticing the facts and contentions raised before it, disposed of the case with the following direction:
The D.G. should look into the matter personally after giving the Petitioner ample opportunity in the matter and pass such order as he may deem fit and proper.
The order, however, did not disclose whether the D.G. was to give personal hearing to the Petitioner before passing the order as he deemed fit and proper. The direction, however, to give ample opportunity in the matter, in my opinion, cannot safely be interpreted to be one of personal hearing. However, one thing in the said order of this Court was clear and that was that the D.G. was to personally look into the matter and pass such order as he deemd fit and proper. Does this directions mean that the D.G. while disposing the appeal of the Petitioner had to personally examine the merits and demerits of the points raised therein by the Petitioner and to personally pass the order which obviously was to be backed by his reasons without any external aid, i.e. was the D.G. by virtue of the order of this Court, prevented from taking the assistance of the Chief Law Officer so as to refrain from assigning the job of consideration of the appeal and supplying of the reasons for its rejection to the said Chief Law Officer ? This too is the question which now arises in the present case.
Armed with this Courts order dated 1.6.95, Petitioner filed his additional appeal u/s 117(2) for its consideration by the D.G. B.S.F. Deputy Director (Pers) of the D.G. office vide letter dated 11.7.95 asked the Petitioner to submit his additional points for D.G''s. consideration and was allowed 15 days time for that. Annexure III to the petition is the copy of that letter, and the additional/supplementary appeal filed by the Petitioner on 8.8.95 is Annexure IV to the writ petition. Annexure V to the petition is the letter of communication of the order of the D.G. by the Deputy Director (Pers) to the Petitioner on behalf of the D.G. The letter reads as follows:
Consequent upon the order passed by the Hon''ble High Court of Gauhati (Shillong Bench) dated 01.6.1995 in Civil Rule No. 35 (SH) of 1994 in the case of Sri Anil Kumar Bajpai v. U.O.I. and Ors. you were afforded opportunity to make additional points for consideration by the Director General, Border Security Force, i.e. in addition to the points raised by you in the writ petition. Accordingly, you submitted the petition dated 08 Aug'' 1995.
The Director General, after carefully considering the points raised by you in the writ petition and the additional points made by you in your petition dated 08 Aug ''1995 and all the facts and circumstances of the case, has found that the issues raised by you do not, in any way, affect the gravity of the charge on which you were tried and found "Guilty" nor make out any case for mitigating the sentence. The Director General, has thus, rejected your petition, being devoid of merit.
During the course of hearing of this case, it was found that the D.G. had not complied the directions of this Court made vide order dated 1.6.95. In so far as from the order of rejection communicated to the Petitioner it was not revealed as to on what reasons Petitioners appeal was dismissed by him and rejection of his appeal again was done mechanically without application of mind by the D.G. personally. A direction was accordingly issued on 8.4.97 to Sri Chakraborty to produce the original order of the D.G. which had been communicated by the Dy. Director (Pers) vide letter dated 16.10.95 (Annexure V). Accordingly the record was produced from which it was revealed that the consideration of Petitioner''s appeal and the recording of reasons for rejecting the points raised by the Petitioner in his two appeals was done by the Chief Law Officer of the office of the D.G. which was only approved by the D.G.
Sri Chakravorty argued that the approval of the consideration and supply of reasons given by the Chief Law Officer for rejection of the points raised by the Petitioner in his appeal would ipso facto amount to the consideration of the appeal and rejection thereof for the supplied reasons by the D.G. On the contrary it was contended that duty cast on the D.G. as second appellate authority by Section 117(2) and 118 read with this Court''s direction-in Civil Rule No. 35(SH) of 1994 could not be performed by the Chief Law Officer. Rule 169 of B.S.F. Rules deals with the mode of submitting petitions. Its Clause (2) requires that an officer receiving a petition shall forward it to the next superior officer unless he is himself competent to give redress asked for and decides to do so. Its Clause (3) further requires the officer receiving the petition to send it to Chief Law Officer or to a Law Officer for (his) advice (on the petition). Neither in the rules nor in the Act any role has been given to be performed by the Chief Law Officer (CLO for short). Does the duty cast on him by Clause (3) of Rule 169 to give advice empowers him to himself consider and decide the appeal? This question becomes as issue in the case for the reason that except for approving the recommendations of the CLO for dismissal of Petitioner''s appeal, which is based on the discussion of the points and on the reasons of the CLO the D.G. has done nothing so as to indicate that he personally applied his mind to the points raised by the Petitioner in his appeal or that the reasons given by the CLO in his recommendatory report were examined by him and adopted to be his own reasons for the dismissal of Petitioner''s appeal for the reason of being devoid of merit.
In the light of the gravity of the matter and the nature of the provisions of Sections 117 and 118 of the B.S.F. Act and the mandatory nature of the Rules in natural justice it is very difficult for me to agree with the suggestion made by Sri Chakraborty that by approving the discussion of the case and the reasons supplied by the CLO in his recommendatory note the D.G. should be deemed to have himself discussed the case and given his reasons for dismissing Petitioner''s appeal. It will be a fatal pill to swallow.
No doubt the CLO may, in his advisory role, prepare the points for the help of the D.G. which may be helpful to him in the job of deciding the appeal but that role cannot take the shape of usurping the role of the appellate authority by the CLO himself nor it is open for the DG to surrender his own power and abdicate his duty of considering and deciding the appeal objectively to the CLO on the pretext of Rule 169(2).
Advisory role assigned to the CLO Under Rule 169(2) cannot take the shape of decision making role so as to substitute to the D.G. The job of decision making which has been assigned by Section 117 to the D.G. has to be performed by the D.G. himself and by none else, much less by the CLO, who has not been empowered by the ACT or the Rules to decide the appeal. If the role performed by the CLO in the present case is approved by this Court it will amount to the negation of the remedy given to the Petitioner u/s 117(2) and the relief which he is entitled to get from the D.G. upon his objective consideration of Petitioner''s appeal. Neither the D.G. nor his CLO could encompass the implications of the directions made by this Court in Civil Rule No. 35(SH) of 1994. As per that direction the D.G. himself was to decide the appeal and pass order thereon personally. Approval given by him to the rcommendatory note made by the CLO would not amount to correct and proper compliance of this Court''s above referred order and to the provisions of Section 117.
It was also argued on behalf of Petitioner that words "ample opportunity" in this Court''s order dated 1.6.1994 was used in the context of the argument advanced on the Petitioner''s behalf in the previous writ petition to the effect that he was not given opportunity of personal hearing by the D.G. before he dismissed his appeal wherein request for being given opportunity of personal hearing had been made. I, however, do not find force in this contention advanced on Petitioner''s behalf. Neither in the Act nor in the Rules there is any obligation cast either on the confirming authority or on the D.G. to hear the accused person personally. This Court''s order dated 1.6.94 too does not specifically say that personal hearing was to be given to the Petitioner by the D.G. before he decided the appeal. Due compliance of the direction for providing ample opportunity of hearing to the Petitioner as per this Court''s direction is fully reflected from Respondent''s letter dated 17.7.95 - Annexure-III to the petition - requiring the Petitioner to state his additional points in support of his attack against the punishment inflicted on him by the G.S.F.C. Petitioner by filing his additional petition dated 8.8.95 duly availed of that opportunity. Thus, in my opinion the direction given by this Court in Petitioner''s previous writ petition for providing him ample opportunity of hearing was fully complied. Contention that words ''ample opportunity of hearing'' used in that order signified ''opportunity of personal hearing'' is not borne out from the said order. The argument is accordingly negatived.
However in view of the discussion on the first limb of Petitioner''s argument on the point it is fully established that despite being given another chance by this Court the D.G., as the IInd appellate authority u/s 117(2) of the B.S.F. Act and being cast with the duty of review/revisibn of the findings and sentence awarded by the G.S.F.C., has failed to perform his job in the manner he had to do both as per the provision of Section 117(2) and 118 of the B.S.F. Act and as per the direction given by this Court in Civil Rule No. 35(SH) of 1994. His order, therefore, is not an order which is contemplated by Sections 117(2) and 118 of the Act. This infirmity would in my opinion invalidate the findings recorded and punishment awarded by the G.S.F.C. against the Petitioner because the findings and sentence of the G.S.F.C. are subject to a valid order of review both by the confirming authority and the IInd appellate authority under Sections 117 and 118 of the B.S.F. Act.
The point is accordingly decided in favour of the Petitioner.
In respect of point (e):
The argument of Petitioner''s Counsel on this point was vehemently opposed by the Respondent''s learned Counsel on the strength of Supreme Court judgment in Rae Bareli Kshetriya Gramin Bank Vs. Bhola Nath Singh and other, In the cited judgment the Supreme Court has observed as follows:
The judicial review is not akin to the adjudication of the case on merits as an appellate authority. The High Court, in the proceedings under Article 226 does not act as an appellate authority but exercises within the limits of judicial review to correct errors or procedural errors leading to manifest injustice or violation of principles of natural justice.
(para 6 of the report)
Above observations were made by the Supreme Court in the context that in his judgment the single Judge of the Allahabad High Court (myself) had set aside finding of the guilt of the Petitioner of that writ petition recorded by the enquiry officer and approved by the Disciplinary authority on the ground that there was no evidence to show that the alleged withdrawal of monies from the accounts of the customers of the Bank had been made by him (Bhola Nath Singh). This view was taken in the judgment under review before the Supreme Court on the premise that award of punishment by the employer to his employee on a charge which is not made out from the evidence adduced in the inquiry amounts to.victimisation which is not allowed by law.
Be that as it may, in this case too learned Counsel for the Petitioner has taken great pains by reading and re-reading the evidence adduced against the Petitioner in the G.S.F.C. to demonstrate that the charge of negligence for which the Petitioner has been punished by the G.S.F.C. is not at all made out.
In my firm belief no one should be punished on the ground of a misconduct unless the charged misconduct is clearly established from the adduced evidence against the charged person. Though I agree with the contention of Sri Purkayastha that the existence of evidence to show that the over payment of Rs. 3,000/- had occasioned because of Petitioner''s negligence is a must before he is found guilty of the charge but I refrain myself from entering the prohibited field of judicial review because of the out of bound line drawn by the Supreme Court in its above cited judgment. Since the argument of Petitioner''s counsel on this point would require me to treck on the prohibited field I decline to do so. I accordingly hold that in the view of the law laid down by the Supreme Court in Bhola Nath Singh''s case (supra) it is not open for this Court while exercising power of judicial review under Article 226 of the Constitution to look into the evidence adduced in support of the change for finding out whether or not the charge for which the Petitioner was punished is or is not made out from that evidence.
It was, also, argued by Sri Purkayastha that if this Court declines to review the evidence obtaining on the record so as to ensure that the charge on which Petitioner has been punished is made out against him or not in that case the officer would be left with no remedy because the departmental authorities who are charged with the power of review in this field have acted with a closed mind and without caring to look into this very important aspect. He, further, contended that refusal by the Court to see whether or not there exists any incriminating evidence against the Petitioner for bringing home the charge of which he has been punished where would be denial of justice and fair treatment to the Petitioner as it would amount to his being punished on a charge which is not made out, against him from the evidence tendered in support of the charge. This according to Sri Purkayastha may be violative of the very concept of Rule of law which is the theme of our Constitution as it is reflected in Articles 14, 16 and 21 thereof. He further contended that if this Court totally refuses to see the evidence to ensure whether or not the charge, for which the Petitioner has been punished by the G.S.F.C. is or is not made out against him that would amount to negation of the principles of natural justice which also guarantee that no one shall be punished without proof of his guilt.
If this argument of Sri Purkayastha is accepted the Court would be required to tread on the prohibited field of examination/assessment of the evidence which was produced at the G.S.F.C against the Petitioner in support of the charge. This being clearly barred by a binding judicial precedent, I decline to undertake the exercise of scrutiny of evidence for determining whether or not Petitioner''s guilt has been established against him or not.
The point is accordingly decided against the Petitioner for the reason that this Court would not dwell on the issue for the stated reasons.
Shri Purkayastha further argued that the findings and sentence of the G.S.F.C. after its confirmation by the confirming authority was not promulgated as per the provisions of Rule 106 hence the punishment inflicted on the Petitioner by the G.S.F.C. does not affect him.
The allegation that the findings and sentence of the G.S.F.C. were not promulgated by the Respondents in the manner and form provided by Rule 106 of B.S.F. Rules has not been established by the Petitioner. On the contrary, the record produced before me by Respondents show that Rule 106 was duly complied by promulgating the findings and sentence to the Petitioner in the required form on 10.3.92 vide signal No. A/7003. The point is, therefore, summarily rejected.
It was also argued by Sri Purkayastha that Petitioner''s right of promotion was illegally denied by Respondents though they promoted his juniors. Elaborating his contention, Petitioner''s counsel contended that before the Petitioner was formally charged with the offence for which he has been punished the order for promotions had been already issued by the Central Government, hence Petitioner who by then was not facing disciplinary proceedings in relation to the charge should have been promoted on the next higher post alongwith his juniors.
This eontention advanced on behalf of the Petitioner too had no merit. Promotion order was issued by the Central Government on 20.11.90; whereas a charge-sheet had already been served on the Petitioner on 10.11.90 charging him of the offence punishable u/s 30(b) of the B.S.F. Act. In the light of the above Petitioner could not be promoted on the next higher post and procedure of sealed cover as per Govt, of India order dated 30.1.82 had to be followed in Petitioner''s case. It is not possible to accept the contention of Sri Purkayastha that because charge sheet dated 10.11.90 did not survive and was replaced by charge sheet dated 10.10.91 hence it should be presumed that on 20.11.90 when his juniors were promoted, Petitioner was not facing any departmental disciplinary proceeding so as to be governed by the Govt. of India Circular dated 30.1.82. In my opinion replacement of old charge sheet dated 10.11.90 u/s 30(b) with the new charge sheet dated 10.10.91 u/s 40 would not amount to total absence of disciplinary proceedings against the Petitioner on 20.11.90, when the promotion order was issued by the Govt. of India. Notwithstanding the fact that charge sheet dated 10.11.90 was replaced by charge sheet dated 10.10.91, the fact, however, remains that on 20.11.90 when promotions were made on the next higher post, Petitioner was facing charges of misconduct. That factual position continued through out even with the replacement of charge sheet dated 10.11.90 by charge sheet dated 10.10.91.
I, therefore, find no force in the contention, which is accordingly turned down.
It was then argued by Sri Purkayastha that the charge which was levelled on the Petitioner and for which he has been punished by the G.S.F.C. does not fall in the scope of Section 40. The learned Counsel at the same time suggested that it is covered by Section 35(c) which charge, however, has not been made out from the evidence.
So far as the contention that it is Section 35(c) which is attracted on the allegations against the Petitioner and not Section 40 is concerned, I find that no purpose is going to be served for the Petitioner even if it be so. Sentence provided for offence u/s 35(c) is more severe as compared to that u/s 40; hence no prejudice could possibly occurred to the Petitioner if he was wrongly charged u/s 40 instead of Section 35(c). I, however, do not express any opinion on the merits of the argument for the reason that it is not required.
Next limb of the argument of Sri Purkayastha that charge levelled against the Petitioner, which comes within the purview of Section 35(c) and not u/s 40, is not made out from the evidence too cannot be accepted for the reasons already indicated in detail in connection of point (e) above. Those very reasons are applicable to repeal this argument of Petitioner''s counsel, whether charge be u/s 35(c) or u/s 40, if this Court has no power to scrutinise the evidence so as to find out whether or not the charge has been brought home it is wholly immaterial in this context to dwell upon the issue whether charge, for which Petitioner has been punished is one u/s 35(c) or u/s 40. The argument is accordingly turned down.
No other point was argued on behalf of the Petitioner.
In view of the findings recorded on points (b), (c) and (d) above, I hold that punishment awarded to the Petitioner by the G.S.F.C. has been rendered otiose due to failure of Respondents to comply with the mandatory requirements of Sections 107, 108 of the B.S.F. Act and Rules 45B and 106 of the B.S.F. Rules, which has occasioned serious prejudice to the Petitioner. In the result, despite my findings on other issues against the Petitioner, this writ petition succeeds and is allowed with cost. The G.S.F.C. finding of Petitioner''s guilt and the resultant punishment given (sentence awarded) to him vide order dated 30.11.91 (Annexure XV to the petition) and the confirmation order dated 27.2.92 (Annexure-XVa to the petition) alongwith D.G.''s order which has been communicated to the Petitioner vide letter of the Deputy Director (Pers) dated 16.10.95 (Annexure-V to the petition) are quashed. It is accordingly directed that Respondents shall give to the Petitioner his promotional seniority on the post which he occupied at the time of his trial and punishment with effect from the date when he was actually promoted on that post and not from the date as was ordered by the G.S.F.C. sentence dated 30.11.91. Petitioner shall also be entitled for his promotional claims on the next higher post or posts on the basis of his original seniority.
These directions, however, are subject to Respondent''s right to initiate fresh proceedings for punishing the Petitioner on the charge he was earlier tried provided it is permissible under the law.
Order accordingly.