Constable Bhisham Singh vs Border Security Force and Union of India (UOI)

Anil Dev Singh, J.—This is a writ petition whereby the petitioner challenges the order of punishment of dismissal from service imposed on him by the respondents. The facts giving rise to the petition are as follows:-

The petitioner was a constable in the Border Security Force. The first respondent ,Border Security Force, has been arrayed through its Director General, and the second respondent Union of India, has been imp leaded through the Secretary, Ministry of Home Affairs. The petitioner joined the Border Security Force on November 5, 1992. On the trade of the incident, viz., August 7, 2000, he was discharging his duties of a constable to the BOP Tent post. H.C. Mangal Dev Barman took the roll call of he members of the force available in the BOP. After the roll call, HC Mangal Dev Barman asked them to spell out their grievances, if any. the petitioner who had also joined the roll call remonstrated by saying persons returning from last OP duty should not be deputed for the night ambush duty. HC Mangal Dev Barman clarified that due to shortage of manpower every Jawan in the BOP is required to perform ambush duty. HC Pratap Singh, who was also present, interjected and supported the views of HC Mangal Dev Barman. The intervention of HC Pratap Singh was objected to by the petitioner. In response, HC Pratap Singh stated that whatever he had said was true. Upon this the petitioner got irritated and took umbrage to the remarks of HC Pratap Singh. He threatened to kill him. HC Pratap Singh responded by saying as to why the petitioner would kill him when all he was stating was that duty had to be performed by all available persons in the BOP. The petitioner is alleged to have lost his temper and caught hold of HC Pratap Singh and pushed him ut of the roll callparade. He is also stated to have used abusive and filthy language. The brawl, however ,was stopped at the intervention of others who were present at the roll callparade. The matter was reported by HC Pratap Singh to Post Commander SI BhagwanSingh who advised him to file a written complaint. Thereafter, HC Pratap Singh went to the barrack to write a complaint. He was followed by the petitioner who started inflicting blows on him. This resulted in following injuries on the person of HC Pratap Singh:-

Injuries on the right eye accompanied by swelling due to haematoma,

Superficial cut at lower eyelid, and

Clot at nostrils accompanied by swelling around the nose.

On being beaten by the petitioner, HC Pratap Singh called out for help, whereupon some persons came inside the barrack. On seeing them, the petitioner left for ambush duty .The petitioner was recalled from ambush duty, and an evidence report under Rule43 of the BSF Rules was prepared. The petitioner was charge sheeted on August 8,2000. The charges framed against him read as follows:-

"The accused No. 92477299 Cont. Bhisham Sigh of ''E'' Coy, 145Bn BSF is charged with:-

FIRST CHARGE

BSF ACT 1968 SEC - 20(A)

ASSAULTING SUPERIOR OFFICER

in that he,

at BOP Tent Post on 7.8.2000 at about 1745 hrs, assaulted No.84005191 HC Pratap Singh of the same post causing injury on his face and head.

SECOND CHARGE

BSF ACT 1968 SEC 026

INTOXICATION

in that he,

at BOP Tent Post on 7.8.2000 at about 1745 hrs, was found in a state of intoxication."

The charges were heard by the Commandant under Rule 45 of the BSF Rules. Thereafter ,the commandant ordered record of evidence to be prepared under Rule 48 of the BSF Rules. The record of evidence was prepared from August 12, 2000 to August18, 2000. Since a prima facie offence as disclosed, the Officiating Commandant, 145BN, BSF, placed the petitioner under close arrest and convened Summary Security Force Court for trial of the petitioner. On examination of the evidence recorded at the trial ,the Summary Security Force Court found the petitioner guilty of both the charges u/s 20(a) and 26 of the BSF Act, 1968. Accordingly, the Summary Security Force Court convicted the petitioner and awarded him punishment of dismissal from service w.e.f. September 25, 2000. The proceedings of Summary Security Force Court were transmitted to the DIG, BSF, under Rule 160 of the BSF Rules. The DIG, on consideration of the mater, set aside the finding of he Summary Security Force Court with regard to the second charge without disturbing the finding on the first charge. The DIG also approved the sentence passed by the Summary Security Force Court.

The petitioner being aggrieved by the order passed by the Summary Security Force Court and the order of the DIG filed a writ petition being CWP No. 7550/2000.The writ petition, however, was withdrawn by the petitioner on December 14, 2000 as the petitioner had not exhausted the statutory remedy available to him u/s 117 of the BSF Act. On the next day, viz., December 15, 2000, the petitioner filed a statutory representation u/s 117 of the BSF Act. This representation was rejected by the DG, BSF on May 29, 2001. On rejection of the statutory representation ,the petitioner has preferred the instant writ petition.

We have heard the learned counsel for the parties as they have consented to the disposal of the writ petition at the show cause stage.

According to the learned counsel for the petitioner, the Summary Security Force Court was not competent to try the petitioner for an offence u/s 20(a) of the BSF Act. The learned counsel, in this regard, relied upon Rule 47 of the BSF Rules. Rule 47 of the BSF Rules lays down as follows:-

"47. Charges not to be dealt with summarily: A charge for an offence u/s 14 or Section 15 or Clauses (a) & (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 "

According to the aforesaid Rule, a person charged with an offence under Section20(a) of the Act cannot be dealt with summarily. The aforesaid rule does not put an embargo on the trial by a Summary Security Force court of a person charged with an offence u/s 20(a) of the BSF Act. The petitioner admittedly has not been dealt with summarily under Rule 47 of the BSF Rules, but has been tried by a Summary Security Force Court. As per Section 48 of the BSF Act, a Security Force Court is entitled to inflict punishment of dismissal from service in respect of offences committed by persons subject to the BSF Act. Under the Act, there are three kinds of Security Force courts, namely, (1) General Security Force Court, (2) Petty Security Force Court, and (3) Summary Security Force Court. Therefore, not only the petitioner could be tried by a Summary Security Force Court, but it could also order his dismissal from service on his conviction. Section 74 of the Act provides that subject to the provisions of Sub-section (2) thereof, a Summary Security Force Court can try any offence punishable under the Act. A person charged with an offence under Section20(a) of the Act, Therefore, can be tried by a Summary Security Force Court. It is not a case which falls under Sub-section (2) of Section 74 of the Act, nor it is so claimed by the petitioner. We, Therefore, do not find any infirmity in the holding of a Summary Security Force Court to try the petitioner for an offence u/s 20(a) of the Act.

It was then contended by the learned counsel for the petitioner that the punishment imposed on the petitioner is not commensurate with the gravity of the offence .We do not find any force it he submission. To insult a senior officer and to administer beating to him is a very serious charge. Basically, it is for the Security Force Court to consider as to what punishment should be imposed on a person subject to the Act who is charged with an offence. Ordinarily, a writ court does not interfere with the punishment imposed by the Security Force Court on the person who has been convicted of an offence under the Act unless the punishment is highly excessive and is not commensurate with the gravity of the offence. We do not find any reason to interfere with the sentence imposed by the Summary Security Force Court.

Finally, the learned counsel for the petitioner submitted that the sentence passed by the Summary Security force Court is vocative of Article 20(2) of the Constitution.We fail to see how Article 20(2) of the Constitution is infringed in the instant case. IT is not the case of the petitioner that even on an earlier occasion he was tried by any one of the Security force Courts and punished of the same offence for which he has been now tried and punished by the Summary Security Force Court.

We may notice that besides the aforesaid incident, the counter-affidavit also records the following two incidents for which court of enquiry was ordered against the petitioner:-

(1) One SI Ram Singh, Post Commander of BOP Kinokhal, was assaulted by the petitioner on May 31, 2000 and June 1, 2000.

(2) The petitioner misbehaved with one Sharifuddin Sikdir, a student of Kinokhal School, and asked him to provide a girl to him to satiate his sexualdesire.

In the circumstances, we do not find any ground to interfere with the impugned orders passed by the Summary Security Force Court, the DIG, BSF, and the DirectorGeneral, BSF. Accordingly, the writ petition fails and is hereby dismissed.