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Judgment
JUDGMENTTAG-JUDGMENT
M. A. Chowdhary, J
Through the medium of the present Petition, the Petitioner has craved the indulgence of this Court in granting him the following relief(s):
“(i.) to quash Order No. Estt/SSFC-MK/l17 Bn/2003/8652-66 dated 31.08.2003 issued by the Commandant 117 Bn. BSF, by which the petitioner has been imposed sentence “to be dismissed from service” and to quash order dated 24-11-2003 issued by the Commandant by which the sentence of dismissal of the petitioner has been confirmed by the competent authority and also to quash proceedings of SSFC and charges framed against the petitioner, by issuing writ of certiorari;
(ii) to issue directions to the respondents to consider the case of the petitioner for re-instatement and to allow the petitioner to resume/perform the duties on the post of constable on which the petitioner was working prior to the dismissal from service, by issuing writ of mandamus;
(iii) to issue directions to the respondents restraining them to implement orders dated 31.08.2003 and 24.11.2003 and restraining them to treat the period w.e.f. 31-8-2003 till the date of joining of the petitioner "break in service" and restraining them to fill up the post of Constable on which the petitioner was working, by issuing writ of prohibition;
(iv) to issue directions to the respondents to release the salary of the petitioner and to give all consequential benefits of service to the petitioner to which he is entitled and also to treat the period of the petitioner w.e.f. 31-8-2003 to the date the petitioner rejoined the Unit on duty, by issuing writ of mandamus;
(v) to declare the orders dated 31.08.2003 and 24.11.2003 and proceedings of SSFC and charges framed against the petitioner as ultra vires, unconstitutional and contrary to the provisions of the BSF Act and Rules and contrary to provisions of Law, by issuing writ of mandamus;
(vi) to issue directions to the respondents to produce all the record of Summary Security Force Court proceedings before this Hon’ble Court by issuing writ of mandamus; and
(vii) any other order which this Hon’ble Court may deem fit and proper be also passed in favour of the petitioner.”
The case projected by the Petitioner, in this Petition, is that he came to be appointed as a Constable in BSF on 14th of August, 1989 and was allotted No 89499250. The Petitioner has undergone training at STC BSF, Kharka Camp, Hoshiarpur, whereafter, he was posted in Mendhar in 42 BN, from where he was transferred to 117 BN, BSF and remained posted in different places. It is stated that the Petitioner performed his duties quite efficiently and to the entire satisfaction of his superiors and there was no adverse entry in the service record of the Petitioner.
It is pleaded in the Petition that, while the Petitioner was posted in 117 BN, false and frivolous charges were framed against the Petitioner on 4th of August, 2003 by the Commandant 117 BN, BSF under Sections 20 (a), 20 (b) and 26 of the BSF Act, 1968. The allegations against the Petitioner were, firstly, with respect to using criminal force to his superior officer, namely, S.I./Adjutant R.K. Yadev of 117 BN, BSF on 4th of July, 2003; secondly, that the Petitioner was found in a state of intoxication; and thirdly, that the Petitioner, on 5th of July 2003, used threatening language to Sh. N. D. Mao, Dy. Commandant. Accordingly, charge sheets were issued, wherein the following charges were framed against the Petitioner:
1st Charge:
Section 20 (a) of BSF Act, 1968: Using criminal force to his Superior Officer- At that time, the Petitioner was at Battalion HQ 117 BN BSF, Mawpat, Shillong, on 4th of July, 2003 and at about 2025 hours, he struck with his fist on the face, shoulder and ribs of No.69911144-SI/Adjutant Ram Kumar Yadav of 117 BN, BSF.
2nd Charge:
Section-26 of BSF Act, 1968: Intoxication- The Petitioner, at Battalion HQ 117 BN BSF, Mawpat, Shillong, on 4th of July, 2003 and at about 2140 hours, was found in a state of intoxication.
3rd Charge:
Section 20 (b): Using threatening language to his Superior Officer: The Petitioner, at Battalion HQ 117 BN BSF, Mawpat, Shillong, on 5th of July, 2003, at the time of award of punishment for 14 days RI, used threatening language to Shri N. D. Mao, Dy. Commandant, by saying words to the effect that “14 DIN TO BAHUT KAM HAIN KABHI TO BAHAR NIKLUNGA AUR JAB MUJHE 50 ROUND AUR SLR DOGE TAB DEKH LUNGA” and, while being taken to Unit Quarter Guard, he also uttered the words “PANCH CHHAH KO RED DUNGA”.
The Petitioner, in his Petition, has proceeded to state that the Respondents, thereafter, kept him in close arrest, even prior to the framing of charge sheet. It is further stated that the Respondents have framed the charge sheets against the Petitioner on 4th of August, 2003, without conducting any proper inquiry in the matter as also without adhering to any provisions of the BSF Act, 1968 and the Rules made thereunder. The Petitioner has alleged that no inquiry was ever conducted against the Petitioner in his presence with respect to the aforesaid charge sheets and that, without conducting any proceedings in presence of the Petitioner, the Respondents imposed the major punishment of dismissal from service upon the Petitioner vide Order dated 31st of August, 2003.
The Petitioner claims to have preferred an appeal against the aforesaid Order dated 31st of August, 2003 before the competent authority, however, the said authority, in terms of Order dated 24th of November, 2003, upheld the punishment/ sentence awarded to the Petitioner in terms of Order dated 31st of August, 2003.
Under the shade and cover of the aforesaid facts and circumstances, the Petitioner has knocked at the portals of this Court seeking quashing of both the aforesaid Orders dated 31st of August, 2003 and 24th of November, 2003.
Objections stand filed on behalf of the Respondents, wherein it has been stated that the Petitioner has not exhausted the statutory remedy provided under Section 117 of the BSF Act 1968 read with Rule 167 of the Rules of 1969, which provide that a person subject to the BSF Act, who considers himself aggrieved by a finding or sentence of any Security Force Court, may file a Petition to the confirming authority before confirmation and one petition after confirmation to the Central Government/ the Director General or any prescribed officer superior in Command to the one who confirmed such finding of sentence and the Central Government/ the Director General or the prescribed officer may pass such orders as it or he thinks fit.
It is further stated by the Respondents that the Petitioner was enrolled as a Constable in BSF on 14th of August, 1989 and that he was posted to 117 BN BSF in February, 1991. His past records reveals that he was abrasive, reluctant to pay regards to his seniors and was not amenable to discipline. The Respondents have pleaded that during the course of his service career, the Petitioner earned as many as 05 (five) punishments, meaning thereby that he was a habitual offender and, moreover, on (03) three occasions, his absence from service was regularized by the Commandant.
With respect to the present case, the Respondents have stated that the Petitioner was found involved in the commission of offences punishable under Sections 20 (a), 20 (b) and 26 of the BSF Act, 1968. During trial, the Petitioner pleaded not guilty for the charges. The statements of all eye witnesses were also taken into account during trial, however, the Commandant made an order to conduct ‘Record of Evidence’ (ROE) in this case also, which was duly completed by Shri Avtar Singh Asst Commandant. After the completion of ‘Record of Evidence’ (ROE), the Commandant directed that the Petitioner be tried by the Summary Security Force Court (SSFC), whereafter, the Petitioner was tried by the Summary Security Force Court (SSFC) w.e.f. 7th of July, 2003 to 31st of August, 2003 under Sections 20 (a), 20 (b) and 26 of the BSF Act, 1968 and the Rules of 1969. On the basis of ROZNAMCHA entry and written report of Shri N. D. Mao, Dy. Commandant, the charges were framed against the Petitioner. Thereafter, as per Rule 160 of the BSF Rules of 1969, the Summary Security Force Court (SSFC) proceedings were forwarded to the next higher authority, i.e., the Deputy Inspector General, Sector Headquarter BSF, Shillong and, after carefully scrutinizing the proceedings, the competent authority set aside the finding of the Court in respect of the second charge in the first charge sheet, being against the weight of evidence, however, there was no change with regard to the findings of the Court on other charges in both the charge sheets as well as the sentence awarded to the Petitioner.
It has been further stated in the Objections by the Respondents that the Petitioner was granted opportunity under Rule 63 of the BSF Rules of 1969 by giving a copy of charge sheet and copy of ‘Record of Evidence’ (ROE) proceedings to call any witness during the trial whom he desires, but he did not avail the said opportunities provided to him, inasmuch as, he neither called any witness nor he appointed any person, including a Legal Practitioner, under Rule 157 of the Rules of 1969 to assist him during trial. It has been stated that in order to protect the rights of the Petitioner, a friend of the accused/ Petitioner herein, as required under Rule 157 of the Rules of 1969, was provided to him during trial, as such, there is no violation of the provisions of the BSF Act or the Rules.
Mr Rajesh Kumar Sharma, the learned Counsel appearing for the Petitioner, submits that both the charges for which the Petitioner has been held guilty and was dismissed from service were baseless, stating that the Petitioner, on an earlier occasion, had been held guilty under Section 30 of the BSF Act and then for indiscipline as he had allegedly misbehaved with a woman of ill-repute and was awarded 28 days Rigorous Imprisonment (RI) in force custody W.E.F. 8th of November, 1995 and that it was astonishing as to how a person who was in custody till 6th of December, 1995 could have gone out to a market and misbehaved with a woman of ill-repute on 20th of November, 1995 at 1000 hours. It is further submitted that the Petitioner was further alleged to have disobeyed the command given by his superior officers and was awarded 14 days Rigorous Imprisonment (RI) in force custody W.E.F. 5th of July, 2003 for commission of an offence punishable under Section 21 (2) of the BSF Act for having committed the offence on 2nd of July, 2003 and that it was also astonishing as to how when the Petitioner was already in custody, he, along with one Constable Jin Kon, had committed the offence of assaulting Adjutant Ram Kumar Yadav causing him injuries.
Learned Counsel for the Petitioner further argued that the punishment awarded to the Petitioner was perverse, inasmuch as, the provisions of the BSF Act and the Rules made thereunder have been observed in breach by the Respondents while conducting the proceedings against the Petitioner, for the reason that neither the ‘Offence Report’ was recorded in the case nor the Record of Evidence (ROE) was recorded properly; that the Petitioner was not allowed to cross-examine the witnesses produced in support of the charges and to lead defence evidence, as such, the findings recorded by the Summary Security Force Court (SSFC) with regard to the indictment of the Petitioner for the commission of the charges were improper and require to be set aside.
Mr Vishal Sharma, the learned Deputy Solicitor General of India (DSGI), appearing for the Respondents, EX-ADVERSO, argued that the Petitioner has invoked the writ jurisdiction of this Court without resorting to the statutory remedy of filing an appeal before the Director General of BSF or any other officer superior to the officer heading the Summary Security Force Court or the Central Government, as such, the present Petition is not maintainable in view of the alternative efficacious remedy available to the Petitioner. He has further argued that the ‘Offence Report’ was recorded, the Record of Evidence (ROE) was also recorded, associating the witnesses who were present on spot and also the accused/ Petitioner herein, whereafter, the Commanding Officer, on the establishment of charges in the Record of Evidence (ROE), had ordered the constitution of the Summary Security Force Court.
Learned Deputy Solicitor General of India next argued that the Summary Security Force Court, as per record, had observed all the provisions of the BSF Act and the Rules framed thereunder with regard to conducting of the proceedings. It is contended that the plea of guilt/ not-guilty was recorded, prosecution witnesses were examined and the Petitioner was permitted to cross-examine the witnesses which he had done through his next friend appointed by the Commandant and that, on being given an opportunity of leading evidence in his defence, the Petitioner had refused to lead any evidence, as such, the Petitioner cannot question the procedure adopted by the Summary Security Force Court, when it has already been observed in letter and spirit following the provisions of the BSF Act and the Rules framed thereunder, while conducting the proceedings against the Petitioner. He has also argued that the contention of the learned Counsel for the Petitioner with regard to the merits of the case cannot be gone into by this Court, inasmuch as, this Court is not sitting in appeal against the impugned Orders and it is only the limited points that can be raised before the Court with regard to observance of the provisions of the BST Act and the Rules framed thereunder for conducting the proceedings.
Heard learned Counsel for the parties, perused the pleadings on record and considered the matter.
The Apex Court, in a case titled ‘Union of India & Ors. v. P. Gunasekaran’, reported as 2015 (2) SCC 610, has held that in disciplinary proceedings, the High Court is not and cannot act as a second Court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The Apex Court has proceeded ahead to observe that the High Court can only see whether:
a. The enquiry is held by a competent authority;
b. The enquiry is held according to the procedure prescribed in that behalf;
c. There is violation of the principles of natural justice in conducting the proceedings;
d. The authorities have disabled themselves from reaching a fair conclusion by some consideration extraneous to the evidence and merits of the case;
e. The authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. The conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrided at such conclusion;
g. The disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; and
h. The finding of fact is based on no evidence.
The Apex Court further observed that under Article 226/227 of the Constitution of India, the High Court shall not:
i. Re-appreciate the evidence;
ii. Interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
iii. Go into the adequacy of the evidence;
iv. Go into the reliability of the evidence;
v. Interfere, if there be some legal evidence on which findings can be based;
vi. Correct the error of fact however grave it may appear to be; and
vii. Go into the proportionality of punishment unless it shocks its conscience.
The Apex Court in “Railway Board v. Niranjan Singh”, reported as 1969 Supreme (SC) 45, has held that the High Court does not interfere with the conclusion of the disciplinary authority, unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding. It was further held by the Apex Court that the High Court exceeded its powers in interfering with the findings of the disciplinary authority on the charge that the Respondent therein was instrumental in compelling the shutdown of an air compressor at about 08:15 AM of May 31st, 1956.
From the aforesaid judicial pronouncements, it is clear that the jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an Appellate Court. The findings of fact reached by an inferior Court or Tribunal, as a result of the appreciation of evidence, are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a Tribunal, a writ can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again, if the finding of fact is based on no evidence, that would be regarded as an error of law, which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal.
At this juncture, it will be relevant to quote the principles that have been succinctly summed up by the renowned Jurist Hon’ble Mr Justice V. R. Krishna Iyer, speaking for the Bench of the Apex Court in “State of Haryana & Anr. v. Rattan Singh”, (1977) 2 SCC 491 regarding the subject, which read as under:
“4. …. In a domestic enquiry, the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition, it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. …”
In view of the aforesaid law laid down by the Apex Court in the case of Union of India & Ors. v. P. Gunasekaran (supra), this Court, while exercising its powers under Article 226 of the Constitution of India, has to see: (i) whether the enquiry has been held by the competent authority as per the procedure prescribed in that behalf; (ii) whether there is any violation of the principles of natural justice in conducting the proceedings;
(iii) whether the authorities have disabled themselves from reaching a fair conclusion by some consideration extraneous to the evidence and merits of the case; (iv) whether the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (v) whether the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; and (vi) whether the evidence had been erroneously admitted which influenced the findings and that the findings of fact are based on no evidence. However, in the same Judgment, the Hon’ble Apex Court ordained that this Court cannot: (i) re-appreciate evidence; (ii) interfere with the conclusion of the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy and the reliability of the evidence; (iv) interfere, if there be some legal evidence on which the findings can be based; (v) correct the error of fact, however grave it may appear to be; and (vi) go into the proportionality of punishment, unless it shocks its conscience.
Having regard to the aforesaid principles of law laid down by the Apex Court on the subject involved in this Petition and on a perusal of the record produced by the Respondents, it appears that the contentions raised by the learned Counsel for the Petitioner with regard to the merits of the case, particularly the factual background enumerated by him in his submissions, cannot be gone into, and that the maximum that this Court can consider is as to whether the enquiry/ trial has been conducted by the Summary Security Force Court in accordance with the provisions of law.
On a keen perusal of the evidence produced by the Respondents, from the recording of ‘Offence Report’ and Record of Evidence (ROE), reference to the Summary Security Force Court and the conducting of the proceedings by the Summary Security Force Court, what gets revealed is that the authorities have followed the procedure as prescribed under the BSF Act and the Rules framed therein. The Petitioner, as per his own admission made through his Counsel, had already been held guilty for various charges prior in time and had been sentenced to Rigorous Imprisonment (RI) on prior occasions, which shows that the Petitioner had been a habitual offender. Furthermore, the impartiality by which the proceedings have been conducted and considered by the disciplinary authority as against the Petitioner can be gauged, from the fact that out of the three charges proved against the Petitioner by the Summary Security Force Court, one charge that of intoxication against the Petitioner had been reviewed and finding to that extent had been set aside. The other two charges with regard to assaulting Adjutant, SI Ram Kumar Yadav, by using of criminal force on 4th of July, 2003 at about 2025 hours at BN Headquarter, Mawpat, Shilling and on the next date, i.e., 5th of July, 2003, threatening Deputy Commandant, N. D. Mao, while being taken to Unit Quarter Guard, had been proved. From the perusal of the record, it transpires that the plea of guilt was recorded by the Summary Security Force Court, evidence of all the witnesses was recorded in presence of the accused/ Petitioner herein and his next friend and all his questions were put to the witnesses by way of cross-examining them. The Petitioner, on conclusion of the evidence against him, was asked to lead any defence evidence, however, he refused to lead any evidence and the findings were recorded by the Summary Security Force Court thereafter, indicting the Petitioner for the commission of all the three charges, however, the charge of intoxication was reviewed by the disciplinary authority and findings recorded thereon were discarded. The contention on behalf of the Petitioner that some important witnesses were withheld and not examined during the proceedings of the Summary Security Force Court cannot be accepted, simply for the reason that the Petitioner, who could have examined those witnesses to repudiate the charges against him, nevertheless, choose not to ask for their examination on his behalf, in defence.
Applying the law laid down by the Apex Court, as discussed hereinabove, and the guidance sought from that, this Court is of the considered opinion that the Petitioner had been afforded a reasonable opportunity of being heard, thereby protecting all his rights which were available to him in accordance with the provisions of the BSF Act and the Rules made thereunder. Insofar as the proportionality of quantum of punishment with respect to the proved charges against the Petitioner is concerned, having regard to the fact that the Petitioner had been a habitual offender, having physically assaulted his superior Adjutant and threatened his Deputy Commandant, these are the charges which justify the dismissal of the Petitioner from service and striking off his name from the Force. The punishment of dismissal, thus, cannot be said to be disproportionate, in any manner whatsoever.
For all the aforesaid reasons, this Court is of the opinion that the Petitioner has failed to make out a case for the indulgence of this Court in interfering with the impugned Orders issued by the Respondents. The instant Petition, thus, fails and is, accordingly, dismissed along with the connected CM(s). Interim direction(s), if any subsisting as on date, shall stand vacated. No order as to costs.
Before parting with this Petition, it shall be relevant to note here that, admittedly, it is also a fact that the Petitioner had not resorted to the statutory remedy of filing an appeal to the competent authority VIZ. the Director General of BSF or any other officer superior to the officer heading the Summary Security Force Court or to the Central Government. The Petitioner, however, if so advised, may file an appeal against the impugned Order(s) issued by the Respondents for his dismissal from service before the competent authority, as prescribed under the BSF Act and the Rules made thereunder. It is also made clear that in the event the Petitioner avails the aforesaid remedy of appeal for challenging the impugned Orders, the time spent by him in prosecuting the present Writ Petition before this Court shall not come in the way of the Petitioner and that the same shall be excluded for purpose of limitation, if any.
Record produced is ordered to be returned to the Respondents through their Counsel.