High Court
Case Details
WP(C) 2163/2008 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY JUDGMENT AND ORDER(ORAL) Heard Mr. K.K. Mahanta, learned Sr. counsel appearing for the petitioner. The r espondents are represented by Ms. R. Bora, the learned Central Govt. Counsel. 2. The petitioner was a constable serving in the 135 Bn. of the BSF and was inflicted with the penalty of dismissal from service on 08.09.2006, in pursuant to the guilty finding recorded by the Summary Security Force Court (referred to as (cid:28)the SSF Court (cid:29)). At the relevant time, the petitioner was serving as the D ak Runner in the Battalion Headquarter at Fatikchera and he was charged with dis honest misappropriation of property of persons subject to BSF Act. 3. The substance of the charge against the petitioner reads as:- (cid:28)at Battalion HQr Fatikchera while performing duties of Bn. Dak Runner i n the month of Aug 2005 and subsequent dates upto Jan 2006, dishonestly misappro priated about Rs.75,000/- (Rupees seventy five thousand) only belonging to follo wing personnel, handed over to him for preparation of Bank drafts for family rem ittance etc:- SF 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. CT Ravinder Kr. CT Dharmender Singh HC/Armr Surjeet Singh HC Fefa Ram CT C. Vinod kumar CT Bahadur Ram CT Mallikarjun -Rs.10,000/- -Rs.4,000/- -Rs.10,000/- -Rs.5,000/- -Rs.5,000/- -Rs.2,000/- -Rs.5,000/- 135 Bn. B CT Budh Ram CT Om Prakash CT N K Biswas CT Kh. Rohikanta Singh CT P K Choudhury CT G Gopal Dr. V S Rajan, CMO (SG) -Rs. 2,000/- -Rs.10,000/- -Rs.5,000/- -Rs.2,000/- -Rs.2,000/- -Rs.3,000/- -Rs.10,000/- ____________ Rs.75,000/- Total _________________ (cid:28) Under Rule 45 of the Border Security Force Rules, 1969 (hereinafter refe 4. rred to as (cid:28)the BSF Rules (cid:29)), a preliminary hearing on the charge was given and i n this proceeding, the charge was explained to the accused and after he pleaded guilty, the matter was remanded for trial by a SSF Court by the Commandant on 30 .06.2006. 5.
Legal Reasoning
Since it was a case of dishonest misappropriation of property covered by Section 30(b) of the Border Security Force Act, 1968 (hereinafter referred to a s (cid:28)the BSF Act (cid:29)), charge memo was furnished to the petitioner and for assistance of the charged constable, Sub (Maj) Jarnail Singh was nominated to act as the f riend of the accused. The trial of the SSF Court commenced at the Battalion Head quarter at 11.00 hrs. on 08.09.2006 and responding to the charge the accused ent ered a guilty plea and this was recorded under Rule 142 (2) and thereafter the p rocedure under Rule 143 was followed and the charged constable was sentenced. 6. Aggrieved by the sentence of dismissal from service given by the SSF Cou rt, the charged constable gave appeal under Section 17 r/w Rule 167 of the BSF R
Legal Reasoning
ules, but the same was dismissed on 06.02.2007. 7. Assailing the legality of the procedure leading to dismissal of the cons table, Mr. K.K. Mahanta, learned Sr. Counsel submits that the petitioner was den Referring to the fact that the c ied a fair opportunity to defend the charges. harged constable was trying to return the misappropriated money to his colleague s, Mr. Mahanta submits that there was no intention to commit permanent misapprop riation and accordingly the punishment is contended to be disproportionate to th e charge. 8. As the Dak Runner of the battalion, the petitioner was entrusted money b y his fellow jawans for remittance to their families through money order/bank dr afts and here the petitioner misappropriated this money. After the petitioner p leaded guilty in the preliminary stage, the matter was remanded by the Commandan t for trial by the SSF Court under Rule 45 (2) (IV) of the BSF Rules. 9. During the preliminary hearing under Rule 48, the Commandant himself did not record the evidence of the witnesses but the abstract of evidence was prepa red by an officer authorized by him under Rule 49 of the BSF Rules. In support of the charge, the petitioner’s own colleagues in their evidence had stated that the entrusted amount was usurped and their families never received the money gi ven to the Dak Runner. Some of the witnesses also testified that the petitioner assured to return their money and few prosecution witnesses acknowledged to hav e received back a portion of the misappropriated amount from the petitioner. 10. As provided under Rule 48 (3) of the BSF Rules, the petitioner was cauti oned and thereafter his statement was recorded. The following is the extract of the statement of the accused in the trial: (cid:28)STATEMENT BY THE ACCUSED: I No.95533263 Const. G.K. Deka of ’A’ Coy of 135 BN BSF state that I was doing the DR duty in 135 BN Fatikchera since June, 2003. I used to deposit hug e amounts in the Bank/post offices on various occasions as family remittance of the Jowans. During Aug, 2005 when I had come to Agartala and had to do some tran saction/Bank draft proportion for Jowans who had given me money approx. 70,000/- (Seventy thousand) only, I lost it in SBI Salbagan as somebody unknown whisked away with the bag which was containing the amount. I searched for it but could not found it. I did not informed the matter to my seniors and gradually started recouping the money from other Jawans/persons who used to hand over me the mone y for transaction or deposition in Bank/post office. I was afraid that I would lose my service, for that reason only I did not inform any official at BN HQ. La ter on 19 April, 06 I left the Fatikchera with my family without informing any o ne and proceeded to my home to arrange money. I joined back the unit on 20 Apri l, 06 I had taken the money from following which either has been returned by me or yet to returned. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. CT Ravinder Kr. CT Dharmender Singh HC/Armr Surjeet Singh CT Fefa Ram CT C. Vinod kumar CT Bahadur Ram CT Mallikarjun -Rs.10,000/- Paid back by CT Deka. -Rs.4,000/- Paid back by CT Deka. -Rs.10,000/- Paid back by CT Deka. -Rs.5,000/- -Rs.5,000/- -Rs.2,000/- -Rs.5,000/- Paid back by CT Deka. CT Budh Ram HC Om Prakash -Rs.2,000/- -Rs.10,000/- Paid back Rs.5000/- by CT Deka. -Rs.5,000/- CT N K Biswas CT Kh. Rohikanta Singh CT P K Choudhury CT G Gopal Dr. V S Rajan, CMO (SG) -Rs. 2,000/- -Rs.10,000/- CT Shyam Sundar Chamka CT Vasudev Biswas 22 Bn. HC Dinesh Reglary 22 BN -Rs.2,000/- -Rs.3,000/- -Rs.10,000/- -Rs.5000/- -Rs.8000/- 18. 19. 20. HC H.C. Deka, 22 BN Loknath PCO Fatikchera Ranjit Das Fatikchera (House Owner) Rs.2,500/- Rs.1,750/- Rs.1,250/- 21. Chhoto Tailor Fatickrhera Rs. 350/- I further state that I would return back the above mentioned amount to t he individuals at the earliest. I have done the wrong once but I would not repe at it again. (cid:29) In the notice dated 06.09.2006 issued to the petitioner, the date and pl 11. ace of the trial was mentioned and petitioner was informed of assistance of one Sub (Maj) Jarnail Singh in the trial before the SSF Court. But as earlier noted , the accused pleaded guilty and the said plea of the accused was recorded under Rule 142 (2) of the BSF Rules. The accused was given a chance to have his say on the proposed penalty a 12. nd in his statement, the petitioner admitted to committing a serious mistake bec ause of his greed and domestic compulsion and prayed for leniency by assuring th at he will make good the loss suffered by his colleagues. Thereafter the Comman dant took note of the service record of the rifleman and upon due consideration, sentenced the accused to dismissal from service, through the impugned order dat ed 08.09.2006. The resultant appeal filed by the dismissed constable was rejecte d by the appellate authority on 06.02.2007 and a subsequent representation filed by the accused on 29.10.2007 was not entertained on the ground that a second pe tition doesn’t lie on the same cause of action. 13. Challenge to disciplinary proceeding can be made only on limited ground and intervention of the writ court will not be justified unless infraction of st atutory norms noticed or fair opportunity to the charged person is denied. In t he present case, the preliminary hearing was conducted by the Commandant himself and the delinquent was permitted to cross-examine the prosecution witnesses. A lthough the petitioner contends that he didn’t admit his guilt voluntarily, cons idering the fact that same guilty plea was also entered by the delinquent during the trial in the SSF Court, I find that the recording of the guilty plea is con sistent with the stand of the petitioner, who not only admitted that he committe d mistake but also prayed for leniency by agreeing to return the misappropriated amount to his colleagues in the battalion. 14. The type of the caution to be administered to a delinquent is not left t o the discretion of the disciplinary authority in the BSF organisation, but its precise form is prescribed under Rule 48(3) of the BSF Rules. Here the record sh ows that the caution was duly administered as is prescribed by the BSF Rules. During the trial before the SSF Court, the charge was intimated and the 15. petitioner was provided with a defence assistant. Therefore, having regard to th e fact that he declined to adduce any defence evidence and entered a guilty plea , I hold that the petitioner was provided with a fair opportunity. Moreover the procedure of the trial court is found to be consistent with the statutory provis ions applicable for the charged BSF personnel. 16. Under Section 115 of the BSF Act even after verdict is given by the SSF Court, the records are required to be transmitted and a high ranking officer for reasons to be recorded is empowered to quash the SSF Court’s proceeding or alte r the sentence. Here SSF Court’s proceeding was countersigned by the DIG of the BSF on 01.11.2006 and this shows compliance of the requirement of Section 115 o f the BSF Act. Therefore no procedural infirmity is found with the impugned pro ceeding. 17. The next issue that is required to be decided is whether the punishment was disproportionate to the misconduct. We can’t ignore that petitioner was the Dak Runner of the battalion and in this capacity, his colleagues entrusted money to the accused for remittance to their respective families. But he misused the trust of his fellow jawans and appropriated the entrusted money for his own use . Although he tried to return some money, I feel that proportionality of the se ntence shouldn’t be weighed in light of the subsequent conduct of the delinquent to reimburse the loss of his colleagues. What is relevant is that the petition er was in a position of trust and by misutilizing his position he misappropriate d his colleagues’ money. In such circumstances, and having regard to the fact t hat the petitioner was a member of a disciplined force, I do not see any justifi cation to inflict any lesser punishment for the admitted charge. 18. ly dismissed without any order on cost. In view of above, I find no merit in this case and the same is according