Ram Niwas Pandey v. Union of India and others

Judgment

1. The appellant was serving as Head Constable in the Border Security Force (B.S.F) and was on duty as Night Guard Commander on 04-09-2002 at New Water Pump House, STC, BSF, Udhampur. The other team of the night guard deployed consisted of Recruit Constable Vinay Kumar, Recruit Partap Ram, Amar Singh and Mangla Ram. On the allegation that the appellant had attempted an indecent act against Constable Vijay Kumar, offence report in terms of Rule 43 of the Border Security Force Rules, 1969 was prepared with regard to commission of offences under Section 24 (a). The appellant pleaded not guilty to the charge and was accordingly proceeded under Rule 45 of the BSF Rules.

2. After making the charge, the Commandant remanded the appellant for trial by the Summary Security Force Court (SSFC). The SSFC was convened LPASW No. 59/2016 2 by the Commandant in which, on his request, the appellant was provided the

services of Shri J. S. Bhandari, Deputy Commandant, STC, BSF Udhampur, as friend of the appellant. The evidence was recorded in which the appellant was given opportunity to cross-examine. After conclusion of the prosecution evidence the statement of the appellant was also recorded. He was given option to lead evidence in defense but he declined. On conclusion of the proceedings the SSFC recorded a finding of fact that the appellant was guilty of the charge. After convicting the appellant, he was awarded the punishment of ‘dismissal from service’.

3. Feeling aggrieved, the appellant, without availing the alternate remedy of appeal provided under the Act, straight away filed SWP No. 1078/2003, seeking inter alia quashment of the order of his dismissal from service issued by the Commandant vide his No.2031/Estt/Disc/ SSFC/RNP/02/1098- 0125 dated 23.09.2002. The writ petition was contested by the respondents, who not only met the factual averments made by the appellant in the writ petition but also produced original record before the writ Court to corroborate their written version filed in the shape of reply affidavit. The Writ Court considered the rival contentions in the light of the pleadings of both the parties and material placed on record and came to the conclusion that the appellant had failed to make out any ground warranting interference with the order of dismissal passed by the respondent. The writ petition was, accordingly, dismissed vide order and judgment dated 23.02.2016. It is this order of the Writ Court which is called in question before us in this appeal.

4. The impugned order is assailed by the appellant inter alia on the ground that the entire trial by the SSFC was conducted in a hurried manner LPASW No. 59/2016 3 and concluded within one day and therefore, there was serious miscarriage of justice, in that, the appellant was not provided an adequate opportunity to defend himself. The proceedings of SSFC have also been called in question on the ground that the Commandant, who conducted the proceedings under Rule 45 and directed the trial of the appellant by the SSFC, ultimately himself became the Judge in the trial. The proceedings of the SSFC by the Commandant were, thus, not permissible in law and clearly violative of principles of natural justice.

5. Mr. Anil Sethi, learned counsel appearing for the appellant would also urge that having regard to the nature of the allegations imputed to the appellant, punishment of dismissal from service was shockingly and strikingly disproportionate.

6. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that there is no infraction of any provision of the BSF Act and the Rules framed there under while dealing with the case of the appellant.

7. At the instance of Mr. Sethi we have carefully gone through the record produced by the respondents. Not only the provisions of Chapter VII and Chapter VIII of the BSF Rules, 1969 have been strictly adhered to but the appellant has also been provided adequate opportunity to cross-examine the witnesses. On being informed and on his choosing, Mr. J.S.Bandhari, Dy. Commandant, was appointed as friend of the appellant to defend him during the trial. From the reading of entire evidence on record, it is firmly established that the appellant had during the night of 4th September, 2002 committed an act tantamounting to disgraceful act of unnatural kind which is LPASW No. 59/2016 4 punishable under Section 24 of the BSF Act, 1968 with a punishment for a term which may extend to seven years or such less punishment as mentioned in the Act. The provisions of Section 24, which deal with disgraceful conduct, reads as under:- “24. Certain forms of disgraceful conduct.—Any person subject to this Act who commits any of the following offences, that is to say,— (a) is guilty of any disgraceful conduct of a cruel, indecent or unnatural kind; or (b) malingers, or feigns, or produces disease or infirmity in himself or intentionally delays his cure or aggravates his disease or infirmity; or (c) with intent to render himself or any other person unfit for service, voluntarily causes hurt to himself or that person, shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.”

8. From reading of Section 24, it s evident that if a person subject to BSF Act is found guilty of any disgraceful conduct of a cruel, indecent or unnatural kind, he shall be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as in the BSF Act mentioned. The question here is as to whether punishment of ‘dismissal from service’ is a punishment less than the punishment of seven years under the BSF Act. For this, we may have to refer to Section 48 of the BSF Act, which catalogues various punishments under the Act. Section 48, for facility of reference, is reproduced as under:- “48. Punishments awardable by Security Force Courts.—(1) Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by Security Force Courts according to the scale following, that is to say,— (a) death; (b) imprisonment which may be for the term of life or any other lesser term but excluding imprisonment for a term not exceeding three months in Force custody; (c) dismissal from the service; (d) imprisonment for a term not exceeding three months in Force custody; (e) reduction to the ranks or to a lower rank or grade or place in the list of their rank in the case of an under-officer; LPASW No. 59/2016 5 (f) forfeiture of seniority of rank and forfeiture of all or any part of the service for the purpose of promotion; (g) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose; (h) fine, in respect of civil offences; (i) severe reprimand or reprimand except in the case of persons below the rank of an under-officer; (j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active duty; (k) forfeiture in the case of person sentenced to dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such dismissal; (l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence for which he is convicted is made good. (2) Each of the punishments specified in sub-section (1) shall be deemed to be inferior in degree to every punishment preceding it in the above scale.”

9. As is evident from a plain reading of Section 48 (I) that ‘dismissal from service’ figures at Clause (c) of sub Section (1) whereas imprisonment for a term not exceeding three months in Force custody figures in clause (d). As is apparent from reading of sub Section (2) of Section 48, each of the punishments specified in sub-Section (1) shall be deemed to be inferior in degree to every punishment preceding it in the above scale.

10. Viewed, thus, it is beyond any pale of doubt that in terms of Section 48, the punishment of ‘dismissal from service’ is inferior in degree to the punishment of imprisonment for a term exceeding three months. As noted above, under Section 24 of the Act, a person found guilty on conviction by SSFC is liable to suffer imprisonment for a term, which may extend to seven years or such less punishment as is mentioned in the Act. The respondents, in their wisdom and having regard to the nature of the act committed by the appellant, imposed a lesser punishment i.e. punishment of dismissal from service on the appellant. The decision of the respondents to impose the punishment of dismissal from service, therefore, cannot be found fault with LPASW No. 59/2016 6 on the ground that it is violative of either Section 24 or Section 48 of the Act of 1968.

11. Lastly Mr. Sethi would urge that having regard to the nature of disgraceful act attributed to the appellant, the punishment of dismissal from service inflicted on the appellant is strikingly disproportionate to the established misconduct.

12. In view of the settled legal position, this Court while hearing appeal against the order of the Writ Court passed in the exercise of extraordinary writ jurisdiction does not sit in appeal over the decision of the disciplinary authority in respect of adequacy of the punishment to be awarded to the delinquent. It is true that this Court may pass appropriate orders, if it is of the opinion that the punishment inflicted on the delinquent is shockingly or strikingly disproportionate to the established misconduct. We have gone through the nature of allegation and the evidence brought on record to prove such allegations. We are of the considered opinion that indecent conduct of the appellant is not tolerable in any civilised society and absolutely not in the paramilitary forces where the jawans live, eat and sometimes sleep huddled in the barracks. We may make it clear that indecent act of trying to commit unnatural act by the appellant was not consensual but was forced upon Constable Vijay Kumar. It is on the complaint of Const. Vinay Kumar and his unimpeachable statement recorded during the trial by the SSFC, the appellant came to be convicted and sentenced to dismissal from service.

13. Viewed from any angle, we do not find that the penalty of dismissal from service imposed upon the appellant is shockingly disproportionate to the conduct attributed. The SSFC has considered the LPASW No. 59/2016 7 evidence on record and has come to the conclusion that the dismissal from service is the befitting punishment that is required to be imposed on the appellant for the indecent act committed by him. See V. Ramana vs. A.P.S.R.T.C. & ors, (2005) 7 SCC 338, paras (11) & (12) whereof reads thus: “11. The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.

12. To put differently unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course the punishment imposed shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority reconsider the penalty imposed”. Also in (2011) 10 SCC 244 Commandant 22nd Bn. CRPF vs. Surinder Kumar, the Apex Court has, in para (15), held as under: LPASW No. 59/2016 8 “Moreover, it appears from the impugned order that the High Court has in exercise of power of judicial review interfered with the punishment of dismissal on the ground that it was disproportionate. In Union of India vs. R.K. Sharma (AIR 2001 SC 3053), this Court has taken the the punishment should not be merely disproportionate should strikingly disproportionate to warrant interference by the High Court under Article 226 of the Constitution and it was only in an extreme case, where on the face of it there is perversity or irrationality that there can be judicial review under Articles 226 or 227 or under Article 32 of the Constitution. Since this is not one of those cases the punishment of dismissal was strikingly disproportionate or where on the face of it there was perversity or irrationality, the Division Bench of the High Court ought not to have interfered with the order of dismissal from service”.

14. The punishment awarded to the appellant for the misconduct he committed is not such as would shock the conscious of this Court. We, therefore, see no reason or justification to interfere with the impugned judgment passed by the Writ Court.

15. The appeal is found to be without merit and is, accordingly, dismissed. ( Puneet Gupta) (Sanjeev Kumar) Judge JAMMU: 05.06.2023 Anil Raina, Addl. Registrar/Secy Judge Whether the order is reportable: Yes