UNION OF INDIA Vs. EX CONSTABLE AMRIK SINGH

JUDGEMENT

(1.) Whether a personal hearing is required before disposing of a petition filed under section 117(2) of the Border Security Force Act, 1968 ('Act' for short) against an order of the Summary Security Force Court This in short is the question involved in this appeal filed by the Union of India.

(2.) The facts that give rise to this appeal may be noted at the outset. The sole respondent who was working as Mounted Constable in the Border Security Force ('BSF for short) was charged for an offence undersection31(b)of the Act for extracting a sum of Rs. 14,000/- from a person without proper authority. A charge-sheet was issued to the respondent. The evidence in support of the same was recorded. Thereafter a Summary Security Force Court as provided under the Act was constituted and the respondent was put on trial on 17-2-88. During the recording of the evidence, though the respondent was given an opportunity to cross-examine the witnesses he declined to do so and according to the enquiring authorities, he pleaded guilty and prayed that a lenient view may be taken. During the trial he was also given an opportunity to examine defence witnesses, if any but he did not do so. It is also averred that since the respondent pleaded guilty, Summary Security Force Court passed the orders and sentenced him to rigorous imprisonment for one year in civil prison and, also to be dismissed from service. Aggrieved by the said order the respondent preferred a petition under section 117(2) of the Act to the Director General, BSF who after going through the petition as well as 9 other records of the case rejected the same as devoid of any merit. The said decision was informed to the respondent. Aggrieved by the same, the respondent filed a petition under Articles 226 and 227 of the Constitution of India before the High Court of Punjab and Haryana. It was urged that there was violation of principles of natural justice since he had not been heard before disposing of the petition filed under section 117(2) of the Act. The High Court without going into the merits allowed the writ petition and directed a fresh hearing of the petition filed by the respondent in accordance with law after hearing him. Aggrieved by the said order the Union of India has filed the present appeal. Learned counsel for the appellants submitted that section 11 7(2) of the Act does not provide for personal hearing and that the courts, which examined the similar provisions in the Army Act, have held that the personal hearing is not be given particularly having regard to the nature of the act and the post held. The learned counsel appearing for the respondent, on the other hand, submitted that the statute does not expressly exclude a personal hearing and that an employee cannot be condemned without observing the principles of natural justice.

(3.) Before we examine the decisions cited by either side, it is necessary to refer to some of the provisions of the Act and the Army Act. The BSF is an armed force of the Union of India constituted under Item 2 of List 1 of Schedule 7 of the Constitution of India and is primarily connected with the defence of the country. The preamble states that the Act is to provide for the constitution and regulation of an Armed Force of the Union for ensuring the security of the borders of India and for matters connected therewith. Section 4 provides for constitution of an Armed Force of the Union called the Border Security Force for ensuring the security of the borders of India and subject to the provisions of the Act, the Force shall be constituted in such manner as may be prescribed and the conditions of service of the members of the Force shall be such as may be prescribed. Chapter III deals with offences and Chapter IV with punishments that can be awarded by the Security Force Court. Chapter VI deals with the constitution of the Security Force Courts and their powers to try the offences punishable under the Act. Chapter VII contains the procedure to be followed by Security Force Courts. As per the said procedure, the witnesses can be summoned and examined. Section 87 lays down that the Evidence Act, shall, subject to the provisions of the Act, apply to all proceedings before the Security Force Courts. For the purpose of this appeal it may not be necessary to go into the details of this procedure. As per Section 1,07 no finding or sentence of a Security Force Court shall be valid except so far as it may be confirmed as provided under the Act. Sections 108 and 109 deal with the authorities empowered to confirm the decision of the General Security Force Court or an ordinary Security Force Court. Under Section 117, the aggrieved person is entitled to file a petition to the concerned authority mentioned therein against the order passed by any Security Force Court. Section 117 reads as under: