UNION OF INDIA Vs. MOHINDER SINGH

JUDGEMENT

(1.) This Letters Patent Appeal is directed against an order of the learned Single Judge dated 24.9.1998 whereby he has quashed the Summary Security Court proceedings and the order of dismissal of Constable Mohinder Singh from service and has ordered his reinstatement in the service with all consequential benefits.

(2.) The relevant facts essential for deciding this appeal are set out as follows. Mr. Mohinder Singh, (who died and is now represented by his wife and two minor children and will be referred to hereinafter as respondent) was enrolled in the Border Security Force (BSF) as a Constable in April, 1988 and became subject to the Border Security Force Act (hereinafter the Act) and Border Security Force Rules (hereinafter the Rules). In October, 1993 he was posted in 'B' Coy of 92 Battalion BSF which was under the command of Shri Shiv Kumar Garg, Asstt. Commandant and was detailed for election duty. Some other companies of other battalions were also detailed for similar duty. All of them were under the command of one Shri U.K. Chakraborty. On 25.11.1993 the respondent was punished to undergo 14 days' rigorous imprisonment by Shri Chakraborty on the ground that he had been unauthcrisedly absent from the campus. The imprisonment was to be carried out subsequently at the Battalion Headquarters, Kalyani which was the permanent location of 92 Battalion BSF to which the respondent belonged. He alongwith Constable DineshSaklani,Sanjeev Kumar Tyagi.Vijay Bahadur Singh and Narender Singh Dalal was accused of the commission of an offence of use of criminal force to CHM L.G. Singh of 'B' Coy in which they were posted. It was alleged that on 25.11.1993 at Krishna Nagar, Meerut where the company was then located, the respondent and his companion Constables had attacked and beaten up their immediate superior CUM L.G. Singh with fists and web belts causing him injuries on his head and other parts of the body. The respondent and other assailant Constables named above, were then tried by a Summary Force Court for committing offence under Section 20(a) of the Act. They were held guilty of the offence charged with and were convicted. While the co-accused Constable Dinesh Saklani, Sanjeev Kumar Tyagi, and Narender Singh Dalal were sentenced to undergo rigourous imprisonment for 60 days each/ the respondent Constable Mohinder Singh was dismissed from service. Fourth accused Constable Vijay Bahadur Singh was, however, acquitted. Feeling aggrieved, the respondent preferred a writ petition for quashing the order of the Summary Security Force Court after his statutory appeal-was turned down by the BSF Authorities.

(3.) The respondent has challenged the order of his dismissal from service on various grounds. It was alleged by him that he was posted in 'B' Coy of 92 Battalion BSF which was duly constituted by the Central Government under Section 2(1) of the Act. The disciplinary powers upon him in terms of Rule 16(5) were to be exercised by the Commandant of the Battalion. An ad hoc arrangement was made for performing duties at elections by constituting one SB-1 'B' Battalion which was placed under charge of Shri U.K. Chakraborty, Second I/C, being the seniormost officer. SB-1 Battalion was not constituted by the Central Government. Therefore, Shri Chakraborty also did not have disciplinary power over the personnel of the company as Commandant under the Act and the Rules. On his illegal punishment for 14 days rigorous imprisonment on 25.11.1993, for his alleged few hours absence from the campus, by Shri U.K. Chakraborty/ he raised protest and intended to take legal proceeding under the Act against Shri Chakraborty and all others who were responsible for this punishment. On 14.12.1993 the respondent came to know that he alongwith three other Constables, namely, Sanjeev Kumar Tyagi, Vijay Bahadur Singh and Narender Singh Dalal was falsely involved in a case of assault on CHM L.G. Singh on 25.11.1993 at 18.30 hrs. and causing him injury by fists and web belts. This allegation was absolutely raise as the respondent was not at all present at the place of alleged incident since he had already disbursed after the roll call in the evening and had gone to the cook house with Constable Jaiprakash Dahiya for dinner. He was not questioned about this incident on 25.11.1993 or thereafter till the recording of evidence was ordered on 14.12.1993. The Commandant has ordered recording of the evidence without giving an opportunity of hearing to the respondent and applying the procedure prescribed by Rule 45. The charge against the respondent was that he had committed an offence under Section 20(a) of the Act with the allegation that the respondent alongwith his accomplices had voluntarily caused hurt to CHM- L.G. Singh. It was a civil offence punishable under Section 323, EPC. A reference to the officer empowered to convene Summary Security Force Court was required to .be made which has not been done. The explanatory memorandum which was essential under Rule-158 was also not attached and as such Section 74 and Rule 158 have been violated. In accordance with Section 70 of the Act Summary Security Force Court may be held by the Commandant of the Unit and he alone will constitute the Court but the proceedings are attended to by two other officers though they shall not be sworn or affirmed. The proceedings held against the respondent were attended by two subordinate officers Subedar Balbir Singh and SI B.P. Balodi. Shri Balodi was examined as a prosecution witness No. 4 against the respondent. The respondent has also been denied assistance at the trial and his request for providing the services of Shri Man Singh, Dy. Commandant as his friend was disallowed and Ride 157 has been contravened. The respondent expressed his second choice of Inspector Ranbir Singh as friend in the trial proceeding but even he was not given for assistance to the respondent. Instead, SI J.C. Bhowmik was given as friend of the respondent who lacked knowledge in BSF laws and Civil law and was not of any assistance to the respondent. The common charge was framed against all the 5 accused persons for their joint trial and no charge was framed against the respondent separately. The respondent and other accused were also not asked to plead to the charge separately as mandated by Rule 138. Except the complainant L.G. Singh none other 9 witnesses have deposed against the respondent. The prosecution witness Nos. 2,3,4 and 10 were all supervisory staff and their statement was formal in nature. The medical report and the blood stained clothes of the complainant were admitted into evidence without their formal proof and examination of the expert witnesses. One of the accused Vijay Bahadur Singh was acquitted whereas other three accused were awarded 60 days rigorous imprisonment each in Force custody and were allowed to be continued in service. But the respondent was sacked. The Security Force Court had discretion to award punishment as provided under Section 48 but the respondent could have been given lesser punishment like other accused persons. The sentence was promulgated on 26.3.1994 with the stipulation that the sentence will take effect after clearance and dismissal from service will be intimated to all concerned. The Sector DIG BSF signed the proceeding on 8.6.1994. A petition under Section 117 of the Act read with Rule 167 was submitted in July, 1994 challenging the proceedings and the sentence but the same was rejected by letter dated 10.6.1995. This Summary Security Force Court had no jurisdiction to try the offence. Shri Balodi, SI who attended the proceeding was disqualified being himself a witness to the prosecution. The joint charge framed did not disclose common intention of all the accused for the commission of the offence. Special finding on the basis of the sole evidence as per Rule 149 (3&4) was not recorded. Since the date from which the dismissal of the respondent from service was to take effect has not been prom ulgated, therefore, the order of dismissal has not come into effect.