NARENDRA PRASAD Vs. UNION OF INDIA

JUDGEMENT

(1.) IN June, 1990 petitioner was selected for the post of constable in Border Security Force. After completing the training period he was posted at Srinagar. In February, 2000 he was posted at Indo Bangladesh Border at Malda. On July 29, 2000 while he was posted on duty at out post No. 2 he was charged for negligence as he could not check grazing of 25 -30 cattle of Indian origin crossing over to Bangladesh throughout post No. 2. One Mange Ram, Deputy Com -missioner/ADJ complained that he allowed 25 -30 cattle crossing Indian border to Bangladesh. He was tried by the Summary Security Force Court after having adequate opportunity of defending himself in the proceeding. Altogether six witnesses were examined by the prosecution. He was imposed a punishment of dismissal from service. He preferred an appeal which was disposed of by the appellate authority holding that the appeal had no merit and the order of dismissal was sustained.

(2.) ON analysis of evidence it appears that the charge was proved to the extent that about 25 -30 cattle were found grazing within Bangladesh border at the relevant time. Sri Ram found fresh foot print and cow dung within Indian border which would draw a logical inference that those cattle crossed over to Bangladesh from India Statement of Mange Ram was confirmed by one Satnam Singh. In the log book it was recorded that the prosecution witnesses being PW -4 and 5 through binocular saw the cattle crossing over the Indian border. However, such statement was not corroborated at the time of adducing evidence by the PW -4 and 5. The witnesses also stated that they saw cattle crossing from Kanchantar Tubewell Head to Bangladesh. It came out from the evidence that the tubewell was within the Bangladesh border. There was no allegation of making any unlawful of illegal gain while allowing the said cattle crossing over to Bangladesh region. There was also no evidence to the effect that those cattle were smuggled from India to Bangladesh. It is true that while posted at the border the delinquent should have been more vigilant. It cannot also be brushed aside that the border at the relevant time did not have any fencing and the geographical position of the border was such that from the out post No. 2 it might be difficult for the delinquent to stop the cattle grazing over to Bangladesh. Mange Ram stated that while he was heading towards outpost No. 1 he saw the cattle near outpost No. 2. He stated that those cattle were being taken along the Bandh (Dam) from India to Bangladesh. He was on a motor cycle and when he reached out post No. 2 he saw the delinquent sitting there watching the cattle crossing from India to Bangladesh. In support of his statement PW -2 stated that while the delinquent was confronted he offered an explanation that those cattle belonged to Bangladesh and they came within the Indian area for grazing and he returned them back to Bangladesh. He also stated that the civilians present there were also interrogated. They replied that no Indian cattle crossed over to Bangladesh. They also stated that the foot marks were of their cattle and not of those cattle grazing at Bangladesh border. In cross -examination PW -2 also stated that 3/4 persons of Bangladesh origin were working in the field near Indian border at the relevant time. PW -4 stated that he made log book entry at the instance of Shri Mange Ram. PW -5 who was also on duty stated that he saw the cattle running towards Bangladesh from tubewell side. It also came out in evidence that the tubewell was installed within Bangladesh territory as stated by PW -6.

(3.) ON perusal of the evidence as well as the order of the disciplinary authority so merged in the order of the appellate authority the punishment imposed upon the petitioner shock my conscience. The petitioner was a member of a disciplined force. It was having the composite code including trial of offence committed by the delinquent while discharging his official duty. The court of law, in my view, is not competent to interfere with such decision by independent appraisal of evidence. However, judicial review is permissible only when the decision making process was wrong or that the appraisal of evidence by the disciplinary authority was perverse or where the court 's conscience is shocked considering the punishment imposed on the Delinquent proportionate to the offence committed by him and proved in the proceedings. In this regard paragraph 9 of the Apex Court decision in the case of Ranjit Thakur v Union of India reported in AIR 1987 SC 2386 being relevant herein is quoted below: "9. Re : Contention (d) Judicial review generally speaking is not directed against a decision, but is directed against the "decision making process." The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an out -ragious defiance of logic then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. In Council of Civil Service Union V. Minister for the Civil Service (1984) 3 WLR 1174 (HL), Lord Deplog said