NARESH KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, a Constable in Indo Tibetan Border Police (hereinafter referred as 'ITBP') has filed this writ petition to impugn the order of his dismissal passed upon his trial by Summary Force Court (for short SFC).

(2.) The facts in brief are that the petitioner was detailed for pre- training Course at Mussorie alongwith other Head Constable Virender Kumar, who was also deputed for the said training, though in the writ petition, Varinder Kumar is wrongly referred to as escort of the petitioner. The petitioner and said Head Constable Virender Kumar were selected for main VIP security course being run at N.S.G. Training Center Manesar (Gurgaon) from 5.1.1998 to 31.1.1998. The petitioner was issued two weapons i.e. pistol and Carbine 9 MM alongwith ammunition and other tools required for training during the course. While returning after completion of the course on 31.1.1998, the petitioner lost 9 MM carbine at ISBT, Delhi. As per the petitioner, he had put this carbine in suit case which he kept in the bus while he had gone to put his luggage on roof of the bus. On coming down, he found his suit case missing and thus stolen. The petitioner is the only witness to this loss and has averred these facts showing the loss of the weapon in this manner. The petitioner accordingly reported the loss and also lodged FIR. Subsequent proceeding against the petitioner followed. First a court of inquiry was ordered and followed by record of evidence under the rules. After due intimation to the petitioner, he was tried by SFC on 16.01.1999 for two charges under section 35 (b) and Section 43 of the ITBP Act for losing by neglect the said weapon and for violation of good order and discipline. The petitioner pleaded guilty to both charges and upon being found guilt was sentenced to be dismissed from service on 22.01.1999. The petitioner filed a petition against the award, the right available to him under the ITBP Act, which was ultimately rejected on 07.06.1999. Thereafter, the petitioner filed the present writ petition which has since been admitted and has now come up for hearing. From the reply filed on behalf of the respondent, it can be seen that there is not much dispute in regard to the factual position. It is stated that while returning from N.S.G. Training Center, Manesar, the petitioner lost 9MM Carbine. 600 empty cases and other equipments, which he reported after 3 days. As per the reply, the Court of inquiry was ordered on 03.02.1998 to go into the circumstances under which the arms and ammunition entrusted to the petitioner was lost. It is further stated that the petitioner was duly associated in this court of inquiry where he admitted the loss of weapon and ammunition. It is then pointed out that loss of arms and ammunition would necessarily required to be followed by disciplinary action and the same was initiated against the petitioner by directing the preparation of Record of Evidence (ROE). It is stated in the reply that the petitioner appeared before the Commanding Officer on 05.11.1998 for hearing of charge. Charge sheet was thereafter served to him on 10.11.1998 for ROE (Record of evidence). The petitioner duly participated in the recording of evidence and cross examined prosecution witnesses. The petitioner was given opportunity to make statement which he chose not to do. As per the reply, the record of evidence was thereafter put up before the disciplinary authority who ordered his trial by the SFC. It is also averred that fresh chargesheet was issued to the petitioner before his trial by SFC where he pleaded guilty to the two the charges preferred against him. Copy of the proceedings of the SFC have been annexed with the reply as Annexure R-2. It is accordingly pleaded that no case is made out for interference in the writ petition. The petitioner has filed the replication where some averment made in the reply are contested. The petitioner, however, himself has conceded that he was called as a prosecution witness in the Court of Enquiry but would still say that he was not given an opportunity as provided under Rule 174(8) of Indo Tibetan Border Police Force (hereinafter referred as 'Rules'), Rules, 1994. The petitioner pleads that as per Rule 174 (8) of the rules, he was required to be associated with the court of inquiry and was further entitled to cross examine witnesses and produce defence witnesses besides being entitled to the copy of the proceedings of the court of inquiry in terms of Rule 177 of the rules. The petitioner would contend that it is not a case of loss of arms and ammunition but the same was stolen. The petitioner also disputes the stand of the respondents that trial by court martial is a legal requirement in such cases of loss of arms and ammunition. He would rather plead that this would show pre-conceived mind of the authorities to put the petitioner to trial by SFC. Otherwise also, the petitioner has disputed the factual position as narrated by the respondents. He would rather plead that nothing could reveal against the petitioner from the record of evidence. The petitioner has also highlighted that the procedure prescribed in the Rules 44 and 45 of the Rules was not followed and as such the whole proceedings against the petitioner are thus vitiated for lack of jurisdiction.

(3.) The counsel for the petitioner has primarily raised three fold submissions to impugn his trial and the punishment awarded. It is first urged that the petitioner was not given opportunity as per his rights under Rule 174 (8) of the Rules while conducting the court of inquiry. The counsel would accordingly submit that this will vitiate the entire subsequent proceedings. In support has placed reliance on a decision of Delhi High Court in Writ Petition (C )No. 11839 of 2006 titled as Lt. Gen. Surendra Kumar Sahni versus Chief of Army Staff and others decided on 11.01.2007. The counsel would next contend that the proceedings are further vitiated and would lack in jurisdiction on account of violation of the provisions of Rules 44 and 45 of the rules. These rules relate to hearing of a charge by the Commanding Officer or other officers. Submission is that the Commanding Officer did not hear the charge before directing the record of evidence, which is a mandatory requirement and would thus vitiate all the subsequent proceedings including the trial and the punishment awarded to the petitioner. Lastly, it is pleaded that the punishment awarded to the petitioner is highly disproportionate to the nature and gravity of the offence for which he was tried and in this regard would primarily rely on the punishment awarded to the co- accused which was set aside by this Court. An order passed by this Court in respect of co-accused Head Constable Varinder Kumar, who was let off only with the loss of 5 years' service punishment, which has also been set aside by this Court is thus referred. I have perused the record placed before me by the counsel appearing for the UOI to show that the Commanding Officer conducted the hearing of a charge under Rule 45 and also the fact that each page of the court of inquiry was signed by the petitioner. The manner in which this writ petition has been drafted, would show that it was taken to be a case of departmental enquiry but not to be a trial by SFC. None of the submission made in regard to court of inquiry, record of evidence, hearing of charge are thus found averred in the writ petition. It is only when the respondent filed a reply to the writ petition and pointed out the factual position that the petitioner was put to trial by Summary Force Court and that all the procedures like holding of court of inquiry and record of evidence were conducted that the petitioner woke up to raise the challenge in the rejoinder to plead violation of these rules. The challenge thus raised in rejoinder cannot be considered a proper manner to challenge the trial proceedings. A plea raised for the first time in rejoinder cannot be validly considered. Though the pleas raised can be dismissed on this short ground but still these are being considered to see if the jurisdiction of the SFC would get affected on the grounds of any violation of the provisions as alleged. First submission made by the counsel for the petitioner is on the basis of Rule 174 (8). Rule reads as under:- " Save in the case of a prisoner of war who is still absent whenever the subject matter of inquiry is the conduct or character of a particular person, such person may be associated throughout with the inquiry and be given full opportunity of making any statement, or giving any evidence, he may wish to make or give, and of cross- examination any witness whose evidence, in his opinion, affects his character or reputation."