Rajasthan High Court - Jaipur
Ranjeet Singh vs U O I & Ors on 13 April, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B.Civil Writ Petition No. 174 / 2000
Ranjeet Singh S/o Shri Bhagwana Ram, by-caste Jat, aged about
34 years, R/o village and post Gothrabhukran via kudan district
Sikar.
----Petitioner
Versus
1. The Union of India, through Secretary, Ministry of home
Affairs, Govt. of India, New Delhi.
2. The Director General, Indo-Tibetan Border Police Force,
Block-2, CGO, Complex, Lodhi Road, New Delhi-3
3. The Inspector General, Indo-Tibetan Border Police Force
Block-2, CGO Complex, Lodhi Road, New Delhi-3
4. The Commandent Staff (Adm), Block-2, CGO Complex, Lodhi
Road, New Delhi-3.
----Respondents
_____________________________________________________ For Petitioner(s) : Mr. Rajeev Surana with Mr. Prabuddha Sharma For Respondent(s) : Mr. Ravi Chirania _____________________________________________________ HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA CAV JUDGMENT 13/04/2017 Reportable
1. The petitioner has filed this writ petition making following prayers:-
(I) may pleased to issue writ, order or direction declaring the proceedings of Summary Force Court and Sentence passed against the petitioner as illegal and void, further the orders dt.29.5.1998 (Annexure-3) and dt.21.12.99 (Annxure-5) may be quashed and set-
aside.
(2 of 9) [CW-174/2000]
(ii) may pleased to issue writ, order or direction, directing the respondents to re-instate the petitioner in ITBP Force with all consequential benefit or otherwise.
(iii) any other order deemed just and proper and in the interest of justice may also kindly be passed in favour of the petitioner.
(vi) Costs may also be awarded in favour of the petitioner."
2. Brief facts required for disposal of the present petition are that the petitioner was appointed as a Constable in Indo-Tibet Border Police Force (herein after referred to 'ITBP') on 10/09/1987 and was promoted on the post of Lance Naik. While the petitioner was posted at ITBP, it appears that a complaint was received by the Commandant against the petitioner that the petitioner had been involved in taking illegal gratification amounting to Rs.4 lac @ Rs.40,000/- from ten civilians of the Rajasthan State; Rs.40,000/- from one Rajneesh Kumar and Rs.15,000/- from one Abdul Latif during 1997. An enquiry was conducted and it was reported that the petitioner was posted at 23 rd Battalion of ITBP and had been allowed to keep his family from 01/11/1996 to 30/10/1997 and he remained at the Headquarters of the said battalion itself and there was no chance of the petitioner having been involved in the alleged incident and there was a doubt expressed of any such charge being true. However, it appears that the charge-sheet was issued to him under Section 44 (e) of the ITBP Act 1992. On the basis of the charge-sheet, Summary Force Court conducted the trial and on 29/05/1998 promulgation was declared by the Summary Force Court holding the petitioner guilty and he was removed from service with immediate effect i.e. (3 of 9) [CW-174/2000] 29/05/1998 and the suspension period was treated as dies non vide order dt.29/05/1998 itself.
3. The petitioner submitted a statutory appeal and claimed that he was only charged on the basis of complaint of civilian Rajneesh and Abdul Latif against whom criminal case had been registered and there was a charge against them of having collected Rs.4 lac from individuals. It was also stated that when the petitioner came to know of such an action, he protested and in vengeance, the said persons had also made a complaint against him regarding collecting of the said amount from them. An argument was also raised by the petitioner relating to the wrongful trial conducted by the Summary Force Court and it was pointed out that as per Rule 42 of the ITBP Rules 1994, the Summary Force Court could not have conducted the trial as it involved persons who were not subject to the Act and whose identity was known. The appellate authority vide order dt. 21/12/1999 dismissed the appeal upholding the order passed by the Summary Force Court.
4. Learned counsel for the petitioner submitted that the case could not have been tried by the Summary Force Court. He also submitted that the charge essentially required the statement of the civilians to be recorded before the enquiry officer but the Summary Force Court has acted in an arbitrary manner and proceeded to hold the petitioner guilty. It is submitted that there was no evidence for proving the charge and it is a case where there was no evidence before the Summary Force Court but in- spite of that he has been held guilty and punished. It is also submitted that no reason has been supplied before passing the (4 of 9) [CW-174/2000] punishment order. It is submitted that once he was found to be not guilty, prima facie, the Summary Court Force could not have punished him. It is also submitted that the issue relating to the jurisdiction of the Summary Force Court to try the offence was raised by him in appeal which has also not been addressed to by the appellate authority where the statutory petition was filed and therefore, the appellate order also deserves to be set aside and the petitioner is entitled for reinstatement.
5. Per-contra, learned counsel for the respondents submits that as the petitioner in his appeal has mentioned about his knowledge of the money having been collected by the concerned persons namely; Rajneesh Kumar and Abdul Latif, it has to be presumed that he was in hands and gloves with them and the Summary Force Court has rightly punished the petitioner. With regard to the issue relating to Rule 42 of the ITBP Rules 1994, it is submitted that the same is discretionary and not mandatory.
6. Heard counsel for both the parties and perused the material available on record.
7. The issue before this Court is whether the provisions of Rule 41 & 42 of the ITBP Rules 1994 are of discretionary or mandatory in nature. A look of ITBP Rules, 1994 shows that the same is part of Chapter VI of the ITBP Rules, 1994 which lays down the choice of jurisdiction between Force Court and Criminal Court. Rule 41 & 42 of the ITBP Rules, 1994 provide as under:-
41. Trial of cases either by Force Court or Criminal Court.-(l) Where an offence is triable both by a criminal court and a Force Court, an officer (5 of 9) [CW-174/2000] referred to in section 92 may,
(i) (a) where the offence is committed by the accused in the course of the performance of his duty as a member of the Force; or
(b) where the offence is committed in relation to property belonging to the Government or the Force, or a person subject to the Act; or
(c) where the offence is committed against a person subject to the Act, direct that any person subject to the Act who is alleged to have committed such an offence, be tried by a Force Court; and
(ii) in any other case, decide whether or not it would be necessary in the interests of discipline to claim for trial by a Force Court any person subject to the Act who is alleged to have committed such an offence.
(2) In taking a decision to claim an offender for trial by a Force Court an officer referred to in section 92 may take into account all or any of the following factors, namely:
(a) the offender is on active duty or has been warned for active duty and it is felt that he is trying to avoid such duty;
(b) the offender' is a young person undergoing training the offence is not a serious one and the trial of the offender by a criminal court would materially affect his training;
(c) The offender can, in view of the nature of the case, be dealt with summarily under the Act. "
"42. Cases which may not be tried by Force Court-
Without prejudice to the provisions of sub-rule (1) of rule 41, an offender may not normally be claimed for (6 of 9) [CW-174/2000] trial by a Force Court:-
(a) where the offence is committed by him alongwith any other person not subject to the Act whose identity is known; or
(b) where the offence is committed by him while on leave or during absence without leave."
8. While Rule 41 of the ITBP Rules, 1994 deals with the cases where the office is triable both by a criminal court and a Force Court, Rule 42 very specifically mentions cases which cannot be tried by the Force Court.
9. While interpreting the provisions of law, one may fall back to the various principles which have been aptly laid down by Justice GP Singh, Former Judge of MP High Court in his book on the 'Principles of Statutory Interpretation'. The first and foremost method, as indicated by him to interpret a provision of a statute, is to see the intention of the legislature. He says 'the statute is as an addict of the legislature and the conventional way of interpreting or construing a statute is to seek the intention of its maker. A statute is to be construed according to the intent of that makes it. while quoting RMD Chaman Vs. UOI: AIR 1957 (SC) 628 (Page.631). In words of Salmond Jurisprudence, 11th Edition, Page 152, "Object of interpreting a statute is to ascertain the intention of the legislature enacting it.". The duty of the judicature is to act upon the true intention of the legislature... mens or sententia legis. If the statutory provision is opened to more than one interpretation, the Court has to choose that interpretation which reads the true intention of the legislature, in other words, the (7 of 9) [CW-174/2000] legal meaning or true meaning of the statutory provision. 10 Keeping the aforesaid guidelines under consideration, if we look to the provisions of the ITBP Rules, 1994, it would be seen that these rules are specifically meant for the personnel of Indo Tibetan Border Force which is a disciplined force. Once a rule has been made, the same therefore will have a mandatory character for the purpose of the disciplined force. The rule has to be read in a mandatory form. If discretion is allowed to interpret the rule differently by different persons, result would be administrative chaos.
11. Keeping this aspect in mind, if we consider the language of Rule 42, which starts with a clause as an exception to provisions of Rule 41, it has to be given its true interpretation to be of mandatory form. The word 'claimed' also relates to the offender. Thus, the discretion does not lie with the respondents for placing the case before Summary Force Court in matters where a complaint is made or the person, who is not member of the force, is involved in the offence as alleged to have been committed by the person subject to the Act. This is so because the concerned civil staff would not be summoned by Summary Force Court and is not amenable to the ITBP Act of 1992 or the Rules of 1994
12. In view of what has been stated herein above, it is held that Rule 42 of the ITBP Rules of 1994, is of mandatory form and the word "may" used therein means "shall" and the respondents could not have conducted summary force court in a case where the offence is said to have been committed by a personnel of ITBP alongwith any other person not subject to the ITBP Act whose (8 of 9) [CW-174/2000] identity is known or where offence is committed by him while on leave or during absence without leave.
13. Taking into consideration the facts of this case where there is a charge levelled against the petitioner with regard to involvement of taking money from civilians for the purpose of appointment, while on leave conspiring with two other persons, which relates to two persons also namely; Rajneesh Kuamr and Abdul Latif, who were admittedly involved in collection of money from other civilian persons and whose evidence was essentially required during Summary Force Court, the entire proceedings undertaken by the Summary Force Court stand vitiated in law firstly on the ground of being in violation of Rule 42 of the Rules of 1994, secondly on account of not in consonance with the principles of natural justice as no evidence was recorded and thirdly the order passed by the Summary Force Court dt.29/05/1998 is also without assigning any reason. In the view of this court, the order is wholly laconic and therefore, deserves to be set aside.
14. In the statutory petition, a specific ground has been taken by the petitioner regarding jurisdiction of the Summary Force Court which has also not been addressed at the appellate stage. The appellate order dt.21/12/1999, therefore, also deserves to be set aside and the petitioner deserves to be held entitled for reinstatement in service with continuity of service and all consequential benefits. However, taking into consideration the fact that the punishment relates way back to the year 1998, the petitioner is entitled for back wages to the extent of 50% only.
15. Consequently, the writ petition stands allowed. The orders (9 of 9) [CW-174/2000] impugned dt.29/05/1998 and 21/12/1999 are hereby quashed & set aside and the respondents are directed to reinstate the petitioner with all consequential benefits including continuity of service etc. and the petitioner would be entitled to notional fixation of pay but the actual benefits would be given to him of the back wages to the extent of 50% only. The compliance of the order be made within a period of three months from the date, the certified copy of the same is submitted in the office of the respondents.
(SANJEEV PRAKASH SHARMA)J. Raghu/