Calcutta High Court (Appellete Side)
Abdul Hamid vs The Union Of India And Others on 2 April, 2014
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Sambuddha Chakrabarti
W. P. No. 9747(W) of 2009
Abdul Hamid
Vs.
The Union of India and Others
For the petitioner : Mr. Subhabrata Dutta, Advocate
Ms. Soma Chowdhury, Advocate
For the Union of India : Mr. Anup Kumar Biswas, Advocate
Heard on : 11.12.2013
Judgement on : 02.04.2014
Sambuddha Chakrabarti, J.:
By the present writ petition the petitioner has inter alia prayed for a writ in the nature of Mandamus commanding the respondents to cancel and withdraw the order dated January 13, 2009 issued by the office of the respondent no. 2, for compensation and for other reliefs.
The petitioner was appointed as a Constable Driver under the Border Security Force (BSF, for short) in the year 1988. While posted at 89 Battalion in North Bengal he was asked to perform the outpost duty and was in fact posted at Gate No. 2 for performing the outpost duty on September 8, 2007.
The petitioner was subsequently proceeded against for a disciplinary action and a record of evidence was ordered for an offence committed under Section 40 of the BSF Act, 1968 on the allegation that while performing the outpost duty he had accepted a sum of Rs. 4,500/- as illegal gratification for smuggling 9 oxen from India to Bangladesh. Subsequently, a charge-sheet was issued against the petitioner.
After the evidence was taken the Summary Security Force Court (SSFC, for short) by an order dated March 1, 2008 found the petitioner guilty and awarded an order of demotion to the rank of Constable and passed an order of punishment of 89 days' of rigorous imprisonment in force custody.
Against the said order the petitioner made a detailed representation before the Director General, BSF Headquarter. The petitioner thereafter appeared before the Director General, BSF and by an order dated January 13, 2009 the petitioner's prayer has been rejected as devoid of merit.
The petitioner has filed the writ petition against the said order.
The petitioner is aggrieved by the order impugned on various reasons. According to him the order of the appellate authority was passed in a cryptic manner on the basis of surmise and conjectures and a false presumption. The authority while passing the order failed to appreciate that on the basis of the contradictory evidence on record the petitioner could not be punished. It is also the grievance of the petitioner that the statutory mandate contained in Rule 176 of the Border Security Force Rules, 1969 (The Rules, for short) was not complied with and the order is liable to be rejected on that ground alone.
The petitioner has submitted that without providing the petitioner with a copy of the report of the court of inquiry the respondents proceeded against him departmentally. The petitioner has further alleged that there was no independent witness rendering the entire proceeding bad in law.
The respondents have contested the case by filing an affidavit-in-opposition denying the allegations made by the petitioner. According to the respondents on September 8, 2007 the petitioner along with another constable was detailed to perform the observation post duty at Khurka. Two smugglers along with one Sadikul Islam arrived at the Indo-Bangladesh fencing Gate No. 2 and discussed regarding the smuggling of the cattle with the petitioner. Thereafter four smugglers arrived at the spot with nine cattle and finally crossed over to the Bangladesh site. The petitioner was performing the gate duty at that time and he did not make any entry of this movement. Two smugglers paid Rs. 4,500/- to the petitioner for allowing them to smuggle the cattle.
The respondents further contended that a court of inquiry was held to enquire into the allegations and the petitioner's conduct was found blameworthy as he had given safe passage to the smugglers at the Gate No. 2 where he was posted. Therefore, a disciplinary proceeding was initiated according to the statutory provisions of the BSF Act and Rules. The petitioner was given a hearing by the officiating Commandant and the petitioner was remanded for preparation of record of evidence to enable him to know the correct facts of the case. The statements of the witnesses were recorded in presence and hearing of the petitioner and he was given all the opportunities to cross-examine the prosecution witnesses and to make a statement in his defence and even to produce witnesses in his favour.
The concerned authority after going through the record of evidence and the proceedings decided to try the petitioner by holding a SSFC trial. He was tried by the SSFC for allegedly committing the offence under Section 40 of the BSF Act, i.e., an act prejudicial to good order and discipline of the force. The petitioner was given all the opportunities to defend his case and he had produced 10 witnesses in his defence. Prosecution also produced 10 witnesses. The petitioner was found guilty and was sentenced as mentioned before.
The petitioner's statutory appeal was also rejected. I have perused the order impugned in this petition and the records of the proceeding annexed thereto. It does not appear that there was any violation of the principles of natural justice or any statutory rule calling for any interference in the matter. The appellate authority had very specifically recorded that at the stage of recording of evidence (ROE, for short) the petitioner was given all the opportunities to produce the defence witnesses which he did and the evidence was taken within the hearing of the petitioner. One Kishan Lal Dey was also appointed as the friend of the accused during the trial. He has analyzed the evidence led by PW- 1, PW-3 and PW-6 which clearly established the fact of crossing of cattle from India to Bangladesh in the presence of the petitioner. The PW-3, Constable Teg Chand deposed that when he saw some Banladeshi nationals trying to take the cattle into Bangladesh he asked the petitioner about the incident. To this the petitioner 'hesitatingly' told him that nothing had happened and everything was normal. The petitioner asked the PW-3 to go to the culvert no.
4. The petitioner even told him that those were Bangladesh's cattle and they were being taken back to Bangladesh. From this the appellate authority had rightly reached the conclusion that there was sufficient evidence to substantiate the charge against the petitioner and even after reporting of the matter to the petitioner he did not take any action to seize the cattle or to prevent the crossing over to Bangladesh.
It further appears that after the recording of the statements of the witnesses the same were read over to the witnesses in presence of the petitioner in the language he understood it and he had signed it as correct. The cross-examination made by the petitioner of the prosecution witnesses could not demolish their credit. In fact, there was hardly any question put to these witnesses in cross-examination on the statements made by them in examination-in-chief relating to the charges against the petitioner.
At the stage of recording of evidence the petitioner opted for making a statement although he was cautioned that he was not bound to make any statement. He had specifically stated that some smugglers conspired to fix him and when he did not work according to their wishes they had made out the story. On the other hand, the witnesses produced by the petitioner as defence witnesses did not say anything which removes the possibility of the petitioner being involved in the case. The substance of the evidence of the defence witnesses is that Bangladeshi people used to come to India everyday for grazing their cattle and went back to Bangladesh with their cattle. This was the competing story which was sought to be set up by the defence that these people who were grazing the cattle and were taken over to Bangladesh, were in fact Bangladeshi nationals. From the evidence of the defence witnesses there was nothing to counter the effect of the specific evidence of the prosecution witnesses relating to the charge. Only DW-8 Sadikul Islam said that he had never given any money to the petitioner.
It has been very specifically asserted by the respondents in their affidavit that all the documents which were asked for by the petitioner had been given to him. His grievance is, however, that the report of the court of inquiry was not supplied to him which he is entitled to get in terms of the rules of the BSF.
The petitioner's grievance that the report of the court of enquiry was not supplied to him is not of much import here inasmuch as he has not stated anywhere in the petition how he has been prejudicially affected by the non-supply of the report. It is a settled principle of law that non-supply of the report will not vitiate an enquiry unless it prejudicially affects a petitioner for which there should be sufficient statement by him. That apart, the court of enquiry was held to enquire into the allegations against the petitioner and when the petitioner was found blameworthy the disciplinary proceedings were initiated against him according to the relevant Act and Rules. A copy of the order of the SSFC was definitely given to the petitioner as he craved leave to refer to the same and he has filed his representation to the appellate authority against the sentence passed by the SSFC. Thus the report of the disciplinary proceeding was supplied to him which was the foundation of the punishment against the petitioner.
The other grievance of the petitioner that no independent witness was produced at the enquiry is again without much force. The nature of the allegation being such that there was hardly any possibility of any independent witness to be produced by the prosecution in the present case. Moreover, this is not a rule of law that unless an independent witness is produced or is available the entire prosecution case must fail. Although strict rules of the Evidence Act do not apply to a disciplinary proceeding even in a criminal trial in Court the presence of an independent witness is not insisted upon as a matter of rule for the success of the prosecution case. In the case of Appabhai and Another vs. State of Gujrat, reported in AIR 1988 SC 696, the Supreme Court had held that the Court instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. Although this observation was made in the context of non- availability of independent witnesses in a criminal case its ratio and the general principle enunciated therein apply to the facts of the present case. On the contrary when the prosecution has adduced evidence sufficiently establishing the culpability of the charged employee it will not be proper to set aside the order on such plea as want of independent witness. That apart, it is a settled principle of law, decided as early as in the case of State of Orissa vs. Murlidhar, reported in AIR 1963 SC 404, that a High Court cannot sit in appeal on the finding of the departmental proceedings or re-appreciate evidence.
I find no merit in the writ petition and there is nothing to interfere with the order impugned.
The writ petition is dismissed.
There shall, however, be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.) S. Banerjee /S. Chaudhury