Calcutta High Court (Appellete Side)
Supradip Ghosh vs Union Of India & Ors on 29 June, 2011
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
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In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas
W.P.No.15502(W) of 2009
Supradip Ghosh
v.
Union of India & Ors.
Mr.Subrata Mukerjee
Mr.Ratan Das ...for the petitioner
Mr.Amit Pan ...for the Union of India
Heard on: June 29, 2011
Judgement on: June 29, 2011
The Court:- The petitioner in this art.226 petition dated August 31, 2009 is
questioning an order dated June 23, 2009 (at p.75) rejecting his petition under s.117 of the
Border Security Force Act, 1968 against a sentence of dismissal from service dated August
14, 2008 (at p.60) of a Security Force Court held by the Commandant of 37 Bn BSF under
s.70 of the Act.
On May 31, 2008 the officiating Commandant awarded the petitioner
imprisonment in Force custody for twenty-eight days. It was a minor punishment within
the meaning of s.53 of the Act. The allegation was as follows:
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"At International border BOP Srirampur on 04 May'2008 while on ACP duty near BP
No.60/17-R w.e.f.0000 hrs. to 0600 hrs, was found negligent resulting crossing of 04 cattle from
India to Bangladesh by Smugglers."
When a head constable took steps for enforcing the punishment the petitioner
threatened to hit him. This led to a charge-sheet dated August, 11, 2008. The first charge
was the following:
"At Bn HQ Dhubulia on 31 May'2008 while he was at Commandant's orderly room in
connection with summary trial due to an offence against him, threatened to hit No.87433873 HC
Krishna Gopal, BHM with his hand when BHM started putting off his belt on hearing sentence
awarded by Commandant."
The second charge was the one concerning the incident of May 4, 2008; and the
third charge mentioned in the charge-sheet was the following:
"At Bn HQ Dhubulia on 31 May'2008 misbehaved and used insubordinate language to
No.87433873 HC Kishan Gopal BHM when he tried to convince him about discipline and BSF Act
and Rules."
In the Summary Security Force Court held by the Commandant the petitioner
participated. He was given opportunity to cross-examine thirteen witnesses. He decided
not to examine any witness in defence. On the basis of the findings of the Court that he
was guilty of the first and second charges the Commandant inflicted sentence of dismissal
from service. It was noted that in the past on June 18, 2004 he had been awarded
imprisonment in Force custody for twenty-eight days.
Feeling aggrieved by the findings and sentence the petitioner submitted the s.117
petition. By a detailed order dated June 23, 2009 the authority concerned rejected the
petition.
Mr. Mukherjee appearing for the petitioner has argued as follows. The petitioner
was not given any opportunity to appoint defence helper. No opportunity to cross-
examine the prosecution witnesses was given. There is no evidence that the petitioner
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assaulted anyone. Out of personal grudge the biased Commandant arbitrarily inflicted
the sentence of dismissal. On the facts, the punishment was grossly disproportionate.
The authority dismissing the s.117 petition passed the order mechanically without hearing
the petitioner. The Court and the authority did not give any reason in support of their
respective orders.
He has relied on S.N.Mukherjee v. Union of India, AIR 1990 SCC 1984 and Roni
Thomas v. Union of India, 2005(1)CLJ(Cal) 116 and has submitted that the punishment
should be set aside directing the respondents to re-instate the young petitioner into
employment.
Relying on Union of India v. Ex.Constable Amrik Singh, 1991 CRI L.J. 664 and Union of India & Anr. v. Dinesh Kumar, AIR 2010 SC 1551, Mr.Pan appearing for the respondents has said that the proceedings and orders do not suffer from any illegality.
There is no reason to say that the petitioner was not given opportunity of appointing defence helper. It is evident from the records and also from the order of the authority deciding the s.117 petition that the petitioner was given sufficient opportunity to appoint defence helper.
It is incorrect to say that the petitioner was not given opportunity of cross- examining the prosecution witnesses. It is evident from the proceedings copies whereof were given to the petitioner that the petitioner was given opportunity of cross-examining all the prosecution witnesses and also of examining his own witness.
It is incorrect to say that there was no evidence to support the charges. The prosecution witnesses clearly deposed in support of the charges of which the petitioner was found guilty. In any case, the question of sufficiency of evidence cannot be agitated before the Writ Court that is not supposed to substitute its own findings for that of the s.117 authority and the Court that tried the petitioner.
4The allegation that the Commandant was biased is a baseless allegation. Nothing has been shown in support of the allegation. There is no reason to accept the argument that the Commandant punished the petitioner because of a personal grudge.
In view of the decisions of the Supreme Court, the order of the s.117 authority and the findings of the Security Force Court cannot be questioned saying that no reasons were give in support thereof.
Under the provisions of the Act and the rules framed thereunder, as clearly held by the Supreme Court, neither the Court nor the authority was required to record any reason. Besides, it is wrong to say that the s.117 authority did not give reason in support of his order. The authority has passed a detailed order dealing with the contentions, evidence and other necessary facts.
The question of quantum of punishment was closely examined by the s.117 authority who did not find any reason to take a lenient view.
It has been stated in the opposition that on June 18, 2004 the petitioner was awarded imprisonment in Force custody for twenty-eighty days for committing an offence under s.40 of the Act in that he had indulged in unjust firing of 69 rounds on September 12, 2003 while he was serving in Indo-Bangladesh borders in Tripura. On May 31, 2008 he was again awarded imprisonment in Force custody for twenty-eight days for committing an offence under s.40 for his negligence while on duty on May 4, 2008.
The s.117 authority has recorded as follows:
"The petitioner behaved preposterously while being tried summarily by his Commandant and also assaulted his superior officer while he tried to perform duties assigned to him. He also denied to remain in prison cell and refused to have food though he was then kept in barrack perhaps to avoid further complications. As such, an indisciplined person is not fit for a disciplined Force like BSF and punishment of dismissal from the service awarded by the court commensurate to gravity of the offences."5
On these facts, I do not think it is a fit case for interfering in exercise of power under art.226. In my opinion, in the facts and circumstances of the case, it cannot be said that the sentence is grossly disproportionate to the gravity of proven misconduct.
For these reasons, the petition is dismissed. No costs. Certified xerox.
ab (Jayanta Kumar Biswas,J.) sm.