Tripura High Court
Sri Vijay Singh vs Union Of India on 18 December, 2019
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
WP (C) No.485 of 2014
Sri Vijay Singh
son of Patrial Singh
resident of Vill-Goneshra, P.O- Krishnanagar
P.S: Mathura, District:- Mathura
----Petitioner(s)
Versus
1. Union of India,
represented by the Secretary to the Ministry of Home
Affairs, Government of India,
North Bock,
New Delhi-1100001
2. The Inspector General
Border Security Force
Vill & P.O. Salbagan,
P.S. Airport, District-West Tripura
3. The Commandant,
158 Battalion, Border Security Force
Fatickcherra, P.O & P.S. Lembucherra
District-West Tripura.
---- Respondent(s)
For Petitioner(s) : Mr. A. Bhowmik, Adv.
For Respondent(s) : Mr. B. Majumder, C.G.C.
Whether fit for reporting : YES
HON'BLE MR. JUSTICE S. TALAPATRA
Judgment & Order(Oral)
18.12.2018
Heard Mr. A. Bhowmik, learned counsel appearing for the petitioner as well as Mr. B. Majumder, learned C.G.C. appearing for the respondents.
[2] By means of this Writ Petition, the petitioner serving as the Head Constable, has challenged the final order dated 13.01.2014 by the Commandant, 158 Bn. BSF [Annexure P-7 to the Writ Petition] and the order dated 04.09.2014 dismissing the Page 2 of 8 statutory petition filed by the petitioner to the Government of India [Ministry of Home Affairs] for review of the said order dated 13.01.2014 and setting the aside for prejudicial procedure as adopted for its manifest legality.
[3] The brief fact as relevant to the challenge is that Short Court of Enquiry (SCOI) was ordered by DIG, SHQ, BSF, Gokulnagar and the officers from the different Battalions were detailed to conduct the SCOI. The said Officers from the other Battalions were appointed according to the respondents to remove any impression of bias against the petitioner. [4] After completion of the SCOI, 195 Bn. BSF submitted the report to the said DIG, BSF, SHQ, Gokulnagar under reference No.Estt/195/SCOI/13/16459 dated 23.09.2013 [Annexure-4 to the additional counter affidavit filed by the respondent dated 23.02.2018]. Thereafter, the said DIG, SHQ, BSF, Gokulnagar passed his final remarks in terms of Rule 175 of the BSF Rules 1969 directing the Unit Commandant to take disciplinary action against the petitioner. The said order dated 28.09.2013 [Annexure R-5 to the said additional counter affidavit] has been referred by Mr. A. Bhowmik, learned counsel appearing for the petitioner who empathetically shows that the DIG, SHQ, BSF, Gokulnagar did not direct to take any action by observing the misconduct as pointed out in the report dated 23.09.2013 [Annexure R-4 additional counter affidavit] as the offence as defined by the BSF Act, 1968 under section 2 (q) which reads as under:-
(q) "Offence" means any act or omission punishable under this Act and includes a civil offence;Page 3 of 8
[5] In terms of the Rule 165 to the BSF Rules, the disciplinary power over a person, subject to the BSF Act, shall be exercised by the commandant of the battalion for Unit to which such a person is enrolled. The petitioner was under the command of Commandant 158 Bn. BSF and as such on the basis of the final remarks dated 28.09.2013 of the DIG, SHQ, BSF, Gokulnagar in the SCOI proceeding, the disciplinary proceeding was initiated against the petitioner and another Constable namely Laxam Patre by the Commandant 158 Bn. BSF. The Commandant 158 Bn BSF in exercising his authority under Rule 45 of the BSF Rules heard the petitioner on the charge under section 40 of the BSF Act for his indulging an act, prejudicial to good order and discipline of the force.
[6] According to the respondents, the petitioner was provided all due opportunities to defend his case. The petitioner in his statement asserted that he had allowed the civilian to carry timbers to the fencing gate and ordered Constable Laxman Parte to let them go with timber. Constable Laxman Parte obeyed his order as the petitioner was the Commander of the OP party. On the basis of the charges framed in tune with the section 40 of BSF Act, Short Security Force Court was constituted to try the offence of the petitioner. Before the trial commenced, the petitioner was provided a copy of the charge-sheet and records of ROE (Record of Enquiry) proceeding. He was also provided a friend of the accused namely Pradeep Kumar [ Officer] as per nomination of the petitioner to defend him during the trial. Page 4 of 8 [7] The petitioner pleaded guilty to that charge at the time of trial and he affixed his signature to this effect in the trial proceeding. Since the petitioner was provided with all the opportunities what was due to him in order to defend his case, the disciplinary proceeding was taken forward against him for his misconduct and no prejudice whatsoever has been caused to the petitioner. Even while awarding the punishment, he was sentenced a reduction in his rank on consideration of his length of service and the previous record of punishment whereas Section 40 of BSF Act provides maximum 7 years of imprisonment. After the final order dated 13.01.2014 was passed by the Commandant 158 Bn. BSF, the petitioner submitted his petition for reconsideration of sentence awarded by the SSFC. But the authority, Government of India, in the Ministry of Home Affairs by an elaborate order dated 04.09.2014 on appraisal of the evidence has observed that there is sufficient evidence on the record to substantiate the findings of the SSFC and the trial proceeding has been carried on in accordance with the BSF Act and Rules. The petitioner has been given opportunity to defend his case at all stages of the Disciplinary proceeding even despite the offence for which the petitioner was proceeded carries sentence of 7 (seven) years of imprisonment he has been leniently awarded punishment of reduction of rank. [8] The orders dated 13.01.2014 and 04.09.2014 are under challenge in the Writ Petition.
[9] Mr. A. Bhowmik, learned counsel appearing for the petitioner has quite strenuously argued that the order passed Page 5 of 8 under Rule 175 of the BSF Rules, 1969 is highly illegal and irregular. DIG, BSF, Gokulnagar was obligated to take a final decision or refer to a superior authority. According to Mr. Bhowmik, learned counsel, Unit Commandant is not the superior Authority of the DIG, BSF and as such, the reference was wholly beyond the ambit of Rule 175 of the BSF Rules. Mr. A. Bhowmik, learned counsel even did not forget to submit that DIG, BSF was the authority to take the final decision on the basis of the report dated 28.09.2013 but he had asked the Unit Commander 158 Bn. BSF to take the disciplinary action.
[10] Mr. Bhowmik, learned counsel for the petitioner has contended that no disciplinary action can be initiated under Section 40 of the BSF Act. Section 40 deals clearly with an offence, not with misconduct. According to him, from the report of the Court of Enquiry, it surfaces that there was no existence of any offence. Hence, he should have been proceeded under the Central Civil Services (Control Classification and Appeal) Rules, 1965. That apart, Mr. A. Bhowmik, learned counsel has submitted alternatively that the punishment that has been imposed is too harsh and disproportionate that interference from this court is absolutely necessary.
[11] On the other side, Mr. B. Majumder, learned C.G.C. appearing for the respondents having referred to the record of the proceeding has clearly submitted that the proceeding was carried on from the stage of the Court of Enquiry to the stage of the Short Security Force Court [SSFC] inquiry, strictly conforming to the provisions of the BSF Act and Rules. In response to the Page 6 of 8 objection raised by the petitioner, Mr. B. Majumder, learned counsel C.G.C has responded by saying that the DIG, BSF who directed the Court of Enquiry to be constituted for inquiring into the allegation has taken the final decision and he has not referred the matter to any superior authority. The decision was so taken on the basis of records. The Unit Commandant, 158 Bn. BSF was directed to start the disciplinary action against the petitioner. Accordingly, under Section 40 of the BSF Act, the charge was framed for violation of the good order and discipline and the matter was referred to the Security Court of Enquiry. Notwithstanding that, the petitioner pleaded guilty and accepted the allegation. The evidence was recorded as noted before, after affording all due opportunities to the petitioner. [12] The petitioner was found guilty and the charges were framed under Section 40 of the BSF Act. Then by the impugned order dated 13.01.2014, the petitioner was awarded the penalty sentence "To be reduced to the rank of Constable". It would be appropriate to record the findings of the Security Court of Enquiry for the purpose of reference. The Security Court of Enquiry has observed that follows:-
"After having gone through the statement of witnesses and relevant documents the court is of the opinion that on 22.08.2013 at about 0950 hours three pieces of teak timber were allowed to go ahead of fence through gate No.188 which is in the AOR of BOP Kalsimura Ex-158 Bn. BSF, Personnel on the OP duty i.e. HC Vijay Singh and Ct. Laxman Parte allowed civilian to carry timber through gate No.188.
15 Nos of teak timber worth Rs.70,000/- were seized but only three nos of tea timber were allowed by OP party for which they found to be blamed.
On what cost OP personnel allowed civilian to carry teak timber through gate No.188 is not established. There is no foul play in the seizure and there is no fault on the part of supervisory level.Page 7 of 8
The court recommends that suitable disciplinary action may be taken as per BSF act and rule against both the personnel i.e. HC Vijay Singh and Ct. Laxman Parte."
[Emphasis added] The said final order dated 13.01.2014 was taken on that basis.
[13] Mr. B. Majumder, learned C.G.C. has further submitted that the petitioner has also submitted a statutory petition to the Government of India, Ministry of Home and Affairs which has elaborately presented all the objections raised against the said order of sentence dated 13.01.2014 and on scrutiny , it was disposed of with the decision that there was no breach to the procedure or there was no failure in appreciation of the evidence by the Security Court Of Enquiry. Thus, the petition was dismissed. Mr. B. Majumder, learned C.G.C appearing for the respondents has further submitted that the BSF as the Combated force, the disciplinary action is completely governed by the BSF Act, 1968 and the BSF Rules, 1969. There is no scope to start any department proceeding under CCS (CCA) Rules, 1965. [14] Mr. B. Majumder, learned C.G.C. for the respondents has further submitted that as the trial does not commence by initiation of the preliminary fact finding enquiry, therefore, the court of enquiry instituted for that purpose cannot be treated as disciplinary action. The report of the court of enquiry provides only the basis for taking further action. Rule 66 of the BSF Rules further provides as regards the commencement of the trial. The order containing the court, the names of the officers appointed to try the accused shall be read in the hearing when the accused Page 8 of 8 shall be given an opportunity to object to against any of those officers in accordance with the Section 84 of the BSF Act. [15] Having regard to that submissions and the records produced before this court, this court is of the view that since the petitioner himself has pleaded guilty of the charges framed in terms of Section 40 of the BSF Act, the petitioner cannot be allowed to raise any objection in regard to finding of the Security Court of Enquiry and as such the challenge of the petitioner is liable to be confined to proportionality of the sentence or penalty. Having regard to the nature of the offence, this court is of the view that it is not a case where on the basis of proportionality, the order of the sentence can be interfered with. The nature of the offence is grave in nature. The offence as alleged is that the petitioner when was in the OP duty in the IBB fence gate No.188 of Kalsimura of 158 Bn. BSF 12208/2013 at about 0950 hrs gave passage to the smugglers to smuggle teak timber through Indo- Bangladesh border. That very charge has been admitted by the petitioner.
[16] Having observed thus, there is no substance in the writ petition and accordingly, the same is dismissed.
There shall be no order as to costs.
JUDGE Dipak