Calcutta High Court (Appellete Side)
Robert Lakra vs Union Of India & Ors on 12 October, 2018
Author: Amrita Sinha
Bench: Amrita Sinha
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :- Hon'ble Justice Amrita Sinha
WP No. 18505 (W) of 2011
Robert Lakra
Vs.
Union of India & Ors.
With
WP No. 18526 (W) of 2011
Tapan Kr. Gharami
Vs.
Union of India & Ors.
For the writ petitioners :- Mr. Piyush Chaturvedi, Adv.
Mr. Mukunda Lal Sarkar, Adv.
Mr. Jitendra Kumar Ram, Adv.
For the U. O. I. in
W. P. 18505 (W) of 2011 :- Mr. Tapas Kr. Chatterjee, Adv.
For the U. O. I. in
W. P. 18526 (W) of 2011 :- Mr. Anirban Mitra, Adv.
Heard on :- 06-09-18 and 28-09-2018.
Judgment on :- 12-10-2018
Amrita Sinha, J.
The petitioners in both the writ petitions were Constables attached with 120 Battalion, Border Security Force (BSF in short). Both of them were charge sheeted on 10th January, 2011 on identical charges. Both pleaded guilty before the Summary Security Force Court (SSFC in short) and both were dismissed from service for offences committed under section 40 of the Border Security Force Act, 1968.
As the issues involved in both the writ petitioners are identical they are taken up for consideration analogously and are disposed of by this common judgment.
A charge sheet was issued against the petitioners by the Commandant 120 BN BSF on 10th January, 2011. The charge was "in connivance with civilian improperly helped smugglers to smuggle cattle through IBBF gate no. 1 of BOP CHAINA GAR". On 12th January, 2011 a proceeding was conducted by SSFC and the petitioners were dismissed from service. The petitioners filed a petition under Section 117(2) of the Border Security Force Act, 1968 before the Director General, BSF praying for withdrawal of the order of punishment. The said petition not being considered the petitioners approached before this Hon'ble Court by filing writ petition which was heard and disposed of by this Court directing the Director General to dispose of the petition filed by the petitioners within a specified time. In compliance of the order of this Hon'ble Court the said respondent considered the petition filed by the petitioners and dismissed the same being devoid of merit. The order of dismissal passed by SSFC and confirmed by the appellate authority is impugned in the instant writ petition.
The primary contention of the petitioner is that the order of punishment is a non-speaking one without any reasons and as such the same is liable to be set aside. It has been submitted that the person passing the order was not competent to act as a 'Court' and accordingly the order of dismissal is a nullity. It is submitted that the Commandant who passed the order acted in hot haste and completed the entire proceeding in a single day without giving any opportunity to the petitioners to defend their case. It is submitted that the petitioners never pleaded guilty in the proceeding and in the absence of the signature of the petitioners in the "proceedings on a plea of guilty" the proceeding itself is bad and not maintainable. It has been submitted that the concerned Commandant acted as the Court, as well as the interpreter. "The friend of the accused" was also set up by the said Commandant according to his own wish and desire without taking any consent from the petitioners. It is further submitted that the petitioners were not medically examined prior to their trial. It was contended that the petitioners were village rustic people without proper education and they were not aware about the entire proceeding and they simply put their signatures in the places where the Commandant directed them without realising the consequences thereof.
It is submitted that the Appellate Authority also did not consider the case of the petitioners in its true perspective and simply reiterated the observations made by the Commandant. At the time of passing the impugned order of punishment the rewards awarded to the petitioners were not taken into account. The earlier punishments that were taken into account at the time of passing the impugned order of dismissal were minor punishments on the charges of overstay of leave and loosing articles from the mess. The aforesaid acts of misconduct were not grave enough to be taken into consideration at the time of passing the order of dismissal. It was strenuously contended that the order of punishment was absolutely disproportionate to the charge framed against the petitioners. It is further alleged that the appellate authority at the time of consideration of the statutory petition did not afford any opportunity of hearing to the petitioners.
The petitioners rely upon unreported judgments of the Delhi High Court passed in W.P. (c) No. 2715/2000 Ex-Head Constable Rajendar Singh vs. Union of India & Ors. dated 4th May, 2012 and W.P. (c) No. 1537/1999 Devender Kumar vs. Union of India & Ors. dated 14th May, 2012 by the same Bench wherein the Hon'ble Court had been pleased to set aside the order of punishment passed by SSFC based on the alleged plea of guilt and further directed for reinstatement of the petitioner with full back wages.
The petitioners also rely upon an unreported judgment of this Court passed on 1st April, 2014 in WP No. 18661 (W) of 2008 Md. Iliyash vs. Union of India & Ors. wherein the Hon'ble Court set aside the charge sheet as well as the order passed by SSFC and directed to grant admissible service benefits to the petitioner.
Per contra, the learned Advocate appearing for the respondent authorities submitted that as per Section 70(1) of the Border Security Force Act, 1968 SSFC may be held by the Commandant of any unit of the Force and he alone shall constitute the Court. As per Section 70(2) the proceeding shall be attended throughout by two other persons who shall be officers or subordinate officers or one of either. The entire proceeding had been conducted complying with the provisions of law as well as in conformity with the principle of natural justice. He submitted that the petitioners attended the trial. The charge was read over and explained to them. The petitioners pleaded guilty. The petitioners had themselves requested for engaging a friend who was also a member of BSF being the Deputy Commandant to act as "friend of the accused".
The learned Advocate relied upon the decision reported in (2006) 7 SCC 212; State Bank of India & Ors. vs. Ramesh Dinkar Pundey on the scope of judicial review by High Court under writ jurisdiction. He referred to (2007) 1 SCC 222; A.P. SRTC vs. Raghada Siva Sankar Prasad on the issue of scope of judicial review by High Court under writ jurisdiction and also on the quantum of punishment. He also referred to the decision rendered in the case of Depot Manager, A.P. SRTC vs. B. Swami reported in (2007) 12 SCC 40 on the proposition of proportionality of penalty. He further referred to an unreported judgment of this Court passed on 2nd April, 2014 in WP No. 9747 (W) 2009 Abdul Ahmed vs. Union of India.
He submitted that the petitioners are guilty of misconduct which is prejudicial to good order and discipline of the force and accordingly the punishment awarded to the petitioners is just and proper and not liable to be interfered with by this Hon'ble Court. He further submitted that a lenient stand had been taken in case of the petitioners and they have simply been dismissed from service otherwise they had to suffer imprisonment for seven years as per provision of section 40 of the Border Security Force Act, 1968.
After hearing the submissions made on behalf of both the parties and upon perusal of the documents placed before this Court it appears that a report was received by the respondent authorities that smuggling of cattle was going on through gate no. 1 of BOP CHAINAGAR. On enquiry it was revealed that Head Constable Robert Lakra and Constable Tapan Kumar Gharami were performing their duty at the said gate on the said date at the specified time. A Court of inquiry was ordered on the self-same day to investigate into the allegation of cattle smuggling. Evidences of the accused as well as the persons who deposed as witnesses in the said case were recorded in the Record of Evidence (ROE for short). The ROE was conducted on 8th December, 2010.
During inquiry inspector Alijan Khan being the witness no. 1 specifically deposed that when he enquired from the petitioners whether they were involved in smuggling of cattle the petitioners admitted their guilt and confessed that they had permitted three pairs of cattle to cross the border without making entry in the in-out gate register. The petitioners further stated that one person viz. Tapan Barman resident of Bhamore approached them when they were performing duty at gate no. 1 and offered a sum of Rs.9,000/- for smuggling the cattle. Though initially they declined to accept the money but thereafter they expressed their consent for smuggling the cattle. He further deposed that when the said Tapan Barman returned with further six cattle the accused constable Tapan Kumar Gharami opened the gate and allowed Tapan Barman to go ahead of the fence along with six cattle without making any entry in the in-out gate register. The said witness produced the detailed report at the time of inquiry. The entire evidence was read over to the petitioners and they were provided opportunity to cross-examine the witness. Both the petitioners declined to put in any question to the said witness.
The witness no. 2 inspector S.S. Pandey specifically deposed that he talked to the villagers and farmers wherefrom he got to know that one Tapan Barman smuggled 9 to 13 cattle through gate no. 1 with the consent of the petitioners. Robert Lakra cross-examined the aforesaid witness and questioned him that though he had deposed that 9 to 13 cattle were smuggled but actually only six cattle was smuggled. In answer to the question posed by Robert Lakra the said inspector replied that he was informed by the civilians that 9 to 13 cattle were smuggled. Tapan Kumar Gharami declined to cross-examine the said witness.
DK Mandal Deputy Commandant was the witness no. 3. He deposed that he interacted with constable Tapan Kumar Gharami who confessed that he smuggled the cattle with the help of head constable Robert Lakra through gate no. 1 while on duty. They further confessed that they smuggled the cattle through one civilian viz. Tapan Barman. Both the petitioners declined to cross- examine the said witness.
Constable Vijay Kumar the witness no. 4 deposed that the petitioners were detailed for duty in the area between 6 hours to 12 hours on 16th November, 2010. The witness produced the gate in-out register as well as the log book in support of his statement. Both the petitioners refused to cross-examine the witness.
A civilian Abdul Malik deposed as witness no. 5. He specifically deposed that he had seen Tapan Barman smuggle cattle between 11 hours to 12 hours on 16th November, 2010 through gate no. 1. The petitioner declined to cross- examine the witness.
Civilian Kafiluddin deposed as witness no. 6. He stated that his son was also involved in cattle smuggling which took place on the said date and time through the said gate No. 1.
Witnesses 5 to 8 were civilians who uniformly and categorically deposed that cattle smuggling took place through gate no. 1 between 11 and 12 hours on 16th November, 2010 when and where the petitioners were on duty. The petitioners were given ample opportunity to cross-examine the witnesses who declined to cross-examine them.
After recording of the evidence the petitioners were given opportunity to make a statement if they wanted. Head Constable Robert Lakra stated that though initially they had refused to accept the offer for smuggling of cattle but ultimately they agreed to the proposal for smuggling of cattle through gate no. 1. He specifically admitted that he did not make the entry in the in-out gate register. A question was put to Robert Lakra once again whether he wished to call any witness in his favour which he categorically refused.
Similarly, Tapan Kumar Gharami was also given enough opportunity to make his statement. Tapan Kumar Gharami stated that when he was performing duty at gate no. 1 a civilian Tapan Barman approached him and offered money for smuggling cattle. He rejected the offer and sent him to Head Constable Robert Lakra. Thereafter Tapan Barman came back along with Head Constable Robert Lakra and the said Tapan Barman (Civilian) persuaded both of them for smuggling the cattle through gate no. 1 at an offered price of Rs.9,000/-. Though initially they declined the offer but thereafter both of them consented to the proposal of cattle smuggling through IBBF gate no. 1 of BOP CHAINAGAR. He further stated that when another civilian (name no known) came with six cattle he called Head Constable Robert Lakra who told him to open the gate, accordingly he opened the gate and allowed the civilian to go ahead along with six cattle. Entry to this effect was not made by Robert Lakra in civilian gate in- out register. Opportunity was given to Tapan Kumar Gharami to call for witness in his support which he declined. The entire recording of evidence was done by the Deputy Commandant in presence of an independent witness and the entire ROE was signed by both the petitioners on each and every page.
The ROE was placed by the Deputy Commandant acting as recording officer before the Commandant who acted as SSFC in accordance with the provisions of Section 70 BSF Act, 1968.
It further appears that direct questions were put to the petitioners. On the specific question as to whether they pleaded guilty of the charge both the petitioners pleaded guilty. Upon pleading their guilt the Court explained to the petitioners the meaning of their pleading guilty and ascertained that the persons understood the nature of the charge to which they pleaded guilty. The Court also informed the petitioners the general effects of the pleading of guilt and the difference in the procedure which would be valid consequent to the said plea. The Court having satisfied itself that the petitioners understood the charge and the effect of pleading guilty accepted their guilt plea and recorded the same. After plea of guilt was recorded the entire evidence was read over and explained to the petitioners and a specific question was put to the petitioners as to whether they wanted to make any statement in response to the charge or mitigation of punishment to which both the petitioners answered in the negative. The petitioners also did not produce any witness in their favour. The petitioners were afforded opportunity to cross-examine the witnesses who had deposed against them. The petitioners specifically declined to cross-examine the said witnesses. The entire evidence was recorded and the record of evidence was signed by the petitioners on each and every page. It also appears that prior to the trial the Chief Medical Officer, Sector Hospital Govindpur, Raigang medically examined the petitioners and found them fit in all respects to attend SSFC trial.
The contention of the petitioners that their signatures were not taken in the "proceedings of plea of guilty" does not hold good in the facts and circumstances of the instant case. As per Section 87 of the BSF Act, 1968 the provisions of the Indian Evidence Act, 1872 apply to all proceedings before a Security Force Court and as per Section 64 of the BSF Act, 1968 SSFC is a Security Force Court. Section 58 of the Indian Evidence Act mentions that facts which are admitted by the accused need not be proved i.e, the moment the accused admitted his guilt there was no further reason to prove that he was guilty. In the case at hand apart from the fact that the accused petitioners admitted their guilt detailed evidence of the witnesses was recorded, opportunity was given to the petitioners to disprove the allegations made against them. The petitioners thought it fit and wise to accept the guilt and face lesser punishment than suffer imprisonment for a longer period.
Moreover the provision for recording the signature of the accused at the time of recording plea of guilty was incorporated as proviso to Rule 142(2) by amendment dated 25th November, 2011. The entire incident of the instant case took place way back in November, 2010, the record of evidence was taken on 17th December, 2010 and the petitioners were dismissed from service vide order dated 12th January, 2011 long before the proviso was incorporated in the Rules. The judgments of the Delhi High Court referred to by the petitioners regarding putting in the signature of the accused in the recording of plea of guilty relates to the period after the proviso had been incorporated in Rule 142 (2) of the Border Security Force Rules 1968. Accordingly the ratio laid down in the said judgments does not have any manner of application in the instant case.
The judgment of Md. Elyash (supra) is on a separate premise. The charge and evidence of the said case also does not match with those of the instant case.
With regards to the contention raised by the petitioners that the order of dismissal was a non-speaking one and no reason whatsoever had been mentioned in the impugned order of dismissal reliance may be placed on the decision of the Hon'ble Supreme Court in Union of India & Anr. vs. Dinesh Kumar reported in (2010) 3 SCC 161. The questions framed by the Supreme Court for consideration in the appeal were:
(i) Whether the SSFC is required to give reasons in support of its verdict?
(ii) Whether the Appellate Authority under section 117 (2) is required to give reasons while considering the correctness, legality or propriety of the order passed?
The Supreme Court held that the provisions for the SSFC and the appellate authority are pari materia, more particularly in case of Rule 149 and Section 117 (2) of the Act. The Court held that reasons would not be required to be given by SSFC under Rule 149 or by the appellate authority under Section 117 of the Act. The decision passed by the Constitution Bench of the Hon'ble Supreme Court in the case of SN Mukherjee vs. Union of India 1990 (4) SCC 594 was taken into consideration by the Supreme Court while deciding the issue.
The extent of the power of judicial review by the High Court under Article 226 of the Constitution of India was under consideration by the Supreme Court in Union of India & Ors. Vs Himmat Singh Chahar reported in (1999) 4 SCC 521 wherein the court held that 'notwithstanding the finality attached to the orders of the Competent Authority in the Court Martial Proceeding the High Court is entitled to exercise its power of judicial review by invoking jurisdiction under Article 226 but that would be for a limited purpose for finding out whether there has been infraction of any mandatory provisions of the Act which has caused miscarriage of justice or for finding out whether there has been violation of the principles of natural justice which vitiates the entire proceedings or that the authority exercising the jurisdiction had not been vested with the jurisdiction under the Act. The said power of judicial review cannot be a power of an Appellate Authority permitting the High Court to re appreciate the evidence and in coming to a conclusion that the evidence is insufficient for the conclusion arrived at by the Competent Authority in Court martial Proceedings.' Within the limited scope of judicial review it is evident that in the instant case the petitioners in no uncertain terms admitted their guilt and pleaded guilty in the ROE and before SSFC. The ROE was done by the Deputy Commandant and placed before the Commandant being the SSFC who passed the order of dismissal. There does not appear to be any violation of the principles of natural justice throughout the entire proceedings. There is no iota of doubt and there are enough evidences to prove that the petitioners were actively involved in cattle smuggling across the border. The petitioners themselves pleaded guilty to avoid punishment under section 40 of the BSF Act.
It cannot be lost sight of the fact that the order of dismissal was passed on 12th. January 2011, the date of the statutory petition of both the petitioners is 10th. March 2011, the wordings of both the petitioners in the statutory petition are nearly identical and though the petitioners are residents of different places both the petitions were posted from the New Secretariat building post office, Kolkata. In fact Robert Lakra posted the statutory petition on 10th March 2011 and affirmed the earlier writ petition alleging non disposal of the same on 16th. March 2011 and Tapan Kumar Gharami posted the statutory petition on 8th April 2011 and affirmed the earlier writ petition alleging non disposal of the said petition on 11th. April 2011. All the above facts go to show that the statutory petition as well as the instant writ petition is a sheer after thought taking a calculated chance by making absolute false and frivolous allegations against the respondent authorities.
The Border Security Force Act was enacted in the year 1968 to provide for the constitution and regulation of an Armed Force of the Union for ensuring the security of the borders of India and for matters connected therewith. The statements of objects and reasons of the Act mention that the Force has been charged with the responsibility of ensuring the security of the International Border instilling a sense of security among the people living in the border areas and preventing trans-border crime, smuggling and unauthorized entry into and exit from the Indian territory.
Members of the Force are expected to possess utmost integrity, honesty, sincerity and be faithful to the motherland. Persons who do not bother to protect the interest, safety and security of their own nation and connive and indulge in illegal activities across the border in lieu of money are just not fit to remain as members of the Border Security Force. The country and the countrymen will certainly not be safe in their hands. Persons who compromise with the security of their own country does not deserve any leniency and are ought to be dealt with severely so that the same may have a deterring effect. Showing mercy and/or sympathy in such a case will amount to giving premium to such crimes which should not be tolerated under any circumstances.
WP No. 18505 (W) of 2011 and WP No. 18526 (W) of 2011 are devoid of merit and accordingly dismissed.
No order as to costs.
Urgent certified photo copy of this judgment, if applied for, be supplied to the parties expeditiously on compliance of usual legal formalities.
(Amrita Sinha, J.)