Rajasthan High Court - Jodhpur
Bhanwar Lal vs Uoi & Ors on 2 September, 2016
Author: Sandeep Mehta
Bench: Sandeep Mehta
S.B.C.W.P.No.1346/2003
Bhanwar Lal Vs. Union of India & ors.
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
S.B.CIVIL WRIT PETITION NO.1346/2003 PETITIONER:
Bhanwar Lal S/o Shri Ramuram ji aged about 32 years, R/O Village - Ramdawas, Post - Ramdawas Kalan District - Jodhpur (Rajasthan).
Vs. RESPONDENTS:
1. Union of India Through the Secretary, Ministry of Home Affairs, New Delhi.
2. Director General, Border Security Force (BSF) (Ministry of Home Affairs) Government of India, 10 CGO Complex, Lodhi Road, New Delhi 110 003
3. Inspector General, Border Security Force (BSF) HQ Sant Nagar, Srinagar (J & K)
4. Dy.Inspector General, HQ C-1 Ops-III Sector, Border Security Force (BSF), Anantnag (J & K)
5. Commandant 77 BN Border Security Force (BSF) Kokernag (J & K) Date of order : 2.9.2016 HON'BLE MR. JUSTICE SANDEEP MEHTA Mr.SK Malik, for the petitioner.
Mr.DP Dhaka, for the respondents.
<><><> By way of this writ petition, the petitioner, a dismissed Constable from the BSF, has approached this Court for assailing the following orders:
(1) the order (Annex.P/2) dated 19.6.2002 passed by SSFC, whereby the penalty of dismissal from service was imposed upon the petitioner.
(2) the order (Annex.P/3) dated 12.8.2002, whereby the S.B.C.W.P.No.1346/2003 Bhanwar Lal Vs. Union of India & ors.2
order imposing penalty was promulgated.
(3) the order (Annex.P/5) dated 8.11.2002, whereby the appeal preferred by the petitioner to the appellate authority against the order imposing penalty was dismissed.
Shri S.K.Malik, learned counsel for the petitioner, vehemently urged that the disciplinary proceedings were not conducted in a fair and lawful fashion. The SSFC acted in an arbitrary and highhanded fashion and fraudulently & unjustifiably recorded the petitioner's plea of guilt during the arraignment proceeding. The petitioner was in custody at that time and thus, the plea of guilt was recorded under duress and should have been discarded. He further urged that the SSFC being the disciplinary authority, without any justification, imposed the extreme penalty of dismissal from service upon the petitioner for a trivial aberration/indiscretion. He further urged that the appellate authority did not consider the petitioner's appeal in a pragmatic manner and perfunctorily rejected the same without assigning any reasons. He relied upon the judgment rendered by Delhi High Court Judgment in the case of Union of India & Ors. Vs. B.R.Sharma reported in 2002(1) Forces Law Judgment 53 and submitted that the Hon'ble Delhi High Court examined charges almost similar to the one, which were attributed to the petitioner and held that the extreme penalty of dismissal from service on the charge of misbehavior with a colleague's wife is disproportionate to the charge. He thus urged that the writ petition deserves to be S.B.C.W.P.No.1346/2003 Bhanwar Lal Vs. Union of India & ors.
3 accepted and whilst setting aside the impugned orders, the petitioner be directed to be reinstated in service with all consequential benefits.
Per contra, Shri D.P.Dhaka associate to learned ASG Shri A.K.Rajvanshy appearing for the respondents urged that the petitioner, who was serving in the disciplined force like BSF was charged for misbehaving and trying to molest a colleague's wife in the night time. Firstly, he gave false information to Bahadur Singh, the husband of the lady and managed to lure him away from the room where the lady was sleeping. Then, the petitioner entered the room and was trying to climb on to the cot on which the lady was sleeping. However, he could not succeed in his evil design because the lady raised an alarm upon which one Bhim Singh Constable with his family members were also sleeping in the same room woke up and caught the petitioner at the spot.
He submitted that the charges were extremely grave in nature. Unimpeachable evidence was led in the preliminary inquiry and consequently, when the SSFC trial was commenced, the petitioner realized that he could face a long term of imprisonment. Thus, he made an endeavor to escape the looming sentence of imprisonment by voluntarily pleading guilty and requested to be pardoned.
He further urged that the appellate authority, exhaustively considered, the statutory petition submitted by the petitioner against the order imposing penalty and dismissed the same by a detailed and well reasoned order. The order dated S.B.C.W.P.No.1346/2003 Bhanwar Lal Vs. Union of India & ors.
4 8.11.2002, which is assailed in the writ petition is just a communication of the decision of the appellate authority. He further submitted that in his two statutory petitions submitted on 8.7.2002 and 30.8.2002, the petitioner did not raise any protest that his confession had been recorded under threat or duress. Rather, in the first statutory petition dated 8.7.2002, the petitioner pleaded that his first mistake should be pardoned and a lenient view be taken by retaining him in service. He relied upon the judgments rendered by the Hon'ble Supreme Court in the case of Ex.Constable Ramvir Singh Vs. Union of India & Ors. reported in AIR 2009 (Supl) SC 33 and the judgment rendered by Hon'ble Delhi High Court in the case of Union of India & Ors. Vs. R.K.Sharma reported in AIR 2001 SC 3053 and urged that the power of the writ Court to interfere in the quantum of punishment is extremely limited and considering the heinous nature of charges attributed to the petitioner, the only justified punishment was dismissal from service. He thus urged that the writ petition is devoid of merit and should be dismissed.
I have heard the arguments advanced by the learned counsel for the parties and have gone through the material available on record.
The first and the foremost contention which was advanced by Shri Malik against the impugned orders was that the petitioner's plea of guilt was recorded by the SSFC under threat and duress and thus, was required to be eschewed from consideration.
S.B.C.W.P.No.1346/2003
Bhanwar Lal Vs. Union of India & ors.
5 I have examined the entire material placed on record by the petitioner as well as the original record of the statutory petition filed by the petitioner before the appellate authority. A preliminary inquiry was held against the petitioner on the charge that firstly he gave misinformation to his colleague Constable Bahadur Singh and managed to lure him away in the night time of 8.5.2002 and then entered into his quarter & tried to climb on the cot where Smt.Geeta W/o Bahadur Singh was sleeping. An alarm was raised by the lady. The petitioner was apprehended at the spot. Bahadur Singh immediately submitted an FIR to the DIG whereupon, the petitioner was arrested and a preliminary inquiry was held. In the preliminary inquiry, Bahadur Singh, his wife Smt.Geeta and the Constable Bheem Singh gave unflinching testimony implicating the petitioner. Thereafter, the SSFC was convened at the request of the petitioner and in those proceedings, the petitioner pleaded guilty and requested to be pardoned. At no point of time, before alleged statutory petition dated 30.8.2002, which has been filed alongwith the instant writ petition, was any objection raised by the petitioner that the plea of guilt was recorded by the SSFC under threat, duress or coercion. The respondents, have specifically asserted that the petitioner could be sentenced to 7 years' rigourous imprisonment alongwith dismissal on the charge for which, he was proceeded against. The petitioner obviously realized that he was fighting against odds after the evidence was recorded in the preliminary inquiry and thus, in order to escape the sentence of imprisonment, he seems to S.B.C.W.P.No.1346/2003 Bhanwar Lal Vs. Union of India & ors.
6 have taken a well thought of decision to plead guilty so as to escape imprisonment in bargain. Precisely for this reason, he pleaded guilty, requested to be pardoned and escaped sentence of imprisonment. The detailed statutory petition (Annex.P/4) which has been filed alongwith the instant writ petition bears the date 30.8.2002 but does not show any acknowledgment.
On going through the original record of the petitioner's statutory petition which was submitted for perusal by Shri Dhaka, two handwritten statutory petitions forwarded by the petitioner to the appellate authority are available therein. The first application is dated 8.7.2002 and the second application bears the date 30.8.2002. Both the applications were shown to Shri Malik learned counsel for the petitioner during the course of the hearing of the writ petition and he had no option but to agree that both the statutory petitions were forwarded by the petitioner. The detailed statutory petition, which has been filed alongwith the writ petition does not form a part of record of proceedings of the appellate authority and thus, it has to be presumed that the said petition was never submitted to appellate authority. As mentioned above, in the two statutory petitions available on record, the petitioner virtually pleaded guilty for his first mistake and prayed to be let off lightly by extending a sympathetic consideration. In this background, this Court is of the firm opinion that the statutory petition which has been filed alongwith the writ petition was never submitted by the petitioner to the disciplinary authority and appears to be a posteriorly drafted document prepared to create evidence. S.B.C.W.P.No.1346/2003
Bhanwar Lal Vs. Union of India & ors.
7 Shri Malik learned counsel for the petitioner did not controvert the fact that the SSFC could have simultaneously imposed even graver punishment of imprisonment upon the petitioner alongwith the penalty of dismissal. However evidently, since the petitioner pleaded guilty, the SSFC took a lenient view of the matter and decided not to sentence the petitioner to imprisonment. The Hon'ble Delhi High Court judgment relied upon by Shri Malik learned counsel for the petitioner was delivered in the year 2001. Law is dynamic and keeps on evolving with passage of time. The Hon'ble Supreme Court has taken a different view in the case of Union of India Vs. Datta Linga Toshatwad reported in 2015(13) SCC
709. The Hon'ble Supreme Court affirmed the punishment of dismissal imposed upon a Constable in BSF, who had just overstayed his leave. At para 8 of the above judgment it was observed as under:-
"8. The present case is not a case of a constable merely overstaying his leave by 12 days. The respondent took leave from 16-6-1997 and never reported for duty thereafter. Instead he filed a writ petition before the high court in which the impugned order has been passed. Members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner described, are cases of desertion particularly when there is apprehension of the member of the force being called upon to perform onerous duties in difficult terrains or an order of deputation which he finds inconvenient, is passed. We cannot take such matters lightly, particularly when it relates to S.B.C.W.P.No.1346/2003 Bhanwar Lal Vs. Union of India & ors.8
uniformed forces of this country. A member of a uniformed force who overstays his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. He appears on the scene for the first time when he files a writ petition before the high court, rather than reporting to his commanding officer. We are satisfied that in cases of this nature, dismissal from the force is a justified disciplinary action and cannot be described as disproportionate to the misconduct alleged."
In view of the clear ratio of the above-referred Supreme Court Judgment which was subsequently followed in the case of Ex-Constable Ramvir Singh (supra) relied upon by the respondents' counsel, this Court is of the firm opinion that the penalty of dismissal from service imposed upon the petitioner by the SSFC vide order (Annex.P/2) dated 19.6.2002 as affirmed by the appellate authority while deciding the statutory petition of the petitioner by order (Annex.P/5) dated 8.11.2002 was perfectly justified and consonant to the charge of misconduct attributed to the petitioner, which was of a very grave nature. The charge attributed to the petitioner, who was serving in a highly disciplined force like BSF that he entered into the room of a colleague and tried to climb on the cot where, his colleague's wife was sleeping, is indeed serious. But for Bhim Singh's presence in the room, the petitioner would have succeeded in his evil design of outraging the modesty of the lady. Therefore, once the petitioner pleaded guilty, there was no option left with the disciplinary authority but to impose S.B.C.W.P.No.1346/2003 Bhanwar Lal Vs. Union of India & ors.
9 upon him the penalty of dismissal from service.
The impugned orders ex-facie do not suffer from any illegality, irregularity or perversity so as to call for any interference in the exercise of extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India.
The writ petition thus being devoid of any merit is hereby dismissed.
No order as to costs.
(SANDEEP MEHTA), J.
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