Delhi High Court - Orders
Upendra Prakash Balodi vs Union Of India And Ors on 6 July, 2021
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Amit Bansal
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1977/2020
UPENDRA PRAKASH BALODI ..... Petitioner
Through: Ms. Pinky Anand, Sr. Adv. with Mr.
Sumit Teterwal and Mr. Raj Kumar
Maurya, Advs.
Versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr. Anil Soni, Adv. for UOI.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE AMIT BANSAL
ORDER
% 06.07.2021 [VIA VIDEO CONFERENCING] CM No.19317/2021 (for stay)
1. This order is in continuation of yesterday's order.
2. The counsel for the respondents Sashastra Seema Bal (SSB) has drawn our attention to Rule 38 of the SSB Rules, 2009 to contend that thereunder, the charged officer is placed under arrest on the commencement of the trial. It is thus stated that the petitioner has been under arrest for the last nearly 7 months and has now been inflicted with the punishment of rigorous imprisonment for 18 months and dismissal from service. It is contended that there can be no hiatus between the pronouncement of the sentence and confirmation thereof and the petitioner, who under Rule 38 of the Rules aforesaid has been under arrest for the last 7 months, cannot be ordered to be released now that the sentence has been imposed upon him, while awaiting confirmation thereof.
W.P.(C) 1977/2020 Page 1 of 43. On enquiry, it is informed that the only difference between the position as prevailing earlier and now is that a guard has been placed outside the residence of the petitioner/applicant and which guard will accompany the petitioner/applicant wherever the petitioner/applicant moves around in the camp.
4. Per contra the senior counsel for the petitioner/applicant has drawn our attention to the orders dated 14th October, 2020 in W.P.(C) No.7926/2020 titled Maj. Manish Kumar Vs. Union of India and 19th October, 2020 in W.P.(C) 8174/2020 titled Const. Arup Das Mohanta Vs. Union of India, where a similar question as has arisen herein is under consideration with reference to the provisions of other pari materia Statutes and which matters are informed to be listed next on 12th July, 2021.
5. The senior counsel for the petitioner/applicant, with reference to the observations in the said orders has contended that the position cannot be permitted to be changed between what has been prevailing till the infliction of the punishment and till confirmation thereof.
6. In view of the observations already made in the orders aforesaid, we tend to agree with the senior counsel for the petitioner/applicant and direct that the status as prevailing immediately prior to the imposition of the sentence/punishment will prevail till confirmation thereof.
7. The senior counsel for the petitioner/applicant, during the arguments has also contended that the petitioner has not even been supplied the copies of the orders dated 29th June, 2021 and 30th June, 2021 imposing punishment on him.
8. The counsel for the respondents SSB has drawn our attention to Rules 122 and 131 of the Rules aforesaid to contend that the petitioner/applicant, W.P.(C) 1977/2020 Page 2 of 4 till the confirmation, is only entitled to inspect the record and not entitled to any copy, even of the order passed imposing punishment on him.
9. The senior counsel for the petitioner has drawn our attention to Section 131 of the SSB Act, 2007 and to Rule 169 of the Rules aforesaid to contend that the petitioner/applicant, prior to confirmation, has a right to represent and to be heard by the confirming authority.
10. We have enquired from the counsel for the respondents SSB, that once there is a right of hearing prior to confirmation, how is that hearing to be effective without the petitioner/applicant being in possession of a copy of the order, which is subject to confirmation. Even if the petitioner/applicant is granted inspection thereof, mere inspection on one day without receiving a copy thereof cannot lead to an effective hearing after a few days.
11. At this stage Mr. Sudhanshu Kumar, Judge Attorney General of the respondents SSB also present during the hearing, has reiterated the same contention that under the Rules aforesaid, there is no entitlement to any copy of the order imposing punishment.
12. We have however enquired from Mr. Sudhanshu Kumar, whether he would be satisfied if the copy of today's order is not made available to him and made available only to the counsel for the petitioner/applicant. Obviously he cannot answer in the affirmative.
13. In the absence of any prejudice being shown to be caused to the proceedings by supply of copy at least of the order, which is subject to confirmation, to the petitioner/applicant, the requirements of Section 131 of the Act aforesaid and Rule 169 of the Rules aforesaid cannot be so read.
14. In the circumstances, for the purposes of the present case and not intending to lay down any law in general inasmuch as we have not heard the W.P.(C) 1977/2020 Page 3 of 4 counsels fully in the matter, we direct the respondents SSB to supply at least copies of the orders dated 29th June, 2021 and 30th June, 2021 to the petitioner/applicant within 3 days of today. As far as the remaining proceedings are concerned, the petitioner/applicant, for the time being, shall be entitled only to inspection thereof.
15. With the aforesaid the application stands disposed of. W.P.(C) 1977/2020
16. We have enquired from the senior counsel for the petitioner, what remains in the writ petition, inasmuch as the remedy of the petitioner, if the sentence is confirmed, would be to take appropriate proceedings thereagainst.
17. Though the senior counsel for the petitioner has contended that the writ petition challenges the very initiation of the proceedings and which remains to be adjudicated but the senior counsel for the petitioner is requested to address us on the said aspect also on the next date of hearing.
18. Though the petition is scheduled to be listed next on 27th July, 2021 but it is deemed appropriate to take up this petition along with the petitions aforementioned which are coming up on 12th July, 2021.
19. List on 12th July, 2021.
20. The counsels to come prepared on all the aforesaid aspects also.
21. The next date of 27th July, 2021 stands cancelled.
RAJIV SAHAI ENDLAW, J AMIT BANSAL, J JULY 6, 2021/SU W.P.(C) 1977/2020 Page 4 of 4