Meghalaya High Court
A.Murali Krishna vs . The Union Of India on 20 May, 2019
Author: H. S. Thangkhiew
Bench: H. S. Thangkhiew
Serial No. 22
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 257 of 2017
Date of Decision: 20.05.2019
A.Murali Krishna Vs. The Union of India
Coram:
Hon'ble Mr. Justice H. S. Thangkhiew, Judge
Appearance:
For the Petitioner(s) : Mr. R.J. Bhattacharjee, Adv.
For the Respondent(s) : Mr. K. Paul, CGC with
Mr. A. Dhar, Adv.
i) Whether approved for reporting in Yes/No
Law journals etc.
ii) Whether approved for publication
in press: Yes/No
1) The brief facts of the case are that the petitioner a
constable of the Border Security Force was dismissed from service on being tried and found guilty on the basis of two charge sheets containing two charges each. The first charge sheet was under
Section 40 and 26 of the Border Security Force Act, 1968 for acts prejudicial to good order and disciplinary of the force and for intoxication. The petitioner pleaded guilty to both the charges. On the first charge sheet the Summary Security Force Court accepted his plea and recorded the findings of guilty to both the charges. The trial thereafter proceeded on the second charge sheet under Section 20 (c) and 21 Clause (1) of the Border Security Act, to which the WP(C) No. 257 of 2017 Page 1 of 8 petitioner also pleaded guilty. Thereafter the Security Force Court after due compliance with Rule 142 Clause (2) of the Border Security Force Rules 1969, sentenced him to be dismissed from service by order dated 1st April, 2016. Against the order of dismissal passed by the Summary Security Force Court, the petitioner filed a Statutory Appeal/Petition before the Director General Border Security Force which also came to be dismissed by order dated 11th May, 2017. Being aggrieved with the order of dismissal, this petition is before this Court.
2) Mr. R.J. Bhattacharjee, learned counsel for the petitioner submits that the order of punishment of dismissal from service is highly disproportionate, inasmuch as, the only offence which the petitioner can be held to be liable for is intoxication. He further submits that the acts of indiscipline committed by the petitioner which he was charged under Section 40 of the Act, is due and to, and because of the effects of his intoxication, and as such he submits that if he is to be punished, the same is to be meted out under the provision of Section 26 of the Border Security Force Act which prescribes a maximum punishment only six months imprisonment.
3) The learned counsel also contended that as Section 49 of the Border Security Force Act provides for award of alternate punishment, the Summary Security Force Court should have awarded a lesser degree of punishment by application of the said Section to the petitioner. He further submits that the Summary Security Force Court, without assigning any reason and without complying with the provisions of Rule 142 Clause (2) of the Border Security Force Rules dismissed the petitioner from service. As such he prays that the impugned order dated 1st April, 2016 be set aside and the petitioner be reinstated in service.
4) Mr. K. Paul, learned CGC submits that the petitioner was tried by the Summary Security Force Court by the Commandant of 123 Bn. at HQ Bn. BSF, Mawpat, Shillong WP(C) No. 257 of 2017 Page 2 of 8 (Meghalaya) on four charges divided in two charge sheets as under:
"Charge Sheet-1 i. Under Section 40 of the BSF Act, 1968- "An act prejudicial to good order and discipline of the force"
ii. Under Section 26 of the BSF Act, 1968- "Intoxication" Charge Sheet-2 i. Under Section 21 (1) of BSF Act, 1968- "Disobeying in such a manner as to show a
willful defiance of authority a lawful command given personally by his superior officer in the execution of his office"
ii. Under Section 20 (c) of BSF Act, 1968- "Using insubordinate language to his superior officer"
5) He submits that the Summary Security Force Court found the petitioner guilty on all the four charges and awarded punishment of dismissal from service. He further states that the petitioner was an incorrigible offender and earlier had incurred three bad entries during his entire service for the period from 2012 to 2015 for various offences such as fighting, use of abusive words, absenting himself without leave and for violating good order and discipline of the force. For the earlier offences he submitted, the petitioner had been given punishment by the respondents.
6) The learned CGC further submits that the prescribed procedure as stipulated by the Border Security Force Act and Rules had been duly complied with. He submits that the petitioner had pleaded guilty to all the charges and therefore in compliance with Border Security Force Rules 142 Clause (2), the Court had explained the nature and general effect of the plea of guilty and also the procedure which would be followed consequent to the said plea.
He submitted that only after being fully satisfied that the petitioner had understood the same, the Court accepted the plea of guilty and recorded the findings of guilty to all the four charges which was duly signed by the petitioner and his assistant. He thus submits, that the provision of Section 143 of the Border Security Force Rules, WP(C) No. 257 of 2017 Page 3 of 8 1969 had been duly complied with and the proceedings were held in accordance with the procedures as laid down on plea of guilty.
7) The learned CGC further submits that the charges to which the petitioner pleaded guilty carried the terms of imprisonment varying from six months to fourteen years as provided in Sections 20 (c), 21 (1), 26 and 40 and submits that by application of Section 49, punishment lower in scale was awarded to the petitioner. He draws the Court's attention to Section 48 of the Border Security Force Act and submits that in the scale of penalties, dismissal from service is lesser than the terms imprisonment as provided in Section 48 (b). As such, he submits there is no question that the petitioner had been given punishment which was disproportionate to the charges and in fact the scale had been reduced. He concludes his submissions by praying that the petition be dismissed.
8) I have heard learned counsel for the parties.
9) From the submissions advanced by the learned counsel for the petitioner, the only tangible grievance that is projected is that the punishment of dismissal is too harsh, inasmuch as, the entire episode of un-seemingly conduct of acting in a manner prejudicial to good order and discipline, disobedience, use of intemperate language is all because of intoxication which has been admitted by the writ petitioner himself. The stand of the writ petitioner is that, he should have only been punished under Section 26 of the Border Security Force Act, 1968, that is for intoxication, and should have been awarded punishment of a maximum of only six months imprisonment and thereafter he should have been reinstated in service. Section 26 of the Border Security Force Act provides as follows:-
"26. Intoxication.-Any person subject to this Act who is found in a state of intoxication, whether on duty or not, shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to six months or such less punishment as is in this Act mentioned."WP(C) No. 257 of 2017 Page 4 of 8
10) In addition to the charges under Section 26, the petitioner was also charged under Section 40 which is also quoted herein below:-
"40. Violation of good order and discipline.-Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and discipline of the Force shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned."
11) The petitioner to these two charges as framed pleaded guilty. Thereafter as reflected in the records, the petitioner had pleaded guilty even to the charges in the second charge sheet under Section 20 (c) and 21 (1) and as such he was sentenced and awarded the punishment of dismissal from service by the Summary Security Force Court. Sections 20 (c) and 21 (1) are quoted hereinbelow:-
"20. Striking or threatening superior officers.- Any person subject to this Act who commits any of the following offences, that is to say,-
(c) uses insubordinate language to such officer; shall, on conviction by a Security Force Court,-
(A) if such officer is at the time in the execution of his office or, if the offence is committed on active duty, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is this Act mentioned; and (B) in other cases, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned:
Provided that in the case of an offence specified in clause (c), the imprisonment shall not exceed five years."
21. Disobedience to superior officer.- (1) Any person subject to this Act who disobeys in such manner as to show a willful defiance of authority any lawful command given personally by his superior officer in the execution of his office whether the same is given orally, or in writing or by signal or otherwise, shall, WP(C) No. 257 of 2017 Page 5 of 8 on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned."
12) The petitioner has not assailed, questioned or made any averment that the proceedings as adopted by the Summary Security Force Court or by the Appellate authority were vitiated in any manner. From the records it also appears that adequate opportunity had also been afforded, and he had even availed the assistance of a friend to assist him in the proceeding as 'friend of the accused'. Rule 157 of the Border Security Force Rules, 1969 provides that "During a trial at a Summary Security Force Court an accused may take the assistance of any person, including a legal practitioner as he may consider necessary". The petitioner therefore having been afforded ample opportunity cannot be said to have been prejudiced in any manner, and in fact, had even availed the appellate remedy by preferring an appeal under Section 117 of the Border Security Force Act. The Appellate authority by a detailed order dated 11th May, 2017 while rejecting the appeal, had also gone through all aspects of the matter including, proportionality of the punishment, the said finding of which is quoted herein below:-
"That, the punishment so awarded is absolutely disproportionate.
123 Bn BSF has written and also the perusal of SSFC trial proceedings reveals that before awarding sentence to the petitioner, the Court recorded his previous convictions, character and rewards etc. The offences for which petitioner was convicted carry maximum punishment up to 14 years imprisonment, however, considering the entire facts and circumstances of the case, the court has taken a lenient view and awarded him only "dismissal from service" which is lesser than the maximum punishment awardable for the offences and very much commensurate with the gravity of offences committed by him."
13) Moreover, it is noticed that the writ petitioner has not challenged the Appellate order in the instant proceedings but has WP(C) No. 257 of 2017 Page 6 of 8 only come against the order dated 1st April, 2016 passed by the Summary Security Force Court. With regard to the proportionality of the punishment, I also find much force with the submission of the learned CGC who had submitted that in fact, the scale of punishment awarded is lower than the punishment for the charges that he had pleaded guilty of.
14) The four Sections that the petitioner had been charged with and found guilty of carried varying terms of imprisonment, ranging from six months under Section 26, seven years under Section 40, five years under Section 20 and fourteen years under Section 41. Section 48 which provides for punishments awardable by Security Force Court according to scale, is relevant for consideration on the point of proportionality, and the same is quoted herein below:-
"48. Punishments awardable by Security Force Courts.-(1) Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by Security Force Courts according to the scale following, that is to say,-
(a) death;
(b) imprisonment which may be for the term of life or any other lesser term but excluding imprisonment for a term not exceeding three months in Force custody;
(c) dismissal from the service;
(d) imprisonment for a term not exceeding three months in Force custody;
(e) reduction to the ranks or to a lower rank or grade or place in the list of their rank in the case of an under-officer;
(f) forfeiture of seniority of rank and forfeiture of all or any part of the service for the purpose of promotion;
(g) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose;
(h) fine, in respect of civil offences;
(i) severe reprimand or reprimand except in the case of persons below the rank of an under- officer;
(j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active duty;WP(C) No. 257 of 2017 Page 7 of 8
(k) forfeiture in the case of person sentenced to dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such dismissal;
(l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence for which he is convicted is made good. (2) Each of the punishments specified in sub-section (1) shall be deemed to be inferior in degree to every punishment preceding it in the above scale."
15) A bare reading of Section 48 shows that 48 (b) deals with imprisonment and 48 (c) with dismissal from service. Imprisonment, but excluding imprisonment for a term not exceeding three months, is higher in the scale of punishment than dismissal, as per the scale shown in Section 48, and as such it cannot be held that the punishment so inflicted on the petitioner is disproportionate.
16) Having given my thoughtful consideration to the facts and circumstances of the case especially to the quantum and proportionality of punishment against the backdrop of the charges and duly conducted proceedings, I find there is no ground for interference. There being no merit in the instant case the same is accordingly dismissed. However, with no order as to costs.
JUDGE Meghalaya 20.05.2019 "V. Lyndem PS"
WP(C) No. 257 of 2017 Page 8 of 8