Calcutta High Court (Appellete Side)
Bidananda Mandal vs U.O.I. & Ors on 18 November, 2019
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
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43 18.11.2019 W.P. 14031(W) of 2009
AN Ct. No. 14
Bidananda Mandal
-vs.-
U.O.I. & Ors.
Mr. K. B. S. Mahapatra
Mr. Kashinath Bhattacharya
Mr. Saroj Sarkar
... for the petitioner
Mr. Pulakesh Bajpayee
... for the respondents
The petitioner has filed the instant writ application challenging the final order of dismissal passed by his Commandant on 08.08.08.
The writ petitioner was tried in terms of Section 70 of B.S.F. Act, 1968 in the form of Summary Security Force Court. In terms of Sub-section 2 of the aforesaid Section, the Summary Security Force Court would constitute of Commandant of the petitioner concerned only and none else.
The proceedings would further be attended through out by two other persons who shall be Officers or Subordinate Officers or one of either and who shall not as such be sworn or affirmed.
This court has examined records in original as produced by the learned counsel appearing on behalf of the B.S.F. The charges against the petitioner are as follows:
APPENDIX-VI RULE 53(2) CHARGE SHEET 2 The accused person No. 03104058 Const Bidananda Mandal 'B' Coy of this unit who is charged with:-
FIRST CHARGE : BSF ACT SEC 21(2) DISOBEYING A LAWFUL COMMAND GIVEN BY HIS SUPERIOR OFFICER.
In that he, At Bn HQ, 90 BN BSF, Roshanbagh on 22/07/08 at _530 hrs when ordered by BHM to proceed to BOP Harudanga 'B' Coy for duty, refused to do so.
SECOND CHARGE : BSF ACT SEC 19(d) WITHOUT SUFFICIENT CAUSE, FAILING TO APPEAR AT THE TIME FIXED, AT THE PLACE APPOINTED FOR WEAPON CLEANING.
In that he, At Bn HQ, 90 BN BSF, Roshanbagh on 23/07/08 at 0600 hrs failed without sufficient cause to appear in weapon cleaning parade of the BN.
THIRD CHARGE : BSF ACT SEC 21(2) DISOBEYING A LAWFUL COMMAND GIVEN BY HIS SUPERIOR OFFICER In that he, At Bn HQ, 90 BN BSF, Roshanbagh on 27/07/08 at 0600 & 1300 hrs when ordered by BHM to proceed to BOP Harudanga 'B' Coy for border duty, refused to do so.
FORTH CHARGE : BSF ACT SEC 19(f) WHEN IN CAMP BEING FOUND IN PLACE PROHIBITED BY A UNIT ORDER WITHOUT A PERMISSION In that he, At Bn HQ, 90 BN BSF, Roshanbagh on 10/08/08 at 1815 hrs was found without permission in a place declared out of bout to all ranks i.e. area adjacent to Bn HQ 90 BN BSF campus which is in contravention of SHQ BSF Berhampore order No. Pers/257/SHQ (BHP)/2006/3287- 92 dated 4th March, 2006.
FIFTH CHARGE : BSF ACT SEC 21(2) DISOBEYING A LAWFUL COMMAND GIVEN BY HIS SUPERIOR OFFICER In that he, At Bn HQ, 90 BN BSF, Roshanbagh on 22/08/08 at 1452 hrs when ordered by Sh. P. C. Rai, DC to collect movement order for further move to 126 Bn BSF on permanent posting, refused to do so.
SIXTH CHARGE : BSF ACT SEC 21(2) DISOBEYING A LAWFUL COMMAND GIVEN BY HIS 3 SUPERIOR OFFICER In that he, At Bn HQ, 90 BN BSF, Roshanbagh on 26/08/08 at 2140 hrs when ordered by BHM to prepare himself for move to Ftr HQ BSF SB for interview of competent authority of SB Ftr, refused to do so and proceeded on 27/08/08 at 0500 hrs at his own.
SEVENTH CHARGE : BSF ACT SEC 21(2) DISOBEYING A LAWFUL COMMAND GIVEN BY HIS SUPERIOR OFFICER In that he, At Bn HQ, 90 BN BSF, Roshanbagh on 7TH Sep 2008 at 1715 hrs when ordered by BHM to proceed to Frontier HQ for collection of his education documents from WB BOSE he refused to do.
EIGHTH CHARGE : BSF ACT SEC 19( ) ABSENTING HIMSELF WITHOUT LEAVE In that he, At Ftr HQ SB on 15/09/08 (AN) relieved for 90 Bn BSF Roshanbagh after completion of temp duty absented himself without leave and voluntarily join Bn HQ, 90 BN BSF on 22/09/08 (AN) after absenting 07 days. NINTH CHARGE : BSF ACT SEC 40 AN ACT PRE-JUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE In that he, At Mental Hospital, Berhampore on 30/09/08 while going for medical examination, has unauthorisedly made irresponsible statement to the media personnel and tarnished the image of the Force.
Place : Roshanbagh (WB) (GURPAL SINGH) COMMANDANT Dated : 03 Oct' 2008. 90 Bn BSF It appears from the original record produced by the B.S.F. that the Commandant of the petitioner was Sri Gurpal Singh of the 90th Battalion, B.S.F. The trial was attended in terms of Sub-section 2 of Rule 70 by Sri A. K. Singh and Sri J. K. Chowdhury. Another person who was a friend of the accused Sri A. K. Pandey, A.C. was 4 also present.
The writ petitioner was first arraigned against the charges which he pleaded not guilty. As many as 9 questions were posed to him.
The trial started after he pleaded not guilty. A clerk was appointed and as many as 8 witnesses were examined by the prosecution and the petitioner cross-examined each and every one of the 8 witnesses. The petitioner refused to produce any witness in defence. He further made a statement in defence which was recorded in detail.
After considering the evidence on record, the petitioner was punished through dismissal of service. The petitioner was found guilty of the charges in question. An appeal was preferred by the petitioner to the Director General, B.S.F. who rejected this appeal by a detailed order dated 30.06.2009 affirming order of dismissal.
The petitioner would take a two fold argument before this court. The first argument is that in terms of Rule 46 of the B.S.F. Rules of 1969, his own Commandant could not conduct the enquiry against him nor could he act as a witness.
It is found from the records that the Commandant did not act as a witness. However, since the proceedings were conducted in terms of Rule 70 of the B.S.F. Act, 1968.
It is only the Commandant who can constitute the court against the petitioner and none else.
The second argument of the petitioner is that he was not afforded any document in the trial.
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It also appears from the record that not only had the petitioner refused to advance any witness from his side but he has also cross examined each of the prosecution witnesses in detail.
He has further made a detail statement in his defence after the conclusion of the prosecution witness. The above demonstrates that the petitioner had clearly understood the charges leveled and the evidence adduced against him.
The petitioner also answered in negative when he was asked by this court as to whether he was formally asked for the documents, and the list of witnesses.
The above demonstrates that the petitioner was not desirous of any document or list of witnesses and that he was clearly aware of the charges against him.
This court is of the view that every principle of natural justice as co-defined under the B.S.F. Act of 1968 and B.S.F. Rules, 1969, have been followed in letter and spirit by the authorities.
It may not be out of place to refer to the case of State of Patiala vs. S. K. Sharma reported in (1996) 3 SCC 364 at page 385 wherein it has been stipulated that in every case of violation of the principle of natural justice would render an enquiry bad, provided the petitioner must demonstrate from the records that he has been prejudiced by reason of non-compliance of any of the aforesaid principles.
In the case of State Bank of Patiala v. S.K. Sharma, reported in (1996) 3 SCC 364 at page 385, Para 28 & Para 32, the Supreme Court held as follows:
"28. The decisions cited above make one thing clear, 6 viz., principles of natural justice cannot be reduced to any hard and fast formulae. As said in Russell v. Duke of Norfolk [(1949) 1 All ER 109 : 65 TLR 225] way back in 1949, these principles cannot be put in a strait-jacket. Their applicability depends upon the context and the facts and circumstances of each case. (See Mohinder Singh Gill v. Chief Election Commr. [(1978) 1 SCC 405 : (1978) 2 SCR 272] ) The objective is to ensure a fair hearing, a fair deal, to the person whose rights are going to be affected. (See A.K. Roy v. Union of India [(1982) 1 SCC 271 : 1982 SCC (Cri) 152] and Swadeshi Cotton Mills v. Union of India [(1981) 1 SCC 664] .) As pointed out by this Court in A.K. Kraipak v. Union of India [(1969) 2 SCC 262] , the dividing line between quasi-judicial function and administrative function (affecting the rights of a party) has become quite thin and almost indistinguishable -- a fact also emphasised by House of Lords in Council of Civil Service Unions v. Minister for the Civil Service [(1984) 3 All ER 935 : (1984) 3 WLR 1174 : 1985 AC 374, HL] where the principles of natural justice and a fair hearing were treated as synonymous. Whichever the case, it is from the standpoint of fair hearing
-- applying the test of prejudice, as it may be called -- that any and every complaint of violation of the rule of audi alteram partem should be examined. Indeed, there may be situations where observance of the requirement of prior notice/hearing may defeat the very proceeding -- which may result in grave prejudice to public interest. It is for this reason that the rule of post-decisional hearing as a sufficient compliance with natural justice was evolved in some of the cases, e.g., Liberty Oil Mills v. Union of India [(1984) 3 SCC 465] . There may also be cases where the public interest or the interests of the security of State or other similar considerations may make it inadvisable to observe the rule of audi alteram partem altogether [as in the case of situations contemplated by clauses (b) and (c) of the proviso to Article 311(2)] or to disclose the material on which a particular action is being taken. There may indeed be any number of varying situations which it is not possible for anyone to foresee. In our respectful opinion, the principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and enquiries: a distinction ought to be made between violation of the principle of natural justice, audi alteram partem, as such and violation of a facet of the said principle. In other words, distinction is between "no notice"/"no hearing" and "no adequate hearing" or to put it in different words, "no opportunity" and "no adequate opportunity". To illustrate -- take a case where the person is dismissed from service without hearing him altogether (as in Ridge v. Baldwin [1964 AC 40 : (1963) 2 All ER 66 : (1963) 2 WLR 935] ). It would be a case falling under the first category and the order of dismissal would be invalid -- or void, if one chooses to use that expression (Calvin v. Carr [1980 AC 574 : (1979) 2 All ER 440 : (1979) 2 WLR 755, PC] ). But where the person is dismissed from service, say, without supplying 7 him a copy of the enquiry officer's report (Managing Director, ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] ) or without affording him a due opportunity of cross-examining a witness (K.L. Tripathi [(1984) 1 SCC 43 : 1984 SCC (L&S) 62] ) it would be a case falling in the latter category -- violation of a facet of the said rule of natural justice -- in which case, the validity of the order has to be tested on the touchstone of prejudice, i.e., whether, all in all, the person concerned did or did not have a fair hearing. It would not be correct -- in the light of the above decisions to say that for any and every violation of a facet of natural justice or of a rule incorporating such facet, the order passed is altogether void and ought to be set aside without further enquiry. In our opinion, the approach and test adopted in B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] should govern all cases where the complaint is not that there was no hearing (no notice, no opportunity and no hearing) but one of not affording a proper hearing (i.e., adequate or a full hearing) or of violation of a procedural rule or requirement governing the enquiry; the complaint should be examined on the touchstone of prejudice as aforesaid."
"32. Now, coming back to the illustration given by us in the preceding para, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of sub-clause (iii) be in the interests of justice or would it be its negation? In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise."
In any event, this court does not find any principle of natural justice or statutory rule has been violated in the facts of the case.
The charges against the petitioner are indeed very serious and a member of such a disciplined Force is not expected to act in the manner as has been proved against him.
In such circumstances, the instant writ petition must fail and is hereby dismissed.
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There will be no order as to costs.
Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(Rajasekhar Mantha, J.)