Calcutta High Court (Appellete Side)
Smt. Pramila Devi vs The Union Of India & Ors on 15 December, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
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Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present : The Hon'ble Mr Justice Mir Dara Sheko
W.P.No.5689(W) of 2007
Smt. Pramila Devi
-vs-
The Union of India & Ors.
Mr. Srijib Chakraborty
Ms. Riya Das
Ms. S. Das Chowdhury ....for the petitioner
Mr. N. Mondal ...for the Union of India
Heard on : December 15, 2017
Judgment on : December 15, 2017
Heard Mr Chakraborty being assisted by Ms Das and Ms Das Chowdhury
representing the petitioner. Mr Mondal appears for the Union of India. Perused
the materials on record.
The writ petition under Article 226 of the Constitution of India, being one
of the oldest, since it is of the year 2007, is taken up for hearing on consideration
of the materials on record and the submission advanced before this court and, of
course, on consulting the provisions of the Act and Rules applied in the case.
Upon hearing the court is apprised of the fact that the husband of the
writ petitioner, Dinesh Sharma, was said to be found at fault with three charges,
while he was in service attached to HQ COI 162 Battalion BSF. As reveals from
an order dated March 22, 2001 passed by one Mr Puran Singh being the
Commandant of said Dinesh Sharma, said order is set out hereunder:-
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" Whereas No.8300 2524 Const (MTI) Dinesh Sharma 'HQ Coy' 162 Bn BSF, who was found in
the state of intoxication at 10 40 hrs on 21 Mar'2001 and has become of violent disposition at Bn HQ
Patiram. The case is pending for investigation.
2. Now, therefore, the Central Govt. in exercise of the powers conferred by clause (1) of Sub Rule (1)
of Rule 40-A of BSF Rules, 1969 as amended, undersigned hereby places the same No.8300 2524
Const(MTD) Dinesh Sharma of 162 Bn BSF under suspension with immediate effect.
3. It is further order that during the period this order remains in force, the said No. 83002524 Const
(MTD) Dinesh Sharma shall not leave his HQr without obtaining permission of the Competent Authority."
On the basis of the aforesaid order the charge-sheet was framed on the
very following day, i.e. on March 23, 2001, which is also set out hereunder:-
"Charge-I
BSF Act-1968
Section - 19(c) Absenting Himself without leave
In that he, at Bn. HQr, Patiram on 22-03-2001 absented himself
without leave from 1800 to 2300 hrs. Total period of absent 05 hrs.
Charge-II
BSF Act-1968
Section -22(e) Neglecting to obey LOC orders
In that he, at Bn HQr on 21-03-2001 at about 1900 hrs gone out
of the unit lines without proper permission as all CRs are required
to take permission of senior so as per 162 Bn BSF O/No.ST/162
/Instr/2001/1135-40 dtd 18/01/2001 which directs that all CRs
are forbidden to go outside the unit lines without proper
permission.
Charge-III
BSF Act-1968
Section-26 Intoxication
In that he, at Bn HQ, Patiram on 21-03-2001 at 2300 hrs was
found in state of intoxication."
Now, from Annexure P3 it reveals that the self-same Commandant by his
order dated March 30, 2001 held Dinesh Sharma guilty of all the three charges
and sentenced by dismissing from service with effect from that day by striking off
the strength of the said 162 Battalion with effect from that day.
Admittedly, a review application was filed; and it has been pointed out
that the self-same Commandant entertained that review application and modified
the findings on the charges, but did not alter the decision of sentence. The
result of review dated May 25, 2001 is set out:-
"On review of SSFC proceedings the Reviewing Officers has varied the findings of the Court to
the extent that accused is guilty of the first charge with the variation that he absented himself without leave
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from 1800 to 2230 hours and not 2330 hours, guilty of the third charge and not guilty of the second charge.
There is no change in the sentence awarded to you."
In the midst of proceeding Dinesh had moved the High Court of
Judicature at Patna. The Patna High Court by recording its order dated July 17,
2001 allowed Dinesh to withdraw the writ petition, since there was alternative
remedy to prefer appeal before the competent authority. Of course, it has been
pointed out that in the appeal also the judgment of conviction and sentence was
not altered, since it was dismissed on January 21, 2002, meaning thereby the
initial entire proceeding which was started on March 21, 2001 was concluded on
March 30, 2001 and the review proceeding was concluded on May 25, 2001 and
the appeal on January 22, 2002.
During course of hearing, while the court was brought across the
provisions of the Act and Rules, it reveals, particularly from Chapter VII of the
Border Security Rules, 1969, that after offence report the provisions with regard
to the procedures to be followed by the authority have been detailed, especially
under rules 44, 45, 45(b) so on and so forth.
Now, from within the order dated March 30, 2001 or even in the review
order dated March 25, 2001 or lastly in the order dated January 22, 2002 there
was no whisper as to whether any notice to show cause was ever issued to
Dinesh or whether Dinesh had ever got the opportunity to submit the reply in
discharge of his defence or whether any witness was ever summoned or any
evidence was ever recorded by giving opportunity to Dinesh to cross-examine any
such witness. That apart, on review ultimately Dinesh was found guilty only of
the first charge under reference as to the variation that he absented without
leave from 18.00 hours to 22.30 hours and not 23.30 hours; and though was
exonerated from the second charge but holding guilty for the third charge was
kept unaltered.
It is needless to mention that the writ court, of course, is not hearing the
appeal over the finding or the result of the appeal preferred by the incumbent by
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which he had suffered. But the court is concerned as to whether the incumbent
who was having statutory vis-à-vis the fundamental rights to defend himself
adequately where he was levelled with some charges, then whether opportunities
were so given or alternatively whether said incumbent had been able to discharge
the liberty which he had with him under the prevailing law.
During foregoing discussions, the answer of this court is in the negative,
since either the final order or the review order or even the order passed in appeal
by the authority is absolutely found silent on this score. That apart, on the point
of sentence section 19 of the Border Security Force Act, 1968 has given clear
indication as to what ought to be the reasonable punishment in the event of
holding Dinesh guilty for the offence as was confirmed up to the stage of appeal
following the judgment in review. On that score also the punishment of dismissal
from service cannot stand which may be altered accordingly subject to
compliance of all other formalities of the Act and Rules in following the procedure
of the trial.
On the other hand, there is gross violation of principles of natural justice,
since this court finds that Dinesh, who was held guilty, was serving under the
care and control of the Commandant, Puran Singh. The order dated March 22,
2001 under reference was passed by Puran, charge was also framed by him and
the punishment also was imposed by the self-same Commandant without
complying with section 70(2) of the Border Security Force Act, 1968.
Therefore, keeping the order dated March 22, 2001 and the charge-sheet
intact, all other subsequent orders from March 30, 2001 till the result of appeal
as reveals from letter dated January 22, 2001 are set aside, since the entire
proceedings virtually vitiate.
Since it is submitted that Dinesh is no more, his successor, if any,
including the writ petitioner, shall be entitled to get all the retirement benefits in
terms of prayer (d) of the writ petition. The respondent no.2 shall take care and
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take necessary incidental steps for preparation of papers and disbursement of pensionary benefits with all dues, including the arrear salary, if any, treating him in service in such special circumstance.
With the above, the writ petition is allowed without any order as to costs.
Certified photocopy of this order, if applied for, shall be given to the parties.
(Mir Dara Sheko, J) Subrata