Meghalaya High Court
Director General, Bsf& Ors vs . Ex. Constable Padh Sd on 13 February, 2020
Equivalent citations: AIRONLINE 2020 MEG 7
Bench: Mohammad Rafiq, W. Diengdoh
Serial No.01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WA No.15/2019
Date of Order: 13.02.2020
Director General, BSF& ors Vs. Ex. Constable Padh SD
Coram:
Hon'ble Mr. Justice Mohammad Rafiq, Chief Justice
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. K Paul, CGC
For the Respondent(s) : Mr. R Gurung, Adv
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
Per Mohammad Rafiq, 'CJ'
1. This appeal has been preferred by the Director General, Border Security Force (BSF), New Delhi and other three officers of the BSF, challenging the judgment of the Single Bench of this Court dated 15.11.2017, whereby the writ petition filed by Ex. Constable Padh SD was allowed and the order dated passed by the Commandant 19 th Battalion BSF, Shillong-appellant No.4 herein, dismissing the respondent/writ petitioner from service and the subsequent order dated 05.07.2016 passed by the Deputy Inspector General/CLO (D&L), BSF-appellant No.2 herein, commuting the sentence of dismissal from service to rigorous imprisonment for 89 days in Force custody and forfeiture of two years of service for the purpose of promotion, were both quashed and set aside.
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2. The facts of the case in brief are that the respondent/writ petitioner while serving as a Constable of „E‟ Coy under 19th Battalion, BSF, Shillong, was charged under Sections 34(a), 40 and 19(a) of the Border Security Force Act, 1968 (for short the „Act of 1968‟) for the following offences:-
"(a) Making a false allegation against a person subject to the Border Security Force Act, 1968 knowing such accusation to be false;
(b) Act prejudicial to good order and discipline in the Force;
(c) Absenting without leave;
(d) Absenting without leave."
3. Upon the Summary Security Force Court convened against the respondent/writ petitioner recording finding of guilt on the aforementioned the above referred to charges, the Commandant 19th Battalion, BSF vide order dated 13.09.2014, awarded him penalty of dismissal from service. Being aggrieved, the respondent/writ petitioner filed writ petition [WP (C) No.177 of 2015] before this Court. While declining to interfere with the impugned order 13.09.2014, this Court disposed of the same vide judgment dated 19.04.2016, directing the respondent/writ petitioner to take recourse to appropriate statutory remedy in accordance with law. The respondent/writ petitioner then preferred an appeal under Section 117(2) of the Act of 1968 read with Rule 167(2) of the Border Security Rules, 1969 (for short the „Rules of 1969‟) before the Appellate Authority viz.-the Direction General of BSF, on 02.05.2016. The Appellate Authority allowed the appeal in part and substituted the sentence of dismissal from service by rigorous imprisonment for 89 days in Force custody and forfeiture of two years of service for the purpose of promotion. These two orders have been 2 set aside and quashed by the learned Single Judge vide judgment impugned in the present appeal proceedings.
4. Mr. K Paul, learned counsel appearing for the appellants has argued that the learned Single Judge has erred in law in not appreciating that the sentence awarded in terms of Section 48 of the Act of 1968 to the respondent/writ petitioner was legal and valid on the finding of the Summary Security Force Court recorded against the respondent/writ petitioner. The respondent/writ petitioner was given full opportunity to defend himself in the proceedings before the Summary Security Force Court for the charges leveled against him of (i) making false accusations to a person subject to the BSF Act knowing such accusation to be false; (ii) an act of prejudicial to good order and discipline of the Force and; (iii) absenting himself without leave, stood proved beyond reasonable doubt. Learned counsel argued that the First Information Report (FIR) filed by the respondent/writ petitioner, alleging sodomy with him, was though registered vide FIR No.73(6)/2014 under Section 377/34 IPC at Rynjah Police Station, Nongmynsong Outpost but the investigation into that FIR did not substantiate the accusation and the police finally submitted a negative final report therein dated 31.01.2015 to the court of competent jurisdiction. The respondent/writ petitioner did not seek any further investigation into the matter inasmuch as he has not filed any protest petition.
5. Mr. K Paul, learned counsel appearing for the appellants submitted that the respondent/writ petitioner had gone to the Unit MI room 3 at 0930 hours but did not report any sexual assault/sodomy to the Unit GDMO. The Appellate Authority after carefully examining the case of the respondent/writ petitioner, finding the order of dismissal disproportionate to the gravity of the charges, set aside the order of dismissal from service and commuted to a lesser penalty of sentence to suffer rigorous imprisonment for 89 days in force custody and to forfeit two years of service for the purpose of promotion.
6. Learned counsel submitted that the learned Single Judge has erred in law in holding that even the reduced punishment was not at all proportionate and against the principle of natural justice. The learned Single Judge has wrongly held that merely because the investigating agency has failed to collect the evidence and submitted the negative final report in the matter cannot be the reason to conclude that no such incident has taken place. The learned Single Judge has illegally held that absence from duty under compelling circumstances, as in the instant case, from 31.05.2014 to 04.06.2014, cannot be treated as unauthorized absence of the respondent/writ petitioner as he was unwell and admitted in hospital.
7. It is submitted that the learned Single Judge has completely failed to appreciate that the charges No.1, 2and 3 against the respondent/writ petitioner had not even been refuted or assailed by the respondent/writ petitioner in the writ proceedings. This is no longer res integra that the jurisdiction under Article 226 of the Constitution of India is exercised by writ courts only when there are procedural infirmities resulting in violation of the principles of natural justice in disciplinary proceedings. The merits of 4 the case are usually not gone into by writ courts unless something absolutely perverse, which forms the genesis of the decision of the disciplinary authority, is brought to the notice of the writ court. Relying upon the judgment of the Supreme Court in the case of B.C. Chaturvedi v. Union of India & ors: (1995) 6 SCC 749 learned counsel argued that the Supreme Court in that case held that judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Since no such perversity has been brought forth in the present case, the impugned judgment is liable to be set aside.
8. Learned counsel argued that the quantum of punishment in disciplinary proceedings is something that rests primarily with the disciplinary authority. In the absence of any challenge to the finding of charges at serial No.1, 2 and 3, there survived no occasion for the learned Single Judge to hold that the punishment was grossly disproportionate. It is argued that the learned Single Judge has completely misconstrued the position of law vis-à-vis return of FIR on negative final report as well as the judgment of the Supreme Court in D.K. Basu v. State of West Bengal and came to a perverse finding that return of FIR in negative final report does not mean that the case is false. Since the respondent/writ petitioner did not object to the submission of negative final report and also did not demand re-investigation or further investigation in the matter, no other conclusion could be arrived at. Learned Single Judge has wrongly relied on the two cash rewards and one appreciation card given to the respondent/writ petitioner to conclude that he was a dedicated soldier. This does not in any 5 manner diminish the gravity of charges against him which stand proved in a detailed Summary Security Force Court. Lastly, Mr. K Paul, learned counsel appearing for the appellants submitted that the respondent/writ petitioner has in any case served out rigorous imprisonment for 89 days in force custody and therefore, there was no case for interference with the order of penalty at least to that extent.
9. Per contra, Mr. R Gurung, learned counsel appearing for the respondent/writ petitioner opposed the appeal and supported the judgment of the learned Single Judge. Learned counsel argued that the charge framed against the respondent/writ petitioner under Section 34(a) of the Act of 1968 was to the effect that the respondent/writ petitioner had alleged that one Shri Manish Kumar and others of the force, were involved in smuggling, while knowing the said statement to be false but the fact is that statement of the respondent/writ petitioner was recorded by the authorities under caution as prescribed under Rule 48(3) of the Rules of 1969. The alleged incidents had occurred on 14.02.2014, 15.02.2014, 16.02.2014, 18.02.2014, 20.02.2014 and 23.02.2014 as per narration of the respondent/writ petitioner. Regarding the charge framed under Section 40 of the Act of 1968 that the respondent/writ petitioner had alleged sodomy with him, but the court of inquiry found the same to be incorrect, the stand of the respondent/writ petitioner was that the factual backdrop describing the circumstances in which he was subjected to sodomy and circumstances following thereafter, were narrated to the authorities and the authorities recorded the same in compliance with Rule 48(3) of the Rules of 1969, 6 which substantiated the allegations. Learned counsel in this respect relied on the Medico Legal Report of the respondent/writ petitioner corroborating the accusation of sodomy with him and the statement of PW14 Dr. Peter Daniel Sohliyakhariong of NEIGRIHMS where the respondent/writ petitioner was admitted at 1:45 PM on 31.05.2014 and also the statement of PW3 Ranjeet Singh of 19th Battalion, BSF and statement of PW4 Inspector Adhya Singh of 19th Battalion, BSF.
10. Learned counsel submitted that the allegation against the respondent/writ petitioner under Section 19(a) to the effect that on 28.05.2014, he absented himself from duty without leave from 1030 hrs to 1230 hrs is also not substantiated against him. As per the statement of PW4- Inspector Adhya Singh, the respondent/writ petitioner had reported to the said witness for an out pass for visiting Nongmynsong State Bank of India. This witness (PW4) stated that about 11:30 AM, the respondent/writ petitioner had called the said witness on his cell phone, stating that he was near by the office of Inspector General and his mobile being on silent mode, he could not give reply to his (PW4) call. The respondent/writ petitioner reported soon thereafter in campus 19th Battalion, Mawpat at 1200 hrs and submitted a written application regarding his arrival from FTR HQ (IG) campus, which was exhibited as Exhibit-P. PW3-Shri Ranjeet Singh of 19th Battalion, BSF also affirmed that the respondent/writ petitioner had reported in 19th Battalion BSF campus at about 1200 hrs on 28.05.2014. With regard to the fourth charge framed under Section 19(a) to the effect that on 31.05.2014, the respondent/writ petitioner absented himself without 7 leave from 1200 hrs to 1600 hrs, contention of the learned counsel is that the respondent/writ petitioner was at NEIGRIHMS and the Medico Legal Report (MLR) of the said Institute exhibited as Exhibit-V reflects abrasions on the body of the respondent/writ petitioner as also the PR examination indicated tear at 6 o‟clock position on his anal section which being tender to touch, its proctoscopy could not be done and the respondent/writ petitioner was admitted in GSW. The statement of PW14 Dr. Peter Daniel Sohliyakhariong proves the injury so sustained by the respondent/writ petitioner as also the fact that the respondent/writ petitioner reported and was admitted to the said medical institution at 1:45 PM on 31.05.2014.
11. Learned counsel in support of his argument has relied on the judgment of the Supreme Court in the case of Krushnakant B. Parmar v. Union of India & ors: Civil Appeal No.2106 of 2012 to submit that the Supreme Court in that case held that absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case, the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant. It is therefore submitted that the learned Single Judge was perfectly justified while allowing the writ petition and the appeal is liable to be dismissed.
12. We have given our anxious consideration to the rival submissions and perused the material placed on record.
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13. No doubt, the scope of interference by this Court with the order of penalty awarded on the finding recorded by the Summary Security Force Court, in para-military forces like BSF, is very limited but that limitation cannot be raised to the level of total denial of jurisdiction to this Court. However, the power of judicial review available with this Court in the facts and circumstances of the case is to be exercised with great caution in rare and exceptional cases. The scope of judicial scrutiny by this Court on the material placed on record in the present case is therefore limited to finding out whether the instant matter falls in that category. It may be true that this Court may not go into the merits of the allegations while exercising the power of judicial review, but yet it may apply Wednesbury principles of unreasonableness as a legal test to find out whether the decision taken by the authority and penalty awarded is proportionate and is not perverse. It is trite that the Court has to see whether on the available materials the decision arrived at by the authority is reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived it, and if the Court finds that the decision on the given materials is not well balanced or harmonious and does not stand to reason it can certainly interfere. [In Re- Associated Provincial Picture Houses Ltd. v. Wednesbury Corp.: (1948) 1 KB 223].
14. It is settled proposition of law that on the question of quantum of punishment that "if proportionality of the punishment is harsh, albeit a lesser punishment may be imposed, but such an order cannot be passed on 9 an irrational or extraneous factor and certainly not on a compassionate ground". [In Re-Bhagwan Lal Arya v. Commissioner of Police: (2004) 4 SCC 560].It is also well settled that "the power of interference with the quantum of punishment is extremely limited. But when relevant factors are not taken note of, which have some bearing on the quantum of punishment, certainly the Court can direct re-reconsideration or in an appropriate case to shorten litigation, indicate the punishment to be awarded". [In Re-Kailash Nath Gupta v. Enquiry Officer: (2003) 9 SCC 480].
15. The Summary Security Force Court held at the Headquarter 19 th Battalion BSF, Mawpat, Shillong w.e.f. 11.09.2014 to 13.09.2014 for trial of the respondent/writ petitioner found him guilty of the following charges:-
"BSF ACT 1968 MAKING A FALSE ACCUSATION AGAINST A PERSON SECTION 34(a) SUBJECT TO BSF ACT KNOWING SUCH ACCUSATION TO BE FALSE.
In that he, At Bn HQ on 9th May 2014 stated that "No. 012541281 SI Manish Kumar & Other pers of BOP Hangaria were Involved in smuggling" well knowing the said statement to be false.
BSF ACT 1968, AN ACT PREJUDICIAL TO GOOD ORDER AND
SECTION-40 DISCIPLINE OF THE FORCE
In that he,
At Bn HQ Mawpat Shillong on intervening night of 30/31 May 2014 made complaint/allegations regarding Sexual Harassment (sodomy) with him by unknown colleagues, while he was under „Record of Evidence‟ in connection with disciplinary case pending against him with reference to this office order No. 6124-28 dated 27th May2014. Whereas, on Court of Inquiry, same allegations found incorrect.
BSF ACT 1968 ABSENTING HIMSELF WITHOUT LEAVE SECTION-19(a) In that he, At Bn HQ Mawpat on 28.05.2014 absented himself without leave from 1030 hrs to 1230 hrs, while he was under „Record of Evidence‟ in connection with disciplinary case pending against him with reference to this office Order No. 6124-28 dated 27th May 2014.10
BSF ACT 1968 ABSENTING HIMSELF WITHOUT LEAVE SECTION-19(a) In that he, At Bn HQ Mawpat on 31.05.2014 absented himself without leave from 1200 hrs to 1600 hrs, while he was under „Record of Evidence‟ in connection with disciplinary case pending against him with reference to this office Order No. 6124-28 dated 27th May 2014.
16. The first charge was under Section 34(a) of the Act of 1968 to the effect that the respondent/writ petitioner alleged that one Shri Manish Kumar and others were involved in smuggling in BOP Hangaria, well knowing the said statement to be false. The Commandant 19th Battalion, BSF, as per assertion in the affidavit on 08.04.2014, ordered an inquiry to investigate the correctness and authenticity of the complaint but there was counter allegation by Shri Manish Kumar (Post Commander) that the respondent/writ petitioner was involved in the act of indiscipline during OP duty on 18.02.2014 and he had deserted himself from Unit line. Further, that he failed to substantiate the allegation of sexual harassment made by colleagues on him. The Court of Inquiry in its conclusion found that the respondent/writ petitioner was making false allegations in the name of approaching senior officers and had been disobedient on many occasions to the extent that on 22.02.2014 he left the BOP Hangaria to meet IG BSF Meghalaya Frontier without any permission of Post Commander, thus creating a panic situation in the BOP. Another Court of Inquiry was ordered on 07.06.2014 to investigate the circumstances on which the respondent/writ petitioner deserted himself from Unit line i.e. Bn. HQ and also to ascertain the genuineness of the allegation of sexual harassment. 11
17. With regard to the charge framed under Section 40 of the Act of 1968 regarding allegation of the respondent/writ petitioner of sodomy with him, while the Court of Inquiry found such allegation to be incorrect but the respondent/writ petitioner has placed on record the medical report, according to which, he reported to NEIGRIHMS, a premiere hospital at Shillong, in the afternoon of 31.05.2014 at 1:45 PM that he was sexually assaulted by some unknown person at 2:00 AM on 31.05.2014 in the toilet of the barrack BSF, Mawpat. He suffered several injuries in the campus. Number, nature and location of injuries found on the body of the respondent/writ petitioner would speak for themselves which are as follows:-
"L/E-Injuries: 1. Abrasions on the back of (Lt) forearm-3x2cm, 12cm above (Lt) wrist.
2. Abrasions on (Lt)forearm-2.5x1.8cm, 7cm above (Lt)wrist.
3. Abrasions on the front of (Rt) forearm-3x2cm, 9cm above (Rt) wrist.
4. Abrasions on the back of (Rt) forearm-1x0.5cm, 19cm above (Rt) wrist.
5. Abrasions on the lateral aspect of (Rt) forearm-1.5cmx1cm, 1.5cm below (Rt) elbow. All abrasions are red in colour.
6. P/R examination-Tear at 6 O‟clock position cannot ascertain size. Tender touch proctoscopy could not be done."
18. The Summary Security Force Court has recorded the statement of Dr. Peter Daniel Sohliyakhariong of NEIGRIHMS, who has stated that on examination of the anal region of the respondent/writ petitioner, he (Dr. Peter Daniel Sohliyakhariong) saw a small tear (fissure-in-ano) at 6 O‟clock position. He however further stated that it could have been caused by any hard stool as there was no sign of inflammation on the anal region. But the 12 same doctor mentioned in the MLR that the anal region was tender to touch and owing to this reason, its proctoscopy could not be done. Moreover, multiple injuries found on left and right forearms near wrist of both hands, coupled with the injury on the anal region of the respondent/writ petitioner, provide credence to the allegation as such injury could be received because of positioning of the victim while he was sodomized. As for the negative final report by the police, since the police were investigating the allegation of sodomy on the members of BSF, it can be easily understood why it did not pursue the matter sufficiently enough to find the perpetrator of the crime. Therefore, the observation of the learned Single Judge to the extent that mere filing of negative final report does not lead to a situation where it can be said that no incident has at all taken place, may not in the facts of the case be totally unjustified. Inference drawn or opinion expressed by the doctor that such tear could be caused due to hard stool notwithstanding, the fact remains that the respondent/writ petitioner had some sort of injury in the anal region. Dr. Peter Daniel Sohliyakhariong had already taken the swab from that region and handed over to the police. As per his statement, he (Dr. Peter Daniel Sohliyakhariong) gave treatment for fissuseinano to the respondent/writ petitioner very conservatively and took the opinion of psychiatrist opinion for better management of the respondent/writ petitioner and also evaluated his psychological status in consultation with Dr. Arvind Nongpiur. We are therefore also inclined to uphold the finding that mere submission of the negative final report with regard to the allegation of the respondent/writ petitioner in so far domestic inquiry is concerned, cannot 13 be said to be totally false in the face whenever materials is available on record.
19. As regard to the charge pertaining to Section 19(a) that on 28.05.2014, the respondent/writ petitioner absented without leave from 1030 hrs to 1230 hrs, we find thatPW4-Inspector Adhya Singh in his statement has candidly admitted that the respondent/writ petitioner reported to him at about 0915 hrs on 28.05.2014 for out pass visit Nongmynsong State Bank of India and he (PW4) told him (respondent/writ petitioner) that he (PW4) would ask from adjutant and then will inform him (respondent/writ petitioner). Since the adjutant told him (PW4) that 2I/C is conducting ROE against the respondent/writ petitioner but on that day no statement was recorded, therefore he (PW4) would inform him (respondent/writ petitioner) later. After sometime, when he (PW4) looked for the respondent/writ petitioner in the area, he was not traced out. At about 10:50, he called the respondent/writ petitioner but the respondent/writ petitioner did not pick his phone and rang to tell him that he was near the office of IG and since his mobile was on silent mode, he could not give reply. At about 1200 hrs, the respondent/writ petitioner reported in the campus of 19th Battalion Mawpat and gave his written explanation regarding his arrival from FTR HQ (IG) Campus. This clearly shows that the respondent/writ petitioner did not respond to the call made by Inspector Adhya Singh due to the fact that his mobile phone was on silent mode and since IG was not available in office, he immediately returned back to Bn. HQ. Mawpat.
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20. With regard to the alleged absence from duty on 31.05.2014 from 1200 hrs to 1600 hrs and continued absence till 4th June 2014 while he was under „record of evidence‟ against him with reference to the disciplinary case pending against him, the stand of the respondent/writ petitioner was substantiated that he was hospitalized at that time which is evident from Exhibit-V (medical report) where the time of his arrival at the hospital was recorded at 1:45 PM on 31.05.2014. In view of above, we are inclined to uphold the finding of the learned Single Judge in so far charge No.(ii) under Section 40 and charge No. (iii) and (iv), both under Section 19(a) of the Act of 1968 are concerned. The findings recorded by the disciplinary authority to that extent suffer from perversity. Having regard to the totality of the facts and circumstances of the case, we are inclined to concur with the conclusion arrived at by the learned Single Judge, by relying on the judgment of the Supreme Court that absence of the respondent/writ petitioner from duty on 31.05.2014 when he was hospitalized, cannot be said to be wilful. We are however not inclined to interfere with the finding in the conclusion arrived at by the disciplinary authority with regard to charge No.(i) on which aspect, in fact, no specific finding has been returned by the learned Single Judge.
21. This Court is constrained to observe that, given serious allegations by the respondent/writ petitioner that he was subjected to sexual assault by unknown person at 2:00 AM on 31.05.2014 in the toilet of barrack of BSF, Mawpat, Shillong and which he disclosed this to the hospital authority immediately on arrival which fact found corroboration in the medical 15 report, despite the allegation of the respondent/writ petitioner against Shri Manish Kumar and others that they were involved in smuggling, the matter ought to have been inquired into by BSF authorities from the perspective of the respondent/writ petitioner about his physical abuse by fellow members of the Force, to check such menace in the four walls of their campus. No doubt, the Appellate Authority, taking a lenient view and considering that the respondent/writ petitioner had received two cash rewards and one appreciation card, commuted the sentence of dismissal from service to suffer rigorous imprisonment for 89 days in force custody and forfeiture of two years of service for the purpose of promotion, but in view of the peculiarities of the case, when analysis of material available on record reveals that while the first charge may be taken as proved but findings recorded on remaining three charges being perverse and further considering that the respondent/writ petitioner being a victim himself was rather on the receiving end, in our view, only first part of penalty would suffice the gravity of the allegations, particularly when the respondent/writ petitioner has already served out rigorous imprisonment for 89 days in Force custody and award of any further penalty to him would be shockingly disproportionate.
22. Considering that the petitioner has already served rigorous imprisonment for 89 days in Force custody, in the peculiar facts and circumstances of the present case, we are inclined to partly allow this appeal and direct that the sentence served out by the respondent/writ petitioner for rigorous imprisonment for 89 days in Force custody would 16 suffice for the finding of guilt on charge No.(i) as the entire order of penalty. We are however not inclined to uphold the judgment of the learned Single Judge to the extent of setting aside that part of the order of the Appellate Authority whereby it directed forfeiture of two years of service for the purpose of promotion. It is further directed that upholding of the penalty of sentence for rigorous imprisonment for 89 days in Force custody would not have any adverse effect on promotional prospects of the respondent/writ petitioner in any manner.
23. Writ appeal is accordingly allowed in part.
24. There shall be no order as to costs.
(W. Diengdoh) (Mohammad Rafiq)
Judge Chief Justice
Meghalaya
13.02.2020
"Lam AR-PS"
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