Mohinder Singh vs Union of India and others

Tejinder Singh Doabia, J.—The petitioner was reduced in rank. An order to this effect was passed on 03.06.1996. The petitioner

challenges this order. In addition to this, the petitioner submits that when his request for voluntary retirement was accepted then this should have

been accepted as if he was holding the post of Lance Naik and not on the post to which he stood reduced in rank. The second relief depends

upon the nature of relief which would ultimately be granted in this petition. In case the order of reduction in rank is found to be justifiable, the

second relief can obviously not granted. It is not necessary to go into the service profile of the petitioner.

What is relevant is the event which took place on the night intervening 31.03.1996 and 01.04.1996. The petitioner was put on Naka duty

opposite to international border. He was found remiss in the performance of duty. He was found sleeping in an improvised Jhuggi, on the night

intervening the two days referred to above. The petitioner was proceeded against in terms of section 40 of the Border Security Force Act. A

Summary Security Force Court was held on 03.06.1996. The petitioner was found guilty. The sentence was passed accordingly. The petitioner

submitted a representation to the Inspector General of Police. It is submitted that the sentence imposed on the petitioner has been duly

promulgated. For this reliance is being placed on an order dated 11.04.1996.

The petitioner challenges the proceedings of the court referred to above. It is submitted :

i. that the allegation levelled against him was false;

ii. that the petitioner had submitted a representation on 15.03.1996 for home posting. This was not done; and

iii. that Summary Security Force Court was conducted in breach of section 17 of the Act.

In addition to the above plea, it is submitted that under section 40, the term 'good order' means conduct which is prejudicial to the good order.

It is submitted that petitioner has done nothing which may be considered as prejudicial to good order. It is further submitted that order dated

25.06.1996 has been made effective from 23.06.1996. It is also submitted that proceedings were recorded in English and petitioner was not able

to understand the implication of what was attributed to him and also recording the nature of proceeding which were conducted in this regard.

The stand taken by the respondents is that petitioner was found sleeping. A Summary Security Force Court was held. The petitioner admitted

his guilt. The petitioner also tendered his voluntary retirement w.e.f. 05.06.1996. In this he has mentioned as Lance Naik. He was directed to

submit application in accordance with rank to which he stood reduced.

A perusal of the file indicates that the petitioner was given opportunity to indicate whether he pleads guilty or not. The petitioner pleaded guilty.

There is a endothersement dated 03.06.1996 which reads as under :

** The accused having pleaded guilty to the charge, the court explains to the accused the meaning of charge(s) to which he has pleaded guilty and

ascertains that the accused understands the nature of the charge(s) to which he has pleaded guilty. The court also inform the accused the general

effect of that plea and the difference in procedure which will be followed consequent to the said plea. The court having satisfied itself that the

accused understands the charge(s) and the effect of his plea of guilty, accepts and records the same. The provisions of Rule 142 (2) are complied

with.

On 22.06.1996, the petitioner submitted a representation to the Director General of the Force. In this he admits that Naka was checked. The

Inspecting Officer, however, found a hut near the Naka. This was objected to. He submitted that he had 30 years of service to his credit. He

further submitted that he was promoted as Niak. There has been nothing been adverse against him, that he should not have been punished. In yet

another communication dated 11.10.1996, he admits that there was a small hut. There were other personnel. These were Sukhdev Singh and

Gurmukh Singh. Sukhdev Singh had fallen ill. He was taken to hut. In this manner he submits that he should not have been punished. Statement of

Sukhdev Singh who appeared as P.W. 1 is to the effect that Mohinder Singh was not sleeping in the hut but he was lying there.

In his earlier statement, he had stated that Gurmukh Singh was infact looking after the Naka. Shri. S.N. Sharma who was the commanding

officer and he checked the Naka, makes following statement:

On 31.03.1996, NK Mohinder Singh, Ct. Sukhdev Singh and Ct. Gurmukh Singh were detailed for Naka No. 1 and they left Manihari BOP at

about 1830 hrs. for Naka duty. NK Mohinder Singh was Naka comd. Comdt accompanied by me left BOP, Manihari at 21.45 hrs. for Naka

checking. After checking four Nakas, We reached near Naka No. 1 at about 2215 hrs.! saw that Ct. Gurmukh Singh was on Naka duty. Nk

Mohinder Singh, Naka Comdr. and Ct. Sukhdev Singh were lying in the hut and taking rest there because Naka was closed at that time because

of moon light Ct. Gurmukh Singh who was on naka Duty challenged the checking officer. Then Comdt. went close to the hut and asked them ""why

you are in the hut"". He told them that he had given instruction not lay Naka in the hut. After this, we returned to the BOP, Manihari.

From the perusal of the statement of Shri S.N. Sharma, Commanding Officer, it becomes apparent that petitioner alongwith Sukhdev Singh

were inside the hut and it was Gurmukh Singh who was keeping the watch. The charge against the petitioner was that he was found sleeping. This

is so stated in para 3 of the reply, which reads as under:

That in reply to the contents of para 3, it is submitted that the petitioner was found sleeping in an improvised Juggi on the intervening night of

31stMarchlst April 1996 at about 2115 hours while he was on naka duty opposite to international border. That being so the charge framed under

section 40 of BSF Act against the petitioner is in consonance with the gravity of the offence.

As a matter of fact, in the summary of proceedings the exact charge against him is as under:

BSF Act U/S 40 : an act prejudicial to good order and discipline of the force. In that he, at BOP Manihari on intervening night 31st Mar/01 April

1996 at about 2115 hrs. while on naka duty opposite to International Border, was found sleeping in a improvised Juggi, contrary to standing

order.

If above be the situation then the question arises as to whether the petitioner against whom allegation was that he was found sleeping could be

punished on the ground that he was lying in the hut. Lying in the hut and sleeping in the hut are two distinct and different situations. As indicated, the

Inspecting Officer in his statement has categorically stated that Mohinder Singh and Suhkdev Singh were lying in the hut and were taking rest. Thus

the evidence which has come on the record and on which reliance has been placed is quite contrary to the statement of the officer who inspected

the naka. The charge against the petitioner was not that he was found lying in the hut. The charge against the petitioner that he was found sleeping.

Thus what has been ultimately found to have been proved against the petitioner is not projected by the P. W.2. This is a case where inference has

been drawn is not supported by the evidence of the record. The plea of guilty has to be examined visavizthe evidence which is there on the record.

The petitioner can be said to have pleaded guilty to his taking rest and not the act of sleeping. This distinction has to be kept in view. This is

because the consequence which ensue have serious civil consequence. It is accordingly held that the petitioner has been found guilty on the basis of

material and on the basis of evidence which does not support the charge. The proceedings of the Summary Security Force Court are held to be

vitiated. If this be the situation, the petitioner would be entitled to the second relief also. His voluntary retirement would have to be accepted against

the rank he was holding before the order of reduction in rank was passed. This petition is allowed in the manner indicated above. Normally, the

respondents would have been left free to hold fresh proceedings, however, as the charge levelled against the petitioner is not sustainable at all on

the basis of evidence which has come on the record, it has not been thought apt to put the petitioner to the rigour of facing another court. The

petitioner accordingly is held entitled to the benefit of post which he was holding before 03.06.1996.