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Judgment
The petitioner has filed this writ petition making following
prayers:-
(I) may pleased to issue writ, order or direction declaring the proceedings of Summary Force Court and Sentence passed against the petitioner as illegal and void, further the orders dt.29.5.1998 (Annexure-3) and dt.21.12.99 (Annxure-5) may be quashed and set- aside.
(ii) may pleased to issue writ, order or direction, directing the respondents to re-instate the petitioner in ITBP Force with all consequential benefit or otherwise.
(iii) any other order deemed just and proper and in the interest of justice may also kindly be passed in favour of the petitioner.
(vi) Costs may also be awarded in favour of the petitioner."
Brief facts required for disposal of the present petition are
that the petitioner was appointed as a Constable in Indo-Tibet
Border Police Force (herein after referred to ''ITBP'') on 10/09/1987
and was promoted on the post of Lance Naik. While the petitioner
was posted at ITBP, it appears that a complaint was received by
the Commandant against the petitioner that the petitioner had
been involved in taking illegal gratification amounting to Rs.4 lac
@ Rs.40,000/- from ten civilians of the Rajasthan State;
Rs.40,000/- from one Rajneesh Kumar and Rs.15,000/- from one
Abdul Latif during 1997. An enquiry was conducted and it was
reported that the petitioner was posted at 23 rd Battalion of ITBP
and had been allowed to keep his family from 01/11/1996 to
30/10/1997 and he remained at the Headquarters of the said
battalion itself and there was no chance of the petitioner having
been involved in the alleged incident and there was a doubt
expressed of any such charge being true. However, it appears that
the charge-sheet was issued to him under Section 44 (e) of the
ITBP Act 1992. On the basis of the charge-sheet, Summary Force
Court conducted the trial and on 29/05/1998 promulgation was
declared by the Summary Force Court holding the petitioner guilty
and he was removed from service with immediate effect i.e.
29/05/1998 and the suspension period was treated as dies non
vide order dt.29/05/1998 itself.
The petitioner submitted a statutory appeal and claimed that
he was only charged on the basis of complaint of civilian Rajneesh
and Abdul Latif against whom criminal case had been registered
and there was a charge against them of having collected Rs.4 lac
from individuals. It was also stated that when the petitioner came
to know of such an action, he protested and in vengeance, the
said persons had also made a complaint against him regarding
collecting of the said amount from them. An argument was also
raised by the petitioner relating to the wrongful trial conducted by
the Summary Force Court and it was pointed out that as per Rule
42 of the ITBP Rules 1994, the Summary Force Court could not
have conducted the trial as it involved persons who were not
subject to the Act and whose identity was known. The appellate
authority vide order dt. 21/12/1999 dismissed the appeal
upholding the order passed by the Summary Force Court.
Learned counsel for the petitioner submitted that the case
could not have been tried by the Summary Force Court. He also
submitted that the charge essentially required the statement of
the civilians to be recorded before the enquiry officer but the
Summary Force Court has acted in an arbitrary manner and
proceeded to hold the petitioner guilty. It is submitted that there
was no evidence for proving the charge and it is a case where
there was no evidence before the Summary Force Court but in-
spite of that he has been held guilty and punished. It is also
submitted that no reason has been supplied before passing the
punishment order. It is submitted that once he was found to be
not guilty, prima facie, the Summary Court Force could not have
punished him. It is also submitted that the issue relating to the
jurisdiction of the Summary Force Court to try the offence was
raised by him in appeal which has also not been addressed to by
the appellate authority where the statutory petition was filed and
therefore, the appellate order also deserves to be set aside and
the petitioner is entitled for reinstatement.
Per-contra, learned counsel for the respondents submits that
as the petitioner in his appeal has mentioned about his knowledge
of the money having been collected by the concerned persons
namely; Rajneesh Kumar and Abdul Latif, it has to be presumed
that he was in hands and gloves with them and the Summary
Force Court has rightly punished the petitioner. With regard to the
issue relating to Rule 42 of the ITBP Rules 1994, it is submitted
that the same is discretionary and not mandatory.
Heard counsel for both the parties and perused the material
available on record.
The issue before this Court is whether the provisions of Rule
41 & 42 of the ITBP Rules 1994 are of discretionary or mandatory
in nature. A look of ITBP Rules, 1994 shows that the same is part
of Chapter VI of the ITBP Rules, 1994 which lays down the choice
of jurisdiction between Force Court and Criminal Court. Rule 41 &
42 of the ITBP Rules, 1994 provide as under:-
Trial of cases either by Force Court or Criminal Court.-(l) Where an offence is triable both by a criminal court and a Force Court, an officer referred to in section 92 may,
(i) (a) where the offence is committed by the accused in the course of the performance of his duty as a member of the Force; or
(b) where the offence is committed in relation to property belonging to the Government or the Force, or a person subject to the Act; or
(c) where the offence is committed against a person subject to the Act,
direct that any person subject to the Act who is alleged to have committed such an offence, be tried by a Force Court; and
(ii) in any other case, decide whether or not it would be necessary in the interests of discipline to claim for trial by a Force Court any person subject to the Act who is alleged to have committed such an offence. (2) In taking a decision to claim an offender for trial by a Force Court an officer referred to in section 92 may take into account all or any of the following factors, namely:
(a) the offender is on active duty or has been warned for active duty and it is felt that he is trying to avoid such duty;
(b) the offender'' is a young person undergoing training the offence is not a serious one and the trial of the offender by a criminal court would materially affect his training;
(c) The offender can, in view of the nature of the case, be dealt with summarily under the Act. "
"42. Cases which may not be tried by Force Court-
Without prejudice to the provisions of sub-rule (1) of rule 41, an offender may not normally be claimed for trial by a Force Court:-
(a) where the offence is committed by him alongwith any other person not subject to the Act whose identity is known; or
(b) where the offence is committed by him while on leave or during absence without leave."
While Rule 41 of the ITBP Rules, 1994 deals with the cases
where the office is triable both by a criminal court and a Force
Court, Rule 42 very specifically mentions cases which cannot be
tried by the Force Court.
While interpreting the provisions of law, one may fall back to
the various principles which have been aptly laid down by Justice
GP Singh, Former Judge of MP High Court in his book on the
''Principles of Statutory Interpretation''. The first and foremost
method, as indicated by him to interpret a provision of a statute,
is to see the intention of the legislature. He says ''the statute is as
an addict of the legislature and the conventional way of
interpreting or construing a statute is to seek the intention of its
maker. A statute is to be construed according to the intent of that
makes it. while quoting RMD Chaman Vs. UOI: AIR 1957 (SC) 628
(Page.631). In words of Salmond Jurisprudence, 11th Edition, Page
152, "Object of interpreting a statute is to ascertain the intention
of the legislature enacting it.". The duty of the judicature is to act
upon the true intention of the legislature... mens or sententia legis.
If the statutory provision is opened to more than one
interpretation, the Court has to choose that interpretation which
reads the true intention of the legislature, in other words, the
legal meaning or true meaning of the statutory provision.
Keeping the aforesaid guidelines under consideration, if we
look to the provisions of the ITBP Rules, 1994, it would be seen
that these rules are specifically meant for the personnel of Indo
Tibetan Border Force which is a disciplined force. Once a rule has
been made, the same therefore will have a mandatory character
for the purpose of the disciplined force. The rule has to be read in
a mandatory form. If discretion is allowed to interpret the rule
differently by different persons, result would be administrative
chaos.
Keeping this aspect in mind, if we consider the language of
Rule 42, which starts with a clause as an exception to provisions
of Rule 41, it has to be given its true interpretation to be of
mandatory form. The word ''claimed'' also relates to the offender.
Thus, the discretion does not lie with the respondents for placing
the case before Summary Force Court in matters where a
complaint is made or the person, who is not member of the force,
is involved in the offence as alleged to have been committed by
the person subject to the Act. This is so because the concerned
civil staff would not be summoned by Summary Force Court and is
not amenable to the ITBP Act of 1992 or the Rules of 1994
In view of what has been stated herein above, it is held that
Rule 42 of the ITBP Rules of 1994, is of mandatory form and the
word "may" used therein means "shall" and the respondents could
not have conducted summary force court in a case where the
offence is said to have been committed by a personnel of ITBP
alongwith any other person not subject to the ITBP Act whose
identity is known or where offence is committed by him while on
leave or during absence without leave.
Taking into consideration the facts of this case where there is
a charge levelled against the petitioner with regard to involvement
of taking money from civilians for the purpose of appointment,
while on leave conspiring with two other persons, which relates to
two persons also namely; Rajneesh Kuamr and Abdul Latif, who
were admittedly involved in collection of money from other civilian
persons and whose evidence was essentially required during
Summary Force Court, the entire proceedings undertaken by the
Summary Force Court stand vitiated in law firstly on the ground of
being in violation of Rule 42 of the Rules of 1994, secondly on
account of not in consonance with the principles of natural justice
as no evidence was recorded and thirdly the order passed by the
Summary Force Court dt.29/05/1998 is also without assigning any
reason. In the view of this court, the order is wholly laconic and
therefore, deserves to be set aside.
In the statutory petition, a specific ground has been taken by
the petitioner regarding jurisdiction of the Summary Force Court
which has also not been addressed at the appellate stage. The
appellate order dt.21/12/1999, therefore, also deserves to be set
aside and the petitioner deserves to be held entitled for
reinstatement in service with continuity of service and all
consequential benefits. However, taking into consideration the fact
that the punishment relates way back to the year 1998, the
petitioner is entitled for back wages to the extent of 50% only.
Consequently, the writ petition stands allowed. The orders
impugned dt.29/05/1998 and 21/12/1999 are hereby quashed &
set aside and the respondents are directed to reinstate the
petitioner with all consequential benefits including continuity of
service etc. and the petitioner would be entitled to notional
fixation of pay but the actual benefits would be given to him of the
back wages to the extent of 50% only. The compliance of the
order be made within a period of three months from the date, the
certified copy of the same is submitted in the office of the
respondents.