Union of India (UOI) and Others vs Samir Kr. Nag.

M. Ramakrishna, C.J.—Mr. Samir Kumar Nag, the Respondent herein was the Petitioner in Civil Rule No. 2173/94 in which the writ Petitioner challenged the findings and the punishment imposed on the writ Petitioner by the Border Security Force (BSF in short) Court resulting in not only imprisonment for a period of six months but also an order of dismissal arising out of an enquiry held against the writ Petitioner by the BSF Court. The learned Single Judge by an order made on 8.8.97, after hearing the learned Counsel on both the sides, set aside both the findings and the punishment and allowed the writ petition restoring the service of the Petitioner and the consequential benefits including the backwages. Aggrieved by this order of the learned Single Judge, Appellants No. 1 to 6 have presented this appeal challenging the correctness and the legality of the order passed by the learned Single Judge on the grounds taken in the appeal.

We have heard the learned Counsel on both the sides.

Shri K.P. Sarma, learned Addl. Central Govt. Standing Counsel, who having taken us through the grounds of appeal, the findings recorded by the learned Single Judge and other relevant facts, urged the following points in support of the appeal:

(1) That the learned Single Judge committed an error in recording a finding that the punishment imposed against the writ Petitioner was disproportionate.

(2) That the learned Single Judge was not right in holding that even though that Force (BSF) in which the writ Petitioner was serving was known to be a disciplined Force, but still, recording a finding against the Appellants and interfering with the punishment imposed by the BSF Court is erroneous.

Mr. Sarma maintained that regard being had to the provisions of Section 20 read with Section 50 of the Border Security Force Act, 1968, hereinafter referred to as the Act, 1968. Punishment is justifiable in the light of the judgment of the Calcutta High Court as reported in G.P. Singh and Others Vs. Shanti Ranjan Sarkar, .

Contrary to these argument of Mr. Sarma, the learned Addl. C.G.S.C. Mr. A.S. Choudhury, learned Counsel appearing for the Respondent/writ Petitioner, has however argued the following points:

(1) The competent authority who framed the charge invoking the provisions of Clause (c) of Section 20 of the Act, 1968 with a view to impose punishment upon the writ Petitioner on the presumption that the writ Petitioner used "insubordinate language" to such officer as found under Clause (c), committed a serious error in not understanding the implication of the language much less the intendment of the legislation, in arriving at a conclusion that a case is made out in the instant case proving the said charge against the writ Petitioner.

(2) The punishment sought to be imposed upon the writ Petitioner based upon the finding that the above said charge is proved, is again grossly erroneous inasmuch as if the very basis of the charge framed were to fail, then the entire punishment is required to be set aside.

(3) The last submission of Mr. A.S. Choudhury is that although a specific ground had been taken in paragraph 18 at page 15 of the writ petition wherein a specific ground had been invoked stating:

Charges inflicted u/s 20(b) and 20(c) does not apply in this case and hence the order of punishment u/s 20(b) and (c) is illegal and liable to be set aside.

To reiterate, the submission of Mr. Choudhury is that the learned Single Judge though did not record a finding on the above ground in the course of the order under appeal, since the Writ Court was able to give relief to the writ Petitioner on some other ground, the appellate Court may consider this aspect of the matter to record a finding.

In view of the. argument advanced by both sides, the following points arise for our consideration in this writ appeal:

(1) Whether the charge framed invoking Section 20(c) of the Act, 1968 with a view to maintain a punishment based upon proving of the charge, whether the Respondents were able to convince this Court that there was a charge sustainable based on the so called "insubordinate language" made against the writ Petitioner ?

(2) Whether in the event of the Court taking a view in favour of the writ Petitioner/Respondent, would he be entitled for back-wages from 1989, if the other reliefs are given to him?

We will take up the first point for consideration.

To reiterate in order to appreciate the argument advanced by Mr. A.S. Choudhury, learned Counsel for the Respondent/writ Petitioner in the appeal, the Court will have to consider whether the charge as framed by the BSF Court invoking Clause (c) of Section 20 of the Act, 1968 could be sustained, inasmuch as according to the learned Counsel, regard being had to the language employed in the instant case, whether it can be said to be abusive language or "insubordinate language" as found in the said Clause (c) of Section 20 of the Act, 1968.

By a careful consideration of the judgment and the order of the learned Single Judge, it is seen that though a specific ground, being No. 18, was taken in the writ petition as extracted above, the learned Single Judge did not find it necessary to appreciate this ground and to record a finding for the purpose of granting appropriate relief inasmuch as, the Writ Court had granted relief on certain other ground.

The allegation as found in the instant case against the writ Petitioner is that he, at Lakhipur BOP "D" Company Headquarters on 10.7.87 at about 1940 hours when ordered by Subedar (New AC) D.S. Negi Coy 2 I.C. not to create nuisance in the Coy. Mess, misbehaved with him and said:

I have never cared for the orders of superior commanders and I am least bothered for any action, I can teach them a good lesson also.

and words to that effect.

It is this allegation which is made a basis for the purpose of making out a case against the accused in the BSF Court which we are required to consider very carefully. In the BSF Court, a number of witnesses had been examined including Balwinder Singh (PW 1) and Mr. D.G. Negi (PW 2). Mr. K.P. Sarma has produced the original records to enable us to understand as to how the competent authority proceeded to understand the allegation as contained in the charge. In other words, the specific charge is based upon the so called language said to be "insubordinate" as found in the allegation as extracted above.

It is plain that as viewed in the records including the depositions of the two witnesses, Mr. Balwinder Singh and Mr. D.S. Negi, who had been examined in the BSF Court when the so called "insubordinate" language said to have been made by the accused is made in the presence of Balwinder Singh (PW 1), who in turn went and communicated it to Mr. Negi, the Commanding Officer, Subedar. Therefore, the Court will have to understand whether the so called "insubordinate language" said to have been used by the accused was not made strictly in the presence of the person concerned, but was made in his absence. In other words, if the said language is said to have been communicated by Mr. Balwinder Singh to Mr. D.S. Negi, the Court will have to find out whether it would constitute an office as found in Clause (c) of Section 20 of the Act, 1968.

Let us understand the intendment of the legislation with a view to appreciate this aspect of the matter. Section 20 of the Act, 1968 states.

Striking/threatening Superior Officers - Any person subject to this act who commits any of the following offences, that is to say:

(a) ....

(b) . . .

(c) uses insubordinate language to such officer ;

shall, on conviction by a Security Force Court;

(A) if such officer is at the time in the execution of his office or, if the offence is committed on active duty, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned : and

(B) in other cases, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned ;

Provided that in the case of an offence specified in clause.

(C) the imprisonment shall not exceed five years.

(emphasis supplied)

In the light of the foregoing, the Court will have to apply its mind and to understand as to whether if the writ Petitioner/accused is said to have used certain language not in the presence of his Commander, D.S. Negi, but in the presence of Mr. Balwinder Singh, whether such language presuming to be "insubordinate language" not blurted in the presence of the person concerned but in his absence, could be said to be an offence coming within the purview of Clause (c) of Section 20 of the Act, 1968.

By a consideration of Section 3 of the Indian Evidence Act, 1872, hereinafter referred to as the Act, 1872, it is made clear that there is a distinction between the original and the unoriginal or hearsay evidence. Analytically understanding the distinction, it is made clear that:

The next division of evidence is that into original or unoriginal. The original is that which a witness reports himself to have seen or heard through the medium of his own senses. Unoriginal, also called derivative, transmitted, second hand or hearsay, is that which a witness is merely reporting what he himself saw or heard, not what has come under the immediate observation of his own bodily senses, but what he has learnt respecting the fact through the medium of a third person. (Please see Commentary by Best, 11th Edition, Section 29).

It is further made clear in the 14th edition, 1993 of "Sarkar on Evidence " by Sarkar that:

The ordinary idea of hearsay to a lay mind is that which the term conveys - something that is heard from a third party by the witness before the Court. This is of course one, if not the most common form of hearsay, but the term includes also writings as well as verbal statements - in fact all statements made behind the back of the party to be affected by them. Thus a letter which A writes to B concerning C, or his affairs, is excluded as having any effect on C, just the same as if the statement had been verbal." (Please see page 15 of the Commentary by Norton under chapter "Introduction". As to "hearsay" see Section 60 in the edition).

In the context of what is stated by the Commentator dealing with Section 3 of the Act, 1872, it is abundantly made clear that, if what is blurted out by the accused in the presence of Balwinder Singh (PW 1) particularly referring to the third person Mr. D.S. Negi, presuming that it is insubordinate language, but still that abusive language or insubordinate language was not made directly in the presence of Mr. Negi, the Commanding Officer. But on the other hand, it has admittedly been communicated by Mr. Balwinder Singh after some time. To add further, admittedly, the abusive language or insubordinate language said to contain in the charge, was made on 10th July, 1987 whereas the charge was framed on 30th December, 1988. Therefore, the Court will have to find out as to whether even if this language said to have been used by the accused in the absence of Mr. D.S. Negi and in presence of Mr. Balwinder Singh, who said to have communicated it to Mr. Negi thereafter, would it amount to "insubordinate language?

There is no difficulty for the Court to understand the intendment of this legislation inasmuch as the language used in Clause (c) of Section 20 of the Act, 1968 extracted above clearly goes to show that if such language is used to such officer, meaning thereby in his presence directly to him, would amount to an offence and not in his absence which is later on communicated by a third person. This aspect of the matter has not been considered by the learned Single Judge though we have to consider it with a view to find out as to whether ground No. 18 taken in the writ petition which is required to be considered by the Court to make out a case that the charge as brought out based upon such allegation cannot be sustained in law, as pointed out by Mr. A.S. Choudhury.

Mr. K.P. Sarma, learned Addl. C.G.S.C. has not been able to convince us to the contrary. Therefore, if once we arrive at a conclusion that the charge No. 2 that:

he, at Lakhipur BOP Coy Hqrs. of "D" Coy on 10.7.87 at about 1940 hrs, when ordered by CHM Balwinder Singh to go and report to Subedar (Now AC) D.S. Negi Coy 2 IC refused to go and said "who is he to call me" and words to that effect.

which is based upon Clause (c) of Section20 of the Act, 1968 were to fail, then no punishment as imposed by the Court could be sustained inasmuch as the first part of the charge though said to have been proved in the BSF Court, the disciplinary authority did not agree with the finding. Therefore, we need not trouble ourselves with the first point.

In view of foregoing, we need not consider the other aspect.

In the result, the writ petition is allowed not on the ground which the learned Single Judge has considered for the purpose of giving relief, but on the ground referable to the finding recorded by us in this appeal. The Appellant has not been able to make out a case to interfere with the other findings inasmuch as it is not necessary for us to consider the other findings.

We will now discuss about the second point. It is admitted fact that the order of dismissal having been made on 2.2.89, the writ Petitioner has been suffering from difficulties and disqualification by the order of punishment. Now by virtue of the conclusion we have reached in this appeal, the writ Petitioner would be entitled for restoration of his entire service including backwages.

However, we asked Mr. Choudhury that regard being had to the circumstances under which this case has come up for consideration, inasmuch as there is no proof or Certificate produced by the writ Petitioner/Respondent in this Court that during the interim period of about nine years, the writ Petitioner had remained without any income. On the other hand, Mr. Choudhury fairly submitted after consulting his client that, he has no objection to foregoing 50% of the backwages. We have recorded his submission.

In view of the foregoing, the appeal stands disposed of. The order of the learned Single Judge stands modified to the extent indicated by us in this order. The writ Petitioner/Respondent shall be entitled for restoration to service without any stigma for the purpose of earning his increments and pension, and continuous service for the benefit of promotion ; but he shall be entitled for only 50% of the backwages required to be calculated and paid in accordance with the law within a period of 3 (three) months.

Let a copy of this order be served upon the Central Govt. Standing Counsel so that he may inform Appellants so as to enable them to comply with the directions given by us.