WRIT PETITION 1204/2003 on 22 February 2001

1. W.P.(C) No.1204/2003 came up for hearing on February 18, 2014. Itwas disposed of by an order which reads as under:-

1. None appears for the petitioner at the hearing today.We have gone through the pleadings in the writ petition andthe counter affidavit. Record pertaining to the SummarySecurity Force Court trial concerning the petitioner has beenWe have gone through the pleadings in the writ petition andthe counter affidavit. Record pertaining to the SummarySecurity Force Court trial concerning the petitioner has been produced before us and we have perused the same.

2. Enrolled as a Constable in BSF on March 02, 1989, wenote that the petitioner has a past history of eitherunauthorisedly absenting himself by leaving the camp withoutpermission or overstaying leave.

3. Record would reveal that on May 04, 1991, forabsconding and being unauthorisedly absent for 81 days, RIof 28 days was inflicted upon the petitioner. For similarrepeated offence and unauthorised absence being of 68 days,on December 07, 1998 the petitioner was inflicted with apenalty of 14 days R.I. Apart therefrom, for overstaying leaveon 5 different occasions with a warning, either full pay orhalf pay leave was sanctioned. The periods of overstay arefrom April 09, 1993 to June 28, 1993 (81 days); July 28, 1997to August 26, 1997 (30 days); August 27, 1997 to October 17,1997 (52 days); March 13, 1999 to March 20, 1999 (8 days)and September 04, 2000 (1 day).

4. On February 21, 2001, in the morning, petitioner’sabsence was noted at the camp. The Battalion HavaldarMajor reported the absence to the GD Clerk who made anentry in said regards.

5. Three letters dated February 22, 2001, March 05, 2001and March 16, 2001 were sent to the petitioner at hispermanent address as disclosed by him and entered in theservice book. No response was received. Two apprehensionrolls were issued requiring the Superintendent of PoliceMeerut, U.P. to apprehend the petitioner who had desertedfrom a Central Paramilitary Force and produce the petitionerbefore the nearest camp of BSF. Two apprehension rollsdated February 23, 2001 and March 31, 2001 could not begiven effect to. The petitioner could not be apprehended evenby the police.

6. In the meanwhile, on March 21, 2001, a Court of Enquiry was ordered as per Section 62 of the BSF Act, 1968.On April 27, 2001 a show cause notice as per Rule 22 of theBSF Rules, 1969 was issued to the petitioner requiring him toshow cause as to why he be not dismissed from service.

7. The petitioner did not respond to the show causenotice.

8. The Commandant decided not to exercise power underRule 22 of the BSF Rules, 1969 and preferred to direct that aRecord of Evidence be prepared for the reason on May 10,2001, the petitioner voluntarily reported to the unit.

9. Taking cognisance of an offence reported and drawingup a charge as required by Rule 44 of the BSF Rules, 1969,the Commandant conducted hearing of the charge as requiredby Rule 45 on May 21, 2001. Notwithstanding that thepetitioner pleaded guilty, the Commandant decided thatRecord of Evidence be prepared and for which DeputyCommandant R.K.Singh was directed to do the needful.

10. Deputy Commandant R.K.Singh recorded statements ofthree witnesses during Record of Evidence proceedings andwe note that three witnesses: Ct.Sanjay Kumar Kundu PW-1,Assistant Commandant Khinav Raj PW-2 and SI (Ministerial)D.D.Sarkar PW-3 were examined. Ct.Sanjay Kumar deposedthat since November 1989 he was performing duties as a GDclerk and that on 07:00 hours on February 21, 2000 theBattalionHavaldarMajoroftheBattalionfoundthepetitioner absent; surrounding areas were checked. Petitionerwas not to be found. He made a GD entry to said effect. Thewitness was not cross-examined by the petitioner. AssistantCommandant Khinav Raj deposed that he was performingduring as an Adjutant during the relevant time. The petitionercame to him requesting to be sanctioned leave on February16, 2001. Leave was declined informing petitioner thateverybody had to report to the Company Headquarter. Hetold the petitioner that only thereafter with the prior permission of the Company Commander leave could beavailed of. The petitioner once again requested to besanctioned leave on February 20, 2001 which he refused.The petitioner absconded and started absenting himself witheffect from February 21, 2001. The witness was not cross-examined. SI (Ministerial) D.D.Sarkar deposed with referenceto the record that the petitioner was absenting without priorpermission from February 21, 2001 and he reported back onMay 10, 2001. Three letters dated February 22, 2001, March05, 2001 and March 16, 2001 directing petitioner to reportback immediately were issued. He deposed two apprehensionrolls dated February 23, 2001 and March 31, 2001 wereissued requiring the Superintendent of Police Meerut toapprehend the petitioner and produce him before the nearestBSF camp but the petitioner could not be apprehended. Heproved the show cause notice dated April 27, 2001 issued tothe petitioner. The witness was not cross-examined.

11. We need to highlight that in his defence statement madeduring Recording of Evidence as required by Rule 48(3) ofthe BSF Rules, 1969, the petitioner admitted leaving the campbut stated that he had applied for leave on February 20,2001.

12. As required by BSF Rules 1969, the Commandant ofthe Battalion considered the Recording of Evidence anddecided that case was made out to try petitioner at aSummary Security Force Court. A charge-sheet dated May24, 2001 for offence punishable under Section 19(a) of theBSF Act, 1968 was framed and served upon the petitioner. Wenote that as per Section 19(a), absenting oneself without leaveis an offence liable for being tried before a Summary SecurityForce Court.

13. Record would reveal that the arraignment took placebefore Summary Security Force Court on May 28, 2001.Petitioner pleaded guilty.Record would reveal that theopportunity was granted to make a statement in defence regarding mitigation of punishment; the petitioner declined.The record would reveal the compliance was made with Rules142 and 143 of the BSF Rules, 1969 and thereafter Recordingof Evidence was read and annexed as a record of trial. Thecourt considered the Recording of Evidence and the pastservice record. Penalty of dismissal from service was inflictedupon the petitioner. He submitted a representation underSection 117 of the BSF Act, 1968 which was rejected by theDirector General, BSF on November 05, 2002.

Conclusion

14. In the writ petition the petitioner pleads that he was notable to attend duties from February 21, 2001 to May 10, 2001being sick.

15. Now, the petitioner had ample opportunity to cross-examine the witnesses of the prosecution at the Recording ofEvidence with respect to said defence. He did not do so. Evenat the trial the petitioner made no attempt to prove that hewas sick. If at all the petitioner was sick, the evidence wouldbe found in the MI Room of the battalion for the reason wefind that in every BSF camp an MI Room is established wheremedical aid is available.

16. It is then pleaded that the petitioner was forced toplead guilty and was not given an opportunity to reply to thecharge-sheet.The record would reveal that the petitionerpleaded guilty when the Commandant took cognisance of theoffence reported. The petitioner pleaded guilty even when theCommandant proceeded to conduct hearing of the charge asper Rule 45 of the BSF Rules. At the Recording of Evidencethe petitioner did not cross-examine any witness. As notedabove, at the Recording of Evidence in his statement made thepetitioner never claimed of being unwell. He admitted that hewas unauthorisedly absent but stated that he had applied forleave on February 20, 2001. He stated that he was given anassurance that leave would be sanctioned.

17. As we have noted hereinabove, Assistant Commandant Khinav Raj has admitted to the fact that the petitioner hadmet him on February 20, 2001 with a request that leave besanctioned to him. He told the petitioner that leave could notbesanctionedtilltheCompanyreportsbacktotheHeadquarter. He told the petitioner that leave would besanctioned by the Commandant at the Headquarter.

18. It is apparent that no assurance whatsoever was givento the petitioner as claimed by him. It is apparent that thepetitioner was aware that he has committed an offence andthus at all three stages where he could project the defence hepleaded guilty.

19. It is then contended that the petitioner was notpermitted any assistance.

20. Record would reveal that AC Majjan Singh has actedas friend of the accused at the trial.

21. It is then pleaded that the petitioner was not providedwith the statements of the listed witnesses or with a copy ofthe charge-sheet.

22. The record would reveal that under cover of a letterdated May 24, 2001, which has been duly acknowledged bythe petitioner, he was served with the copy of the charge-sheetand Record of Evidence proceedings.

23. It is then pleaded by the petitioner that statements ofthe witnesses were not recorded in the presence of theCommandant and thus Rule 45 of the BSF Rules was violated.

24. The ground is neither here nor there for the reasonunder Rule 45 the Commandant conducts proceedingspertaining to hearing of the charge and decide whether asummary punishment should be awarded or the charge shouldbe dismissed or Recording of Evidence to be done. UnderRule 45 the Commandant does not record any statement of

any witness. Witnesses are examined and the statements arerecorded when Record of Evidence is prepared. The rules donot require the Commandant to prepare the Record ofEvidence. The Commandant can depute any officer to do so.The Rules require that after Record of Evidence is preparedthe same is considered by the Commandant to decide whethercase is made to inflict a summary punishment or dismiss thecharge or direct trial of the person concerned at a SummarySecurity Force Court.

25. Noting as above and influenced by the fact that pastconduct of the petitioner shows he to be a habitual absconder.i.e. availing self sanctioned leave or overstaying leave, wedismiss the writ petition but without any orders as to costs.

2. Seeking review, it is highlighted, a fact which we have already notedin our order that the writ petition was disposed of on merits withoutassistance from the side of the petitioner.

3. We have read the grounds on which review is sought and have calledupon learned counsel for the petitioner to ignore the order review whereof issought and argue the writ petition afresh.

4. Learned counsel for the petitioner states that keeping in view the orderreview whereof is sought he would only submit two points. Firstly that thecharge-sheet was vague and secondly absence from duty is not amisconduct.

5. We need not reproduce the facts and the proceedings held by theauthorities till the charge-sheet was issued and the petitioner was sent fortrial for the reason said aspect has already been dealt by us in the orderreview whereof is sought and today learned counsel for the petitioner saysthat he has not to argue anything on the pre-trial proceedings which wereconducted.

6. With respect to the charge-sheet served upon the petitioner before histrial commenced, the same has been annexed as Annexure P-4 and it readsas under:- “ CHARGE SHEET

The accused No.89243109 Constable Jai Karan Singh, A.Coy 0Bn BSF is charged with:- CHARGEBSFABSENTING HIMSELF WITHOUT LEAVESECTION-19(A)

In the he, at 07000 hrs on 21.2.2001 absented selffrom unit lines till 130 hrs on 10.5.2001.(Total absence period 087 days)

Please : 30 Bn BSF HQ.

Khajuwale (Raj.)

Dated: 21[st]May 2001

( K.C.SOOD)COMMANDANT30 Bn.BSF”

7. We fail to understand as to how it can be said that charge-sheet isvague. The charge-sheet conveys to the petitioner that he would be tried forthe offence punishable under Section 19(A) of the BSF Act. The factsalleged against him are that at 07:00 hrs. on February 21, 2001 he absentedfrom the Unit Lines for a period of 78 days and returned at 1:30 hrs on May10, 2001. Except for saying that the charge is vague, nothing else is beingargued.

8. On the second aspect that absence from duty is not a misconduct, wewould simply highlight that it is not a case of a simple absence. It is a caseof running away from duty from the Unit Lines. A disciplined member of anarmed force knows the importance of leaving the Unit Lines without

permission. Because jawans of BSF carry arms they are required to log theirdeparture and entry to and fro from the Unit Lines.9.No other point being argued,we dismiss the review petition byhighlighting that we have not insisted review petition to be argued strictlywithin the confines of a review petition. We have allowed learned counselfor the petitioner to argue the writ petition.Only two points were urgedwhich have been rejected.

10. No costs.

PRADEEP NANDRAJOG, J.

JAYANT NATH, J.

JANUARY 15, 2016mamta/skb