* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on : 17th February, 2010 Date of decision: 31st May, 2010 + W.P.(C) No.236/2000 EX. L/NK VIMAL KUMAR SINGH ..... Petitioner Through Mr. K.K. Jha, Adv. versus UNION OF INDIA & ORS. .... Respondents Through Mr. Rajat Gaur, Adv. with Mr. Yadhunath Singh, Deputy Commandant CORAM: HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE VIPIN SANGHI 1. Whether reporters of local papers may be allowed to see the Judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes GITA MITTAL, J 1. By this writ petition, the petitioner assails an order and sentence dated 17th February, 1999 passed by the Summary Security Force Court (hereinafter referred to “SSFC” for brevity) finding the petitioner guilty of an offence under Section 26 of the Border Security Force Act, 1968 (hereinafter referred to “BSF Act” for brevity) and the sentence of dismissal from service. The petitioner also assails the action of Deputy Inspector General, respondent no. 2 in countersigning the dismissal order on 8th April, 1999 and the order dated 13/16th W.P.(C) No. 236/2000 Page 1 of 43 August, 1999 whereby the petitioner's revision petition under Section 117 (2) of the BSF Act was rejected by the respondent no.2. 2. The petitioner was enrolled on 1st April, 1986 into the Border Security Force. In 1995, he was promoted as a lance naik and finally posted to 130Bn B.S.F. located at Salbagan, Tripura in which position he was serving at the time of the incident resulting in the passing of the impugned orders. 3. It is alleged that while returning from patrolling duty along with Inspector D.K. Das on 26th December, 1998 at about 1700 hours, the petitioner got down in Madhopur on the pretext that he wanted to buy meat. Thereafter, information was received by Inspector D.K. Das at about 1830 hours to the effect that the lance naik 'Ustad' was going to die for the reason that he was moving towards a dangerous area in Deo Verma village in a state of intoxication carrying meat and was abusing everybody he met on his way. On receipt of this information, Inspector D.K. Das immediately reached the spot along with four other officials. Both the petitioner and a civilian were brought back to the headquarters for further proceedings. On a physical examination of the petitioner, a liquor bottle was found concealed inside the petitioner's shirt which fell down and broke, besides packets of cigarette and two match boxes. 4. A written complaint dated 27th December, 1998 was made by Inspector D.K. Das in this regard to the Commandant and Sh. W.P.(C) No. 236/2000 Page 2 of 43 P.V. Eappen, D.C. In this complaint, Inspector D.K. Das had informed the Commandant, 130 Bn., BSF, Salbagan (Agartala) that the petitioner was a habitual drunkard & that instead of performing statutory duties, the force personnel were compelled to protect the petitioner because of his wayward behaviour. Reference was also made to an earlier incident of 24th December, 1998 involving the petitioner as well and it was submitted that proper action be initiated against him. 5. On this complaint, the Deputy Commandant, Shri P.V. Eappen, who was also adjutant of the company, endorsed the following remarks:- “L/NK. Vimal Kumar Singh is a habitual drunkard and complaints against him have been continuously received. Recently he has been punished U/S 26. As he is not likely to improve nor is there any effect of minor punishment on him, a strict disciplinary action may kindly be initiated against him.” 6. The commandant proceeded to hear the charge in accordance with Rule 45 of the Border Security Force Rules, 1969 (hereinafter referred to “BSF Rules” for brevity). An offence report dated 28th December, 1998 under Rule 43 was prepared alleging that on 26th December, 1998 at about 1700 hours, the petitioner was found in the state of intoxication at Madhopur Market. The list of witnesses was also mentioned in the offence report. So far as the documents relied upon were concerned, only the complaint dated 27th December, 1998 was referred to. The respondents have contended that the charges W.P.(C) No. 236/2000 Page 3 of 43 against the petitioner were read out and explained and the available documents furnished to him. Opportunity to cross- examine the five prosecution witnesses was given which was declined by the petitioner. 7. On completion of hearing of the charge, Shri Raj Singh, the Commandant, 130 Bn, BSF directed preparation of an Abstract of Evidence under Rule 49 of the BSF Rules and detailed the aforesaid Shri P.V. Eappen, Deputy Commandant for the same. 8. In the abstract of evidence which was recorded by Shri P.V. Eappen, eight witnesses namely PW 1 - Inspector D.K. Das, PW II - SK Deb Barman, PW III - Kishan Lal; PW IV - Chandan Singh; PW V - Baldev Singh, PW VI - Sweeper Desh Raj, PW VII - HC Nagendra Jha & PW VIII - Jethu Singh, were examined between 30th & 31st December, 1998. The abstract of evidence shows that PW I, II, III, IV, V, VII & VIII have deposed about the happenings of 26th December, 1998. Additionally, Head constable Nagendra Jha as PW VII gave evidence about a similar incident on 24th December, 1998. This witness further stated that when the petitioner was brought back to the company on 26th December, 1998 and was being searched, he took out a liquor bottle from his vest and threw the same in the verandah. PW VIII stated that the petitioner was medically examined on the 26th of December, 1998 at 2245 hours by Dr. B.B. Thapa and produced the medical examination certificate before the officer recording the abstract of evidence. W.P.(C) No. 236/2000 Page 4 of 43 9. The respondents have also pointed out that after recording the evidence of these witnesses, in compliance with Rule 48 (3) of the BSF Rules, the petitioner was given an opportunity to make a statement after having been duly cautioned. The petitioner made a statement before the officer recording the abstract of evidence on the 4th January, 1999 stating that he had consumed liquor before his lunch. He stated that when confronted by the company commandant, he was neither under the influence of liquor nor drunk as alleged by the witnesses. The petitioner also attributed the purchase of the liquor bottle, in his possession, as having been bought for Inspector D.K. Das and that it had fallen out when he was removing the bottle from his underclothes. The petitioner prayed for grant of one last chance. 10. It is an admitted position before us that the petitioner was placed under close arrest vide the order dated 27th December, 1998 and under open arrest with effect from 6th January, 1999 in terms of Rule 33(2)(a) of the BSF Rules. 11. On a consideration of the abstract of evidence, the Commandant passed an order dated 13th February, 1999 directing that the petitioner would be tried for an offence committed by him under Section 26 of the BSF Act, 1968 by a Summary Security Force Court ('SSFC' hereafter for brevity). 12. The charge on which the petitioner was arraigned to stand trial before the SSFC read as follows :- W.P.(C) No. 236/2000 Page 5 of 43 “BSF ACT, 1968 SECTION 26 'INTOXICATION' In that he, at Madhopur Market on 26.12.98 at about 1700 hrs was found in a state of intoxication.” 13. The proceedings of the Summary Security Force court were held on 17th February, 1999 by the commandant. The petitioner was assigned Shri R.V. Yadav, Assistant Commandant of the battalion as the friend of the accused, in accordance with Rule 157 of the BSF Rules, 1969. The chargesheet was stated to have been read and explained to the petitioner. 14. The proceedings of the court conducted on 17th February, 1999 have been placed before this court. The commandant has recorded that he satisfied himself that the accused understood the charges as well as the difference in the procedure which would be followed by the court consequent upon a plea of 'guilt'. 15. It is contended by the respondents that the petitioner pleaded guilty to the charge and that, consequently, the respondents followed the procedure prescribed under Rule 142(2) of the BSF rules. No evidence was recorded by the Summary Security Force Court. After recording a plea of guilty and returning the finding of guilty of the charge, the abstract of evidence prepared earlier is stated to have been read over and explained and attached to the proceedings. 16. It is noteworthy that the SSFC gave an opportunity to the petitioner to make a statement in reference to the charge or in W.P.(C) No. 236/2000 Page 6 of 43 mitigation of the punishment. The SSFC has recorded that the petitioner had set up a plea for award of minimum punishment and had refused to call any witness as to his character. 17. So far as the report of his general character was concerned, the court received a report of poor conduct and that the petitioner had rendered service of over twelve years and ten months with the force. Upon a consideration of these matters, the SSFC directed that the petitioner be dismissed from service. The findings and orders of the SSFC were countersigned by the Dy. Inspector General, respondent no.2, on 8th April, 1999. 18. The petitioner has made a grievance that he was not given any copy of the record of the abstract of evidence or proceedings of the court until the 8th of June, 1999. The sentence of the SSFC was promulgated and implemented immediately. The petitioner has contended that he was handicapped by the non-availability of any record and prejudiced in filing the statutory appeal under Section 117(2) of the BSF Act challenging the sentence of the SSFC. The submission is that the petitioner had submitted his petition under this provision on 18th April, 1999 reserving his right to submit additional grounds. Copy of the record was sent to the petitioner under the cover of a communication dated 28th May, 1999 and was actually received by him only on 8th June, 1999. In these circumstances, the petitioner submitted additional grounds on 14th June, 1999. The respondent no.2 has rejected both these petitions vide the impugned order dated 13/16th August, 1999 simply stating that the petitions were devoid of merit. W.P.(C) No. 236/2000 Page 7 of 43 19. Before this court, the petitioner has vehemently challenged the charges which were framed against him as well as the procedure adopted by the respondents. The petitioner has contended several violations of Rule 49 as well as 48(3) of the BSF Rules by the officer who has recorded the abstract of evidence. 20. The petitioner has challenged the impugned orders inter alia on grounds of procedural irregularities which go to the root of the exercise of jurisdiction by the respondents. The petitioner contends that he was seriously prejudiced and that the rules of natural justice were outrightly flouted as Shri P.V. Eappen, DC who was detailed to prepare the abstract of evidence was actually one of the complainants against the petitioner and had endorsed his adverse view against the petitioner on the complaint. Violation of principles of natural justice is, therefore, contended. 21. The petitioner assails the record of a plea of guilty to the charges prepared by the respondents. The petitioner has vehemently disputed the correctness and authenticity of the record prepared by the respondents on the ground that the same does not bear his signatures. It is urged that evidence of the material civilian witnesses including the alleged informant and the person who was accompanying the petitioner has not been recorded. The submission is that even the statement attributed to the petitioner does not support the allegations and W.P.(C) No. 236/2000 Page 8 of 43 that there is no evidence to support the charge of intoxication. He submits that the admission, if any, was only to the extent that he had consumed liquor when he was not on duty. He had not admitted to being intoxicated. The medical report prepared by the doctor also did not support the charge of his being intoxicated. 22. It is urged that none of the statutory protections were ensured, that the charges or the consequences of the pleas were not explained. The petitioner has challenged the certification with regard to compliance with the statutory rules by the officer recording the abstract of evidence as well as the proceedings based thereon conducted by the commandant. The petitioner has urged bias against both of them. 23. It is contended that having regard to the serious consequences which resulted to the petitioner, the respondents were bound to strictly comply with the statutory provisions as well as the principles of natural justice in letter and spirit. It is further submitted that in any case the sentence imposed on the petitioner was grossly disporportionate to the nature of allegations against the petitioner. 24. Learned counsel for the respondents has on the other hand vehemently defended the action which has been taken against the petitioner. According to him, the petitioner voluntarily admitted his guilt and all statutory provisions & procedural safeguards have been complied with leading to the inevitable W.P.(C) No. 236/2000 Page 9 of 43 conclusion of guilt of the petitioner. Mr. Rajat Gaur, learned counsel has submitted that the punishment imposed on the petitioner in the given facts was justified and fair. 25. We may first examine the petitioner's contention that the action of the respondents is unsustainable on the ground that preparation of the abstract of evidence was assigned to an officer who had already taken a strong view against the petitioner in writing and that his bias has resulted in denial of statutory protection and a fair trial to the petitioner. 26. We find that it is undisputed that Shri P.V. Eappen who was a Deputy Commandant and had been appointed the adjutant of the battalion, endorsed the abovenoted comments on the complaint dated 27th December, 1998 of Inspector Das. A bare reading of these comments would show that Shri P.V. Eappen had taken a clear view so as the conduct of the petitioner is concerned. The question which has to be answered is as to whether this would vitiate the further proceedings conducted by him in preparing the abstract of evidence on the ground that he was biased against the petitioner; as well as the consequent and ensuing proceedings of the SSFC, its finding of guilt against the petitioner and the order of sentence imposed on him thereafter as illegal on the ground that they violated principles of natural justice. 27. We find that the written complaint dated 27th December, 1998 was addressed by Inspector D.K. Das to Shri P.V. Eappen W.P.(C) No. 236/2000 Page 10 of 43 who had thereon endorsed remarks to the effect that the petitioner was in the habit of imbibing liquor and that constant complaints against him were being received. Shri Eappen had also stated that the petitioner had been recently punished under Section 26 of the BSF Act. It was his clear view even at that stage that the petitioner was incapable of being reformed and that minor penalties on him would have no deterrent effect. In his note on 27th December, 1998 Shri Eappen had recommended that strictest disciplinary action be taken against the petitioner. These comments are self-explanatory in nature and manifest the obvious opinion he held of the petitioner. 28. The Supreme Court had occasion to consider the legality of a challenge to an order of dismissal from service passed by a General Security Force Court constituted under the Border Security Force Act in the judgment reported at AIR 2003 SC 1416 Union of India Vs. B.N. Jha. The court's observations on the spirit, purpose and intendment of the statute, applicability of principles of natural justice and bias of the court deserve to be considered in extenso and read as follows :- “17. The scheme of the Act and the Rules leading to holding of a trial by the General Security Force Court leaves no manner of doubt that the basic principles of natural justice have been codified therein. The provisions of the Act and the Rules in no uncertain terms envisage protection from bias against an officer. We may notice that the Act which was enacted in the year 1968 even sought to fill up the gaps occurring in other Acts like Army Act, Navy Act or Armed Forces Act in this behalf so as to W.P.(C) No. 236/2000 Page 11 of 43 protect a person from personal bias or a real likelihood of bias. Rule 46 was made with a view to achieve the said purpose. It is not in dispute having regard to the phraseology used in Rule 45B of the Rules that an accused at the first instance is bound to the tried by his Commandant.” (Underlying supplied) The Supreme Court further reiterated the classification of bias under three heads being, legal interest which means that the Judge is in such a position that a bias must be assumed; pecuniary interest; and personal bias. The court placed reliance on legal expansion of these expressions in texts and judicial pronouncements which throw valuable light on the issue and may be usefully extracted as follows: “30. Law in this regard has expanded to a great extent. In J.F. Garner's Administrative Law, it is stated: "the natural justice 'bias' rule looks to external appearances rather than to proof of actual improper exercise of power. If the reasonable observer would have the requisite degree of suspicion of bias in the decision-maker then that decision can be challenged. It is a matter of the courts ensuring that 'justice is seen to be done'. Since successful challenge is based on appearances, it is natural that the types of matter to which the rule applies is somewhat confined. As we shall see it clearly applies to judicial and disciplinary functions but not generally more widely to administrative decision making and actions." 31. In Metropolitan Properties Co. (FGC) Ltd. v. Lannon reported in 1968 (3) All ER 304, Lord Denning MR observed: "In considering whether there was a real likelihood of bias; the court does W.P.(C) No. 236/2000 Page 12 of 43 not look at the mind of the justice himself or at the mind of the Chairman of the Tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does it, his decision cannot stand; see R. v. Huggins (8), Sunderland Justices (9), per Vaughan Williams, L.J. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough; see R. v. Camborne Justices, ex parte Pearce (10); R. v. Nailsworth Justices, ex parte Bird (11). There must be circumstances from which a reasonable man would think it likely or probable that the justice, or Chairman, as the case may be, would, or did, favour one side unfairly at the expenses of the other. The court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence and confidence is destroyed when right minded people go away thinking; 'The Judge was biased'." 29. In the Oxford English Dictionary, Second Edition, “Bias” is defined at page 166 as follows :- “2. a. To give a bias or one-sided tendency or direction to; to incline to one side; to influence, affect (often unduly or unfairly).” “Biased” has been defined in this dictionary as: W.P.(C) No. 236/2000 Page 13 of 43 “2. a. influenced; inclined in some direction; unduly or unfairly influenced; prejudiced.” 30. In the instant case, an issue relating to personal bias of the officer who recorded the abstract of evidence has been complained of. In (1993) II LLJ 549 SC Ratan Lal Sharma Vs. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School, the court considered a large number of decisions and observed that the requirement of the natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. It further noticed that the doctrine of natural justice cannot be put within the strait-jacket of a rigid formula. The court further noticed that De Smith in his Judicial Review of Administration Action at page 262 observed that “a real likelihood of bias means at least a substantial possibility of bias”. These principles would apply to the present consideration. 31. The Supreme Court considered the issue of real likelihood of bias in the judgment reported at MANU/SC/0059/1973 : (1973) II LLJ 473 SC S. Parthasarthi Vs. State of Andhra Pradesh and held as follows:- "16. The tests of 'real likelihood' and 'reasonable suspicion' are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The court must look at W.P.(C) No. 236/2000 Page 14 of 43 the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If right- minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the inquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision [see per Lord Denning, H.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1968) 3 WLR 694. We should not, however, be understood to deny that the court might with greater propriety apply the 'reasonable suspicion' test in criminal or in proceedings analogous to criminal proceedings." (Underlining supplied) 32. The grounds for disqualification of Shri P.V. Eappen from appointment/detailment as an officer to prepare an abstract of evidence have to be determined from the circumstances in the present case, the prior events and the attitudinal bias towards the accused which ultimately led to a reasonable apprehension of bias. 33. Further, bias relates to factors that can be said to predispose an officer's approach in the preparation of the abstract of evidence. Shri P.V. Eappen's comments and observations appended to the complaint dated 27th December, 1998 is a factor relevant and material so as to manifest his predisposition and approach in the manner in which he prepared W.P.(C) No. 236/2000 Page 15 of 43 the abstract of evidence. 34. The respondents, however, contend that Shri Eappen was only preparing the abstract of evidence and was not the adjudicating authority. 35. In this behalf, reference can usefully be made to the observations by De Smith in his renowned text Administrative and Constitutional Law which was relied upon by the court in Union of India Vs. B.N. Jha (supra) as well and reads as follows:- "If the main functions of a tribunal are to determine disputed questions of law and fact,