Criminal Writ Petition No. 280 of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Writ Petition No. 280 of 2005 Date of decision: 04.11.2011 Inderjit Singh ...Petitioner Versus The Union of India and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Harsh Aggarwal, Advocate for the petitioner. Mr. Anil Rathee, Advocate for Union of India. ***** RANJIT SINGH J. The petitioner, who working as Generator Operator with 123 BN BSF, Camp Bhikhiwind, Amritsar has served for 9 years and 8 months when he was tried for a charge under Section 16 (d) of Border Security Force Act, 1968 (hereinafter referred to as an 'Act'). The story as projected by the petitioner, which led to this charge against him is that on 18.08.2004, the petitioner allegedly developed a severe tooth ache and fever. The petitioner statedly informed his platoon Head Constable Shri Niwas Sharma and left for treatment. As per the petitioner, tooth ache and fever was so severe that he could not wait for long and left the post BOP Sheela for treatment at 2.30 P.M. As per the petitioner, he went to Dr. Arvind Mahajan, Batala Road, Amritsar for treatment. The petitioner has also produced a certificate issued by Doctor (Annexure P-1). Thereafter, the petitioner rejoined his duty on the next day on 19.08.2004 at 9.45 A.M. The petitioner, thus, remained absent for 19 hours and 15 minutes. The petitioner would further plead that he had informed one Criminal Writ Petition No. 280 of 2005 -2- Mukhtiar Singh resident of CB Chand Dera telephonically to intimate at BOP Sheela about his admission at hospital. The petitioner also states that he had conveyed the message to Head Constable Prem Bhai in the evening of 18.08.2004. The absence on the part of the petitioner attracted inquiry. The statement of witnesses were recorded. As per the petitioner, nothing serious came out against him yet he was ordered to be tried by Summary Security Force Court (for short 'SSFC'). The petitioner was warned for trial and was served a charge sheet dated 30.08.2004 containing the allegation under Section 16 (b) of the Act of a charge for leaving his piquet without orders from his superior officer. Copy of the charge sheet is annexed with the petition as Annexure P-6. The petitioner was produced before the SSFC, which is held by the Commandant. The Court found the petitioner guilty of the charge on plea of guilty offered by the petitioner when asked to plead to the charge. After following the proper procedure, the Court imposed the sentence of dismissal from service on 02.09.2004. The petitioner remained unsuccessful in his appeal before the competent authority including the Director General, BSF. The petitioner, thereafter, had made several representations and ultimately had approached this Court with the grievance that the proceedings were held in violation of various provisions and severe and harsh punishment has been imposed on the petitioner for absence of 19 hours and 15 minutes. On 04.07.2006, the writ petition was ordered to be admitted and was directed to be heard within one year. Before admission, the petitioner filed amended writ petition to impugn the order passed by the appellate authority. Respondent-UOI has filed reply to the amended Criminal Writ Petition No. 280 of 2005 -3- petition. By way of preliminary objection, it is stated that the petitioner has concealed the material facts and has not disclosed that he was performing the duties of Generator Operator at the sensitive border of Punjab. He was responsible to illuminate the area during night of the Border Security Force at International Border. The absence of Generator Operator without authority had resulted in serious operational lapse. If the area was not lit, this could have led to entry of smugglers and anti-National elements by exploiting the darkness and, thus, facilitating anti-national activities. The petitioner was responsible for switching on the flood lights and for starting generator in case of power cut for illumination of border and the border fence. For this purpose, he alone was authorities/trained/technical person at the Border Operating Post (BOP). Still the petitioner had chosen to absent himself without getting any prior sanction from any competent authority. He remained away from his operational duty for a period of nearly a day and, accordingly, it is pleaded that no case for interference or leniency is made out in this case. Reference is also made to previous record of the petitioner, which has not been clean. He has also earlier been tried summarily and by SSFC during his service. The details of punishment earlier awarded to the petitioner are as under:- i. Petitioner absented himself without leave for 3 days while deployed at BOP Sheela on 06.07.02 from 1500 hrs till 1905 hrs on 09.07.02. Total period of absence 03 days. Petitioner was tried Summarily under the provisions of Section 19 (a) of the BSF Act, 1968 and was awarded 28 days Rigorous Imprisonment in force custody. Criminal Writ Petition No. 280 of 2005 -4- ii. That petitioner, on the intervening night of 20/21 July 2002 at about 2110 hrs while serving a term of imprisonment in the unit prisoners cell escaped and reported back on 21.07.02 (AN). Tried by Summary Security Force Court and sentenced to suffer 40 days RI in force custody. Accordingly, it is pleaded that no case for interference is made out. During the course of arguments, counsel for the petitioner did make an attempt to make submission on merits. As per the counsel, the Record of Evidence (ROE) was prepared for an offence under Section 19 (a) of the Act whereas ultimately the petitioner was put to trial for an offence under Section 16 (d) of the Act. The argument appears to be that the petitioner has pleaded guilty to the charge being under misconception that milder charge under Section 19 (a) of the Act actually is alleged against him. Section 19 (a) of the Act certainly is less grave in nature compared to a charge under Section 16 (d) of the Act but the petitioner was charged for an offence under Section 16 (d) to which he pleaded guilty. The facts in this case clearly reveal an offence under Section 16 (d) and so he was rightly charged under the said section. In my view, the submission as made is entirely misconceived. At the investigation stage, a charge against the petitioner for an offence under Section 19(a) was prepared, which according to the Commandant was revealed from the absence of the petitioner. After recording ROE, the Commandant is required to apply his mind afresh and on the basis of evidence collected in the ROE, the Criminal Writ Petition No. 280 of 2005 -5- Commandant is required to frame a charge under the proper section from the facts and evidence collected. It is not disputed before me in any manner that the facts in this case did reveal an offence under Section 16 (d) of the Act. Plea is that earlier charge is framed under the different section. The submission on these lines will, otherwise, also not mean much as the petitioner when asked to plead a charge under Section 16 (d) of the Act had pleaded guilty whereafter the Commandant had followed the proper procedure and had found the petitioner guilty of the charge. As per the statutory requirement, the petitioner was given an opportunity to make statement in mitigation of the punishment as well as in relation to the charge and thereafter he was found guilty which is as per the procedure given in Rule 142 and 143 of BSF Rules. The scope of interference in the decision of a Tribunal like Security Force Court is well defined and settled. The writ Court generally cannot interfere in the decision, but can interfere only in the decision making process. No submission is made before me in regard to decision making process followed by SSFC or while imposing this punishment. Simply because the counsel feels that punishment is harsh or disproportionate, the Court can hold so and interfere in the punishment. There is hardly any scope of interference in the punishment imposed by Forums like Summary Security Force Court. The counsel for the petitioner submits that the punishment as imposed is harsh and disproportionate to the nature and gravity of the offence charged and proved. This plea is raised simply on the ground that the petitioner has been dismissed for absence of few hours and any lesser punishment under the Act would have been sufficed. It Criminal Writ Petition No. 280 of 2005 -6- is not urged that any relevant factor, which was required to be kept in view while imposing punishment was ignored and not so considered or that while awarding this punishment any invalid considerations had been so considered making the punishment look harsh or arbitrary in any manner. The nature or gravity of the offence alleged against the petitioner apparently is rather serious. It is not a normal absence of which the petitioner is accused of. The petitioner was detailed for a duty on Border Operating Post (BOP). This was an operational duty. The requirement of the presence of the petitioner at the border post being Generator Operator was essential for operational requirement and this is well and duly reflected in the reply filed by the respondents. This is not a case of simple absence as is being made out by the petitioner. Merely because of tooth ache, the petitioner thought it appropriate to leave the border post and go for treatment without getting any permission. The petitioner not only decided to leave the BOP, which was at Bhikhiwind, a fairly good town, but went all the way to Amritsar where his family was staying. The sickness of the petitioner was not that serious as he returned back next day. The petitioner was serving in a disciplined force which was deployed in the Boarder for operational duty. He had rendered sufficient service to understand that he could not leave the post without permission. This conduct of the petitioner cannot be justified under any circumstances whatsoever. Even if the petitioner was to go for treatment to Amritsar, he was required to seek permission so that alternative arrangement to lit the border post could be made. The petitioner cannot give any justification to leave the post even if he was sick. The provision for medical treatment of person Criminal Writ Petition No. 280 of 2005 -7- serving in the Border Security Force is available under the arrangement of the unit itself. Even if it was not so, Bhikhiwind is not a small place and the petitioner could have got treatment in the Town of Bhikhiwind. Leaving the post and going all the way to Amritsar would also indicate that the petitioner was not having any serious trouble, which needed treatment. If the petitioner could travel all the way to Amritsar for treatment, how can he claim that he was so sick that he needed to leave the post without taking any permission. The submission that the petitioner had taken permission from Head Constable Shri Niwas Sharma would mean nothing as the said Head Constable was not competent person to either grant leave or to grant such a permission to the petitioner to leave the post. The conduct of the petitioner cannot be held justified in any circumstances whatsoever. In the light of these circumstances, it cannot be urged or said that the punishment imposed on the petitioner is unduly harsh or disproportionate or vindictive in any manner. It can be observed that this Court cannot sit over as appeal court over the discretion exercised by the SSFC to impose this punishment. Requirements of discipline and the standard of responsibility is well known to the officer commanding the force who are empowered to exercise such judicial/quasi judicial functions. A person, who abandons his operational duty while performing active combat duty and had absented himself would deserve severe treatment and cannot be lightly dealt with. No submissions are made to urge that the punishment is not commensurate with the nature and gravity of the offences proved or that it is harsh. Submission appears to be that the petitioner could have been retained in service by imposing lesser Criminal Writ Petition No. 280 of 2005 -8- punishment. It is not within the purview of this Court to interfere in the quantum and choice of the punishment imposed by Force Courts. The question of the choice and quantum of punishment is within the jurisdiction and discretion of Force Courts. Writ Courts may be able to interfere only where the sentence is vindictive or unduly harsh or if it is found disproportionate to offence charged and proved as to shock the conscience of the court and amount in itself to conclusive evidence of bias. No such considerations are seen in this case. The sentence cannot be termed harsh and disproportionate having regard to the previous conduct of the petitioner. There is no irrationality or perversity in the punishment to call for any interference. Nothing is pointed out before me if the petitioner had raised any objection to the charge or had stated anything in mitigation of punishment. There is no cause made out for any interference. The writ petition is, accordingly, dismissed. November 04, 2011 ( RANJIT SINGH ) rts JUDGE