Criminal Writ Petition No. 1529 of 1999 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Writ Petition No. 1529 of 1999 (O&M) Date of decision: 07.01.2010 Naresh Kumar ...petitioner Versus Union of India and others ...respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. N.K. Kohli , Advocate for the petitioner. Mr. Gurpreet Singh, Advocate and Mr. Susheel Gautam, Advocate for Union of India. RANJIT SINGH J. The petitioner, a Constable in Indo Tibetan Border Police (hereinafter referred as 'ITBP') has filed this writ petition to impugn the order of his dismissal passed upon his trial by Summary Force Court (for short SFC). The facts in brief are that the petitioner was detailed for pre-training Course at Mussorie alongwith other Head Constable Virender Kumar, who was also deputed for the said training, though in the writ petition, Varinder Kumar is wrongly referred to as escort of the petitioner. The petitioner and said Head Constable Virender Kumar were selected for main VIP security course being run at N.S.G. Training Center Manesar (Gurgaon) from 5.1.1998 to 31.1.1998. The petitioner was issued two weapons i.e. pistol and Carbine 9 MM alongwith ammunition and other tools required for training during the course. While returning after completion of the Criminal Writ Petition No. 1529 of 1999 (O&M) 2 course on 31.1.1998, the petitioner lost 9 MM carbine at ISBT, Delhi. As per the petitioner, he had put this carbine in suit case which he kept in the bus while he had gone to put his luggage on roof of the bus. On coming down, he found his suit case missing and thus stolen. The petitioner is the only witness to this loss and has averred these facts showing the loss of the weapon in this manner. The petitioner accordingly reported the loss and also lodged FIR. Subsequent proceeding against the petitioner followed. First a court of inquiry was ordered and followed by record of evidence under the rules. After due intimation to the petitioner, he was tried by SFC on 16.01.1999 for two charges under section 35 (b) and Section 43 of the ITBP Act for losing by neglect the said weapon and for violation of good order and discipline. The petitioner pleaded guilty to both charges and upon being found guilt was sentenced to be dismissed from service on 22.01.1999. The petitioner filed a petition against the award, the right available to him under the ITBP Act, which was ultimately rejected on 07.06.1999. Thereafter, the petitioner filed the present writ petition which has since been admitted and has now come up for hearing. From the reply filed on behalf of the respondent, it can be seen that there is not much dispute in regard to the factual position. It is stated that while returning from N.S.G. Training Center, Manesar, the petitioner lost 9MM Carbine. 600 empty cases and other equipments, which he reported after 3 days. As per the reply, the Court of inquiry was ordered on 03.02.1998 to go into the circumstances under which the arms and ammunition entrusted to the petitioner was lost. It is further stated that the petitioner was duly Criminal Writ Petition No. 1529 of 1999 (O&M) 3 associated in this court of inquiry where he admitted the loss of weapon and ammunition. It is then pointed out that loss of arms and ammunition would necessarily required to be followed by disciplinary action and the same was initiated against the petitioner by directing the preparation of Record of Evidence (ROE). It is stated in the reply that the petitioner appeared before the Commanding Officer on 05.11.1998 for hearing of charge. Charge sheet was thereafter served to him on 10.11.1998 for ROE (Record of evidence). The petitioner duly participated in the recording of evidence and cross examined prosecution witnesses. The petitioner was given opportunity to make statement which he chose not to do. As per the reply, the record of evidence was thereafter put up before the disciplinary authority who ordered his trial by the SFC. It is also averred that fresh chargesheet was issued to the petitioner before his trial by SFC where he pleaded guilty to the two the charges preferred against him. Copy of the proceedings of the SFC have been annexed with the reply as Annexure R-2. It is accordingly pleaded that no case is made out for interference in the writ petition. The petitioner has filed the replication where some averment made in the reply are contested. The petitioner, however, himself has conceded that he was called as a prosecution witness in the Court of Enquiry but would still say that he was not given an opportunity as provided under Rule 174(8) of Indo Tibetan Border Police Force (hereinafter referred as 'Rules'), Rules, 1994. The petitioner pleads that as per Rule 174 (8) of the rules, he was required to be associated with the court of inquiry and was further entitled to cross examine witnesses and produce defence witnesses Criminal Writ Petition No. 1529 of 1999 (O&M) 4 besides being entitled to the copy of the proceedings of the court of inquiry in terms of Rule 177 of the rules. The petitioner would contend that it is not a case of loss of arms and ammunition but the same was stolen. The petitioner also disputes the stand of the respondents that trial by court martial is a legal requirement in such cases of loss of arms and ammunition. He would rather plead that this would show pre-conceived mind of the authorities to put the petitioner to trial by SFC. Otherwise also, the petitioner has disputed the factual position as narrated by the respondents. He would rather plead that nothing could reveal against the petitioner from the record of evidence. The petitioner has also highlighted that the procedure prescribed in the Rules 44 and 45 of the Rules was not followed and as such the whole proceedings against the petitioner are thus vitiated for lack of jurisdiction. The counsel for the petitioner has primarily raised three fold submissions to impugn his trial and the punishment awarded. It is first urged that the petitioner was not given opportunity as per his rights under Rule 174 (8) of the Rules while conducting the court of inquiry. The counsel would accordingly submit that this will vitiate the entire subsequent proceedings. In support has placed reliance on a decision of Delhi High Court in Writ Petition (C )No. 11839 of 2006 titled as Lt. Gen. Surendra Kumar Sahni versus Chief of Army Staff and others decided on 11.01.2007. The counsel would next contend that the proceedings are further vitiated and would lack in jurisdiction on account of violation of the provisions of Rules 44 and 45 of the rules. These rules relate to hearing of a charge by the Commanding Officer or other officers. Submission is that the Criminal Writ Petition No. 1529 of 1999 (O&M) 5 Commanding Officer did not hear the charge before directing the record of evidence, which is a mandatory requirement and would thus vitiate all the subsequent proceedings including the trial and the punishment awarded to the petitioner. Lastly, it is pleaded that the punishment awarded to the petitioner is highly disproportionate to the nature and gravity of the offence for which he was tried and in this regard would primarily rely on the punishment awarded to the co- accused which was set aside by this Court. An order passed by this Court in respect of co-accused Head Constable Varinder Kumar, who was let off only with the loss of 5 years' service punishment, which has also been set aside by this Court is thus referred. I have perused the record placed before me by the counsel appearing for the UOI to show that the Commanding Officer conducted the hearing of a charge under Rule 45 and also the fact that each page of the court of inquiry was signed by the petitioner. The manner in which this writ petition has been drafted, would show that it was taken to be a case of departmental enquiry but not to be a trial by SFC. None of the submission made in regard to court of inquiry, record of evidence, hearing of charge are thus found averred in the writ petition. It is only when the respondent filed a reply to the writ petition and pointed out the factual position that the petitioner was put to trial by Summary Force Court and that all the procedures like holding of court of inquiry and record of evidence were conducted that the petitioner woke up to raise the challenge in the rejoinder to plead violation of these rules. The challenge thus raised in rejoinder cannot be considered a proper manner to challenge the trial proceedings. A plea raised for the first time in Criminal Writ Petition No. 1529 of 1999 (O&M) 6 rejoinder cannot be validly considered. Though the pleas raised can be dismissed on this short ground but still these are being considered to see if the jurisdiction of the SFC would get affected on the grounds of any violation of the provisions as alleged. First submission made by the counsel for the petitioner is on the basis of Rule 174 (8). Rule reads as under:- “ Save in the case of a prisoner of war who is still absent whenever the subject matter of inquiry is the conduct or character of a particular person, such person may be associated throughout with the inquiry and be given full opportunity of making any statement, or giving any evidence, he may wish to make or give, and of cross- examination any witness whose evidence, in his opinion, affects his character or reputation.” This rule makes a provision for giving an opportunity to a person accused of an offence whose character or reputation is an issue to be associated throughout with the inquiry and to be given full opportunity of making any submission or giving any evidence, he may wish to make or give. Concededly, the petitioner was examined as a witness. There is no pleading on record to show that this court of inquiry was directed against the petitioner or character or reputation of the petitioner was an issue before the court of enquiry. This inquiry was apparently not to go into the character or reputation of the petitioner. It was basically to investigate the loss of weapon. The Court of inquiry was directed to go into the loss of weapon which was necessarily needed to be ordered in terms of position as contained in Rule 175 (2) (c). Rule 175(2) provide cases Criminal Writ Petition No. 1529 of 1999 (O&M) 7 where holding of court of inquiry is a legal necessity. Rule 175 (2)(c) reads as under:- “ All financial irregularities, losses, theft and misappropriation of public for Force property, where it is necessary to obtain the order of a superior officer on such irregularities, loss, theft or misappropriation.” Otherwise, it is noticed that the petitioner was examined as a witness before this court of inquiry. The petitioner had signed each page of the proceedings. This would indicate his presence throughout the proceedings. He had made a statement before court of Inquiry. There is no averment that he wanted to produce a defence witness which was denied. In fact there is no averment in this regard at all. The plea that rule is mandatory may not be made out. The rule, as reproduced would show that the words used in the rule is 'may'. The word 'may' is used to ensure association throughout the inquiry and giving of an opportunity of making a statement etc. or giving evidence. It would give an indication about nature of the rule and the requirements projected therein. The ratio of law laid down in Lt. Gen. Surendra Kumar Sahni case (supra) was on the basis of Rule 180 of the Army Rules, 1954 which is worded differently. In Rule 180 of the Army Rules, the word 'must' is used and that has been interpreted in Writ Petition (c ) No. 11839 of 2006, which is decided by the Delhi High Court and which has been relied upon by the counsel for the petitioner. Accordingly, the ratio of law laid down in this writ petition may not strictly apply in the present case. Otherwise also, the petitioner was concededly given an opportunity to make a Criminal Writ Petition No. 1529 of 1999 (O&M) 8 statement and there is no averment that he was denied opportunity to lead evidence in his defence or to cross examine any witnesses. Ultimately the petitioner pleaded guilty to the charges before the SFC. What could he have done or what defence evidence, he could have given before a court of inquiry where he made a judicial confession at the stage of trial. There is thus neither any violation of any rule or of a requirement which was mandatory to vitiate the proceedings. Equally untenable is the plea raised on behalf of the petitioner that provisions of Rules 44 and 45 of the rules were violated. The record was placed for perusal before this Court. The certificate given by the Commanding Officer has been perused by me. Commanding Officer has certified that he had heard the petitioner in terms of Rule 45(1) of the Rules. Rule 44 of the rules read with Rule 45 would show that a charge can either be heard by Officer of the rank of not less than Assistant Commandant or by Commanding Officer himself. Since the Commanding Officer had heard the charge against the petitioner under the provisions of Rule 45, it can be said that the preliminary hearing of the charge was held. In this factual background, there would be hardly any need to go into the legal effect of the violation of rule of preliminary hearing of the charge, if any. Since it is not established that this legal provision was violated in any manner, no benefit can accrue to the petitioner as pleaded. Last plea made is that the sentence awarded to the petitioner is highly disproportionate considering the nature and gravity offence. Loss of weapon by a soldier is rather a serious Criminal Writ Petition No. 1529 of 1999 (O&M) 9 culpable offence. The petitioner has been charged for losing the weapon by neglect which is a criminal misconduct under the ITBF Act. The fact that the weapon was lost is based on the sole version given by the petitioner himself. Need to secure a weapon and its loss being very serious is ingrained into a soldier from very beginning when one joins the service. Such loss is never lightly weighed. Reference is made to the case of Mithilesh Singh versus Union of India and others (2003) 3 Supreme Court Cases 309. Observation made by the Hon'ble Supreme Court in paras 9 and 10 of this judgment is highlighted, to urge that the removal of service was considered an adequate punishment in cases of loss of weapon. The relevant observation made by the Hon'ble Supreme Court in this regard are as under:- “ We find from the factual position, which is undisputed that the appellant was posted at Tarn Taran in Punjab, a terrorist-affected area and was, at the relevant time, working in the Railway Protection Special Force. Any act of indiscipline of such an employee cannot be lightly taken. In Ashok Kumar Singh case the employee was a police constable and it was held that an act of indiscipline by such a person needs to be dealt with sternly. As noted by the Division Bench of the High Court, penalty of removal from service is statutorily prescribed. It is for the employee concerned to show how that penalty was disproportionate to the proved charges. No mitigating circumstance has been placed by the appellant to show as to how the punishment could be characterized as Criminal Writ Petition No. 1529 of 1999 (O&M) 10 disproportionate and/or shocking. One the contrary as established in the disciplinary proceedings, the appellant left the arms and ammunition unguarded and not in any proper custody. This aggravated the aberrations. Therefore, the order of removal from service cannot be faulted. There is no reason to interfere with the orders of the Division Bench of this High Court.” Counsel would also refer to Om Kumar and others versus Union of India (2001) 2 Supreme Court Cases 386, to substantiate his plea that punishment in this case cannot by any stretch of law be said to be disproportionate to the nature and gravity of the proved misconduct. Submission is that quantum of punishment in disciplinary matter is primarily for the disciplinary authority to decide and the jurisdiction of the High Court under Article 226 of the Constitution or of the Tribunal is limited and is confined to the applicability of one or other of the well known principles known as Wednesbury principles. [See Associated Provincial picture versus Wednesbury Cafin (1948) 1KB 223 : (1947) 2 All ER 680(CA)]. In Wednesbury case Lord Greene said that when a statute give discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered or the decision was one which no reasonable person could have taken. These principles were consistently followed in UK and in our country to judge the validity of administrative action. Criminal Writ Petition No. 1529 of 1999 (O&M) 11 Lord Deplock in council of Civil Service union versus Minister for the Civil Services (1984) 3 WLR 1174 (HL) listed three grounds upon which administrative action is subject to control by judicial review. These grounds are ‘illegality’, ‘irrationality’ and ‘procedural impropriety’. He expressed his view about possible adoption of principle of proportionality which was recognized in some of the European community. As noted in Om Kumar’s case (supra) the principle of proportionality originated in Prussia in the Nineteenth century and has since been adopted in Germany, France and other European countries. Our Supreme Court has applied this principle since long. Judicial review generally speaking is not directed against a decision but against the decision making process. As held in Ranjit Thakur versus Union of India, AIR 1987 SC 2386, the question of the choice and quantum of punishment is within the jurisdiction and discretion of court martial. The sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to the conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Without delving further into this concept, let us see if it can be said that the sentence in this case would need correction on the principle of proportionality. The sentence cannot be termed Criminal Writ Petition No. 1529 of 1999 (O&M) 12 irrational. There is nothing to indicate that any relevant factor was not considered or any irrelevant factor was taken into consideration. Rather the sentence appears just and reasonable considering the nature of the offence and gravity thereof. The sentence is thus not disproportionate to the gravity of the offence to call for correction. In view of the above, there is no merit in any of the pleas made. The writ petition is without merit and is, therefore, dismissed. January 07, 2010 ( RANJIT SINGH ) rts JUDGE