S.B.CIVIL WRIT PETITION NO.4054/1994-Birdh Singh vs. UOI & ors. Order dt: 16/1/09 1/14 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Birdh Singh vs. Union of India & Others. S.B.CIVIL WRIT PETITION NO.4054/1994 DATE OF ORDER : 16th January, 2009 P R E S E N T HON'BLE DR.JUSTICE VINEET KOTHARI Mr.D.K.Parihar, for the petitioner. Mr.Vivek Shrimali for Mr.Ravi Bhansali, for the respondents. BY THE COURT: 1. The petitioner Birdh Singh was appointed as Constable on 2/12/1963 and upon constitution of B.S.F in 1966, he joined BSF as Head Constable in 14th Battalion, BSF and was promoted as Subedar on 10/5/1989 and at the relevant point of time he was posted at 161 BN Battalion, B.S.F. at Kadumtalla District Siliguri of West Bengal. 2. The petitioner in the present writ petition has challenged the S.B.CIVIL WRIT PETITION NO.4054/1994-Birdh Singh vs. UOI & ors. Order dt: 16/1/09 2/14 order of dismissal from service passed against him on 22/12/1992 confirmed on 18/12/1993 and upheld by the appellate order passed by the Director General, BSF on 17/2/1994. The petitioner was charged under Section 46 of the BSF Act, 1968 for committing a civil offence that is to say a criminal misconduct for being found in possession of pecuniary resources disproportionate to his known source of income for which he could not satisfactorily account for, an offence specified under Section 13(1)(e) of the Prevention of Corruption Act, 1988 as he was found in possession of Rs.2,22,000/- while posted at BOP, Bamnabad between January, 1990 to January, 1991 which was disproportionate to his known source of income which he could not satisfactorily account for. Court Martial proceedings were held against the petitioner and after holding a detailed inquiry, petitioner was awarded punishment of dismissal from service on 22/12/1992 which sentence was confirmed by Inspector General, South Bengal Frontier, BSF on 24/2/1993. 3. The petitioner preferred an appeal against the said order to the Director General, BSF, New Delhi vide Ex.5 dated 17/6/1993 which also came to be dismissed on 17/2/1994 vide Ex.6 on record. S.B.CIVIL WRIT PETITION NO.4054/1994-Birdh Singh vs. UOI & ors. Order dt: 16/1/09 3/14 4. Being aggrieved by the same, the petitioner has preferred this writ petition before this court. The contentions raised by Mr. D.K.Parihar, learned counsel appearing for the petitioner are essentially three fold; (i) that sanction of prosecution was not obtained from the competent authority; (ii)that for finding disproportionate assets, income from the date of appointment of petitioner was not taken into account; (iii) that the order passed by the appellate authority is a non-speaking order. Learned counsel Mr. D.K.Parihar relied upon the following judgments in support of his contentions; (i) N.P.Jharia vs. State of M.P. - 2007 (3) Crimes 238 (SC), (ii) State of Karnataka vs. Ameer Jan – 2007 (4) Crimes 22 (SC). 5. On the side opposite, Mr.Vivek Shrimali appearing for Mr.Ravi Bhansali urged that there was no breach of principles of natural justice in holding the inquiry against the petitioner, who was found guilty of possessing resources disproportionate to his known sources of income and modus operandi for indulging into corrupt activities by the petitioner have been explained in reply to the writ petition as S.B.CIVIL WRIT PETITION NO.4054/1994-Birdh Singh vs. UOI & ors. Order dt: 16/1/09 4/14 under:- “That on 9th January, 1991, the patrol party of BOP (Border Out Post) Bamnabad under command of petitioner Subedar Birdh Singh, the petitioner, seized 11 bundles of cotton yarn approximately weighing 900 kgs worth about Rs.1,08,900/- as unclaimed property. The Frontier HQ BSF South Bengal vide order dated 18th January, 1991, ordered a court of inquiry to inquire into the allegations involving the petitioner. A Court of inquiry was conducted from 7th August, 1991 which continued till 9th November, 1991 and it was found that Shri Nikhil Chand Mondal gave Rs.20,000/- to the petitioner for the exchange of 11 bundles of superior quality cotton yarn seized, with the equal quantity of inferior quality of cotton yarn. However, the exchange of the yarn could not be done as the matter came to the notice of authorities and the seized cotton yarn was deposited with the custom authorities on 16th January, 2991. Because of this development, Shri Nikhil Chand Mondal (PW-7) approached the petitioner to refund Rs.20,000/- to him. The petitioner refunded amount of Rs.10,000/- only. The Court of inquiry also found that the petitioner had remitted huge amount through the S.B.CIVIL WRIT PETITION NO.4054/1994-Birdh Singh vs. UOI & ors. Order dt: 16/1/09 5/14 bank drafts to his home town. The petitioner was found to possess Rs.2,22,000/- which he could not account for and the remittance to his home town. A Record of Evidence (ROE) was recorded and after the completion of ROE, it was ordered th at the petitioner be tried by a General Security Force Court on a charge u/s 46 BSF Act red with 13(2) of the Prevention of Corruption Act, 1988 and the proceedings of the general Security Force Court were held at Head Quarter of 161 Battalion B.S.F. On 14th December, 1992 and on the subsequent days. The General Security Force Court has found the petitioner guilty of charge and awarded the punishment of dismissal from the service which was confirmed by the reconfirming authority on 24th of February, 1993. Aggrieved of the GSFC proceedings, the petitioner sent a petition as provided under the B.S.F. Rules on 17th June, 1993 to Director General BSF and after due application of mind was rejected and communicated vide order dated 17th February, 1994. Aggrieved of the GSFC proceedings and the rejection of his statutory petition, the petitioner has filed this writ petition under Article 226 of the Constitution of India.” 6. Having heard learned counsels, this Court finds no force in the S.B.CIVIL WRIT PETITION NO.4054/1994-Birdh Singh vs. UOI & ors. Order dt: 16/1/09 6/14 contentions raised by learned counsel for the petitioner for the following reasons. 7. In N.P.Jharia's case (supra), the Hon'ble Apex Court after observing that corruption has raised its ugly head in our country and has acquired such wide spread connotation and embraced almost all the spheres of our day to day life, the Apex Court while dismissing the appeal of the delinquent found that the delinquent official was in possession of disproportionate assets even after taking into account the various items of expenditure, the assets acquired, the sources of incomes of the petitioner and, therefore, the punishment of dismissal from service was justified and no interference was called for. The following paras are quoted for ready reference. “2.Corruption is one of the most talked about subjects today in the country since it is believed to have penetrated into every sphere of activity. It is described as wholly widespread and spectacular. 3. Corruption as such has reached dangerous heights and dangerous potentialities. The word S.B.CIVIL WRIT PETITION NO.4054/1994-Birdh Singh vs. UOI & ors. Order dt: 16/1/09 7/14 `corruption' has wide connotation and embraces almost all the spheres of our day to day life the world over. In a limited sense it connotes allowing decisions and actions of a person to be influenced not by rights or wrongs of a cause, but by the prospects of monetary gains or other selfish considerations. Avarice is a common frailty of mankind, and while Robert Walpole's observation that every man has a price, may be a little generalized, yet it cannot be gainsaid that it is not far from truth. Burke cautioned “Among a people generally corrupt, liberty cannot last long.” 8. High Court referred to the various items of expenditure, the assets acquired, the sources of incomes. It was held that the assessee had explained the income of himself and his wife from the known source for a sum of Rs.2,62,061/- while the assets found were Rs.10,79,438/-. Therefore the value of the disproportionate assets was of Rs.8,17,377/-. The High Court held that in respect of certain items of income the trial court was rather charitable but since the State has not questioned the computation, the same was to be accepted. 16. .......Both the trial court and the High Court have analysed the evidence in great details so far as the S.B.CIVIL WRIT PETITION NO.4054/1994-Birdh Singh vs. UOI & ors. Order dt: 16/1/09 8/14 valuation of the properties is concerned. There is no scope for any interference in this appeal so far as the valuation and the determination of the disproportionate assets is concerned.” 8. In Ameer Jan's case (supra), the Hon'ble Supreme Court about sanction for prosecution held in para no.7 and 8 as under:- “7.We agree that an order of sanction should not be construed in a pedantic manner. But it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not. 8. For the aforementioned purpose, indisputably, application of mind on the part of the sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. We have noticed herein before that the sanctioning authority S.B.CIVIL WRIT PETITION NO.4054/1994-Birdh Singh vs. UOI & ors. Order dt: 16/1/09 9/14 had purported to pass the order of sanction solely on the basis of the report made by the Inspector General of Police, Karnataka Lokayuktha. Even the said report has not been brought on record. Thus, whether in the said report, either in the body thereof or by annexing therewith the relevant documents, IG Police Karnataka Lokayuktha had placed on record the materials collected on investigation of the matter which would prima facie establish existence of evidence in regard to the commission of the offence by the public servant concerned is not evident. Ordinarily, before passing an order of sanction, the entire records containing the materials collected against the accused should be placed before the sanctioning authority. In the event, the order of sanction does not indicate application of mind as the materials placed before the said authority before the order of sanction was passed, the same may be produced before the court to show that such materials had in fact been produced.” 9. On the side opposite, learned counsel for the respondents relied upon the Division Bench judgment of this Court in the case of B.R.Bishnoi vs. Union of India and ors. (D.B.Civil Special Appeal S.B.CIVIL WRIT PETITION NO.4054/1994-Birdh Singh vs. UOI & ors. Order dt: 16/1/09 10/14 No.420/2004 decided on 28/5/2004), whereby, the Division Bench of this Court upheld the dismissal of writ petition by learned Single Judge in almost similar circumstances. The Division Bench in para no.4 observed that: “We may remind the observations of the Apex Court in Board of Mining Examination v. Ramjee reported in AIR 1977 SC 965 to the effect that natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of.” 10. Thereafter, rejecting the contention of petitioner that the statement of witnesses were not readout by Commandant to him and, therefore, the principles of natural justice were breached, the Court proceeded to dismiss the appeal of the petitioner. The Court held in para 5 & 6 as under:- “5. It is submitted that the Commandant did not read over to the appellant the statements of the witnesses S.B.CIVIL WRIT PETITION NO.4054/1994-Birdh Singh vs. UOI & ors. Order dt: 16/1/09 11/14 and did not give him opportunity to read the statements. The contention deserves to be rejected. The statements of fact as to what transpired at the trial recorded in the proceedings are conclusive of the facts so stated and no one can contradict such statement by affidavit or other evidence. If the appellant felt that the statement has not been read over to him or that he has not been given an opportunity to make his statement, appropriate application could have been made before the GSFC. The appellant was represented by Shri S.K.Nanda, a practicing lawyer of this Court. Even otherwise, no prejudice has been caused on this account, as it is not the case of the appellant that his statement has, in any way, been recorded wrongly. As far as the recording of his statement is concerned, it is evidence that as many as six witnesses have been examined on his behalf. It is further submitted that during trial, only six witnesses were examined and other witnesses were not produced. It is not obligatory on the prosecution to examine all the witnesses. The non- examination of witnesses has not affected the core of the prosecution case. 6. Having regard to the arguments addressed by the learned counsel for the appellant and having gone S.B.CIVIL WRIT PETITION NO.4054/1994-Birdh Singh vs. UOI & ors. Order dt: 16/1/09 12/14 through the judgment of the learned Single Judge and the entire record, we are satisfied that the punishment awarded to the appellant does not suffer from any vice and the learned Single Judge has rightly refused to interfere with the impugned order, which pertains to the integrity and discipline of the BSF. 7. In the result, we find no merit in the Special Appeal and the same is dismissed summarily.” 11. In the present case also, this Court having gone through the record of the case, inquiry proceedings and memo of appeal of the petitioner before the Director General, BSF, New Delhi, is of the opinion that there was no breach of principles of natural justice in the case of inquiry held against the petitioner and sanction of prosecution contained in the charge sheet itself as Ex.P/2 of the petition was proper sanction to initiate prosecution against the petitioner under the provisions of Section 13(1) (e) of the Prevention of Corruption Act, 1988 read with Section 46 of the BSF Act, which deals with civil offence committed by personnel of BSF. The petitioner was given full opportunity to defend himself and services of legal assistant were made available to him. The appellate authority also after considering S.B.CIVIL WRIT PETITION NO.4054/1994-Birdh Singh vs. UOI & ors. Order dt: 16/1/09 13/14 the appeal of the petitioner rejected the same. 12. It is true that appellate order does not reiterate all the reasoning given by the disciplinary authority while imposing punishment of dismissal from service upon the petitioner but while affirming the said finding it is not always necessary that appellate authority should reiterate all those reasonings. Mere passing of detailed order does not comply with the principle of natural justice and mere absence of detailed order ipso facto does not lead to breach of principles of natural justice as also observed by the Division Bench of this Court quoting the Supreme Court decision in the case of Board of Mining Examination v.Ramjee – AIR 1977 SC 965 that natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. This Court is of the opinion that mere raising the ground of breach of natural justice on the ground that appellate authority has not passed the detailed order is not sufficient to set aside such orders. In the backdrop of what Apex Court stated in N.P.Jharia's case (supra) that in view of widespread corruption in our country particularly in armed forces like BSF, if such inquiries, punishment orders or appellate orders were to be lightly set aside on the bogie of natural justice by S.B.CIVIL WRIT PETITION NO.4054/1994-Birdh Singh vs. UOI & ors. Order dt: 16/1/09 14/14 Courts of law, it would frustrate the very purpose of punishing such corrupt people who are caught and tried, few and far between. Since having gone through the record, this Court is satisfied that there was no breach of natural justice even if the order of appellate authority is not a detailed one, this Court is not inclined to interfere with the same only on this ground. Looking to the nature of the charge and the modus operandi of the petitioner of remitting huge amount of cash from his place of posting in a short span of period by having hands in gloves with the local cotton dealers, who supplied cotton to BSF, this Court is also not inclined to interfere with the quantum of punishment from dismissal from service in any manner. 13. Consequently, the writ petition is found to be devoid of merit and the same is accordingly dismissed. (DR.VINEET KOTHARI), J. item no.s-2 baweja/-