Full Text
HIGH COURT OF DELHI
Date of Decision: 21.08.2024
EX-HC D.K.DWIVEDI .....Petitioner
Through: Mr. Ankur Chhibber and Mr. Anshuman, Adv.
Through Ms. Barkha Babbar, Adv.
HON'BLE MS. JUSTICE SHALINDER KAUR
JUDGMENT
1. The petitioner, who was serving in the Border Security Force [BSF] since 1982, has approached this Court under Article 226 of the Constitution of India, seeking the following reliefs:- “(i) issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing the SSFC trial proceeding held on 11.08.2005 and also the letter of the respondent dated 31.05.2006 vide which the statutory petition of the petitioner has been rejected.
(ii) issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondents to reinstate the petitioner in service from the date he was dismissed, along with full back wages and all consequential relief.
(iii) in case your Lordships are not inclined to allow the prayers
(i) and (ii) hereinabove, the respondents may be directed by way of a writ in the nature of mandamus or any other appropriate writ, order or directions, commanding the respondents to pay the petitioner his pension including arrears thereof.
(iv) pass any other order or orders as may be deemed fit in the facts and circumstances of the case.
(v) award costs of the instant writ petition in favour of the petitioner and against the respondents.”
2. We may recite the facts by noting that the petitioner joined the BSF as a Constable in the year 1982 and was promoted to the rank of Lance Naik, Naik / Head Constable in due course of time. In the year 2005, the petitioner was posted in 193 Battalion, BSF at Kalyani and was deployed at Border Out Post, Mustafapur. On 05.06.2005, while being on duty at Gate no. 32 at about 0530 hours, an incident of smuggling of vegetable oil took place, wherein the petitioner has been alleged to have participated in facilitating the said smuggling from Bangladesh to India. In these circumstances, the Officiating Commandant ordered for a Recording of Evidence (ROE) on 09.06.2005, to be prepared by the Assistant Commandant (T). The said officer commenced the ROE of the witnesses on 19.06.2005, which concluded on 30.06.2005. The additional ROE commenced on 28.07.2005 and concluded on 30.07.2005, after which it was submitted to the Commandant on 01.08.2008. Thereupon, the Officiating Commandant vide order no. Estt/2021/SSFC/193/05 dated 10.08.2005 ordered for trial of the petitioner by the Summary Security Force Court [SSFC] on 11.08.2005. The SSFC held its proceedings on 11.08.2005 and dismissed the petitioner from service on the basis of his purported plea of guilty to the Charge against him.
3. Dissatisfied with the aforesaid order of dismissal, the petitioner submitted a statutory petition to the Director General (DG), BSF on 16.11.2005, however, the same was rejected vide order dated 31.05.2006 and the order of the SSFC was upheld. Aggrieved by the dismissal of his appeal, the present petition came to be filed before this Court.
4. The primary grievance of the petitioner as articulated by Mr. Ankur Chhibber, learned counsel for the petitioner is that the petitioner has been dismissed from service by the SSFC on the basis of his purported plea of guilty of the Charge leveled against him, which plea admittedly does not bear his signatures.
5. Learned counsel contends that the SSFC did not comply with the provision of Rule 142 of the BSF Rules as the contents of the Charge were never explained to the petitioner. However, the language of the Rule has been copied and typed, in a mechanical manner, beneath the alleged plea of guilty of the petitioner. In support of his submission, that this plea of guilty is not valid and he has been wrongly dismissed from service by the SSFC, he places reliance on the decision of this Court in Jai Pal vs. UOI & Ors. [W.P.(C) 665/2012] D.O.D. 14.08.2024 and of the Apex Court in Union of India vs Jogeshwar Swain [(2023) 9 SCC 720].
6. Learned counsel further submits that the SSFC arbitrarily amended the Charge, which is in violation of Rules 45 and 51 of the BSF Rules. As initially at the time of ROE proceedings, a Charge was framed against the petitioner on 09.06.2005 that he permitted a smuggler, namely Matlab Mandal, to cross over eight containers of vegetable oil and demanded Rs. 20/- per container, however, as no evidence could be collected against the petitioner to substantiate the said charge, it was arbitrarily amended on 06.08.2005 to the effect that the petitioner failed to seize and prevent smuggling of palm oil.
7. The learned counsel vehemently submits that the Commandant ignored petitioner’s plea of innocence and that he was wrongly implicated by him in a false case. Moreso, even though he had claimed trial, the Commandant suo moto recorded a plea of guilty and sentenced the petitioner to dismissal from service. Further, the SSFC proceedings were hastily concluded with an intention to damage the petitioner’s career.
8. Learned counsel finally submits that keeping in view the overall facts and circumstances of the case, the dismissal of the petitioner is vitiated by various infractions of the procedure laid down in the BSF Rules. Moreover, the conviction of the petitioner was not based on any material evidence and is, thus, liable to be set aside.
9. Per contra, Ms. Barkha Babbar, learned counsel, who appears on behalf of the respondents, seeks dismissal of the writ petition by urging that at the time when the SSFC was conducted, neither the BSF Rules nor any Office Circular provided for obtaining signatures of an accused on the plea of guilty, therefore, there was no violation of procedure as claimed by the petitioner. Moreover, the guidelines for obtaining the signatures with respect to the plea of guilty of an accused have been issued subsequently and are being duly implemented.
10. Further, she claims that the procedure prescribed under the BSF Rules was diligently followed by the SSFC and the principles of natural justice were also duly observed by the Commandant. The petitioner had also crossexamined the witnesses at the time of ROE and he was given an opportunity to make statement in his defence but he refused to avail that opportunity.
11. The learned counsel submits that the petitioner was a habitual offender having earlier been tried on five occasions for different offences for which he was reprimanded. Therefore, the SSFC, after taking into account the overall facts, circumstances of the case as well as the acceptance of plea of guilty by the petitioner, has rightly passed the order of dismissal against the petitioner. By placing reliance on an earlier decision of this Court in Chokha Ram vs. Union of India & Anr. [110 (2004) DLT 268] as also the decision dated 16.08.2012 in Ex. Constable Kalu Ram vs. Union of India [W.P.(C) 4997/1998], she submits that the plea of guilty is not required to be signed by the accused.
12. Submissions by the parties have been heard and record has been perused including the decisions relied upon by them. The issue that is required to be adjudicated by this Court is whether the petitioner’s plea of guilty is vitiated for the reason that it does not bear his signatures, especially when he disputes to have given any acknowledgement to the said plea of guilty.
13. In this regard, we may begin by noting that Rule 142 of BSF Rules, which lays down the procedure that is to be followed by the SSFC while recording the plea of guilty. Rule 142 as it stood before 25.11.2011 is reproduced as under:-
14. Having noted the provision of Rule 142, we may now refer to a decision in Union of India and Others vs. Jogeshwar Swain (supra), wherein the Apex Court while dealing with facts akin to that of the present case emphasized upon strict adherence with Rule 142(2) before accepting the ‘plea of guilty’. The relevant observations of the Apex Court read as under:-
15. At this stage, we may also note that the specific requirement of having the signatures of the accused while recording the plea of guilty was introduced with effect from 25.11.2011 by way of a proviso to Sub-Rule 2 of Rule 142 which is as under:- “Provided that after recording plea of guilty, signature of the accused and friend of the accused shall be obtained.”
16. We are however of the view that even though, at the time when the plea of guilty of the petitioner was recorded by the SSFC, the Rule did not specifically provide for obtaining the signatures of the accused with a purpose to seek his acknowledgment to the making of plea of guilty, it was still incumbent on the respondents to obtain the signatures of the petitioner while recording his plea of guilty. Even without the proviso, as noted hereinabove, was introduced on 25.11.2011, the respondents were required to follow Rule 142 in its true letter and spirit by ensuring that the charged officer fully understood the effect of his plea of guilty.
17. In the present case, the original record of the SSFC proceedings has also been produced before us, from which it emerges that the petitioner in the ROE had claimed that he was not guilty of any Charge and had cross examined the five witnesses, who were present during the said proceedings. The SSFC proceedings, however, indicate that, though the Charge Sheet was read over and explained to the petitioner, the plea of guilty was recorded without explaining it to him the meaning of the Charge and without making him aware of the general effects of plea of guilty and the difference in procedure that will be followed upon making such a plea. Moreso, the SSFC proceedings do not indicate as to what advice was rendered to the petitioner with regard to the general effects of the plea of guilty, purportedly made by him. No doubt, underneath the plea of guilty, the Commandant has reproduced the procedure under Rule 142(2) of BSF Rules, however, apparently, the tenor of what is recorded is almost verbatim to the Rule 142.
18. Thus, we are of the considered view that the plea of guilty has not been fairly recorded by the SSFC and we cannot be oblivious of the serious consequences which have followed in the present case, the SSFC should have kept in mind that in case the petitioner is pleading guilty, he should be fully conscious of the ramifications of the plea of guilty specifically when he has challenged having made such a plea before the SSFC. It was incumbent upon the respondents to satisfy the conscious of this Court that the plea of guilty was recorded after due compliance of the BSF Rules. As we have noted above, non-compliance of the Rules coupled with the absence of the signatures of the petitioner on his purported plea of guilty further cast a doubt on the credibility of the SSFC proceedings.
19. We also find that the petitioner is justified in urging that the issue raised in the present petition is squarely covered by the decision of the Apex Court in Jogeshwar Swain (supra) as well as the recent decision of this Court in Jai Pal (supra) both based on similar facts, wherein, it was concluded that the proceedings of the SSFC were liable to be set aside on the ground of failure to strictly adhere to the procedure under Rule 142 of the BSF Rules in letter and spirit. Accordingly, we set aside the findings and sentence awarded by the SSFC vide order dated 11.08.2005 as also the order by the Appellate Authority dated 31.05.2006 rejecting the petitioner’s statutory petition.
20. Upon setting aside the impugned orders, generally, the relief of reinstatement would have followed, however, keeping in view of the fact that the petitioner, who has served for almost 23 years in the BSF, has remained out of service for almost 19 years since his dismissal, it is not a fit case for directing his reinstatement in service. Taking into account that the petitioner has already reached the age of superannuation and has not rendered any service for the last 19 years, it will not be appropriate to grant him full back wages. We find that in both Jai Pal (supra) as also in Jogeshwar Swain (supra), the petitioners therein were directed to be granted only 50% of the back wages as against their claim for 100% back wages. We are, therefore, of the view that in the facts of the present case, interest of justice will be met by granting him 50% back wages to the petitioner from the date of his dismissal from service i.e. 11.08.2005 till the date he would have attained superannuation, whereafter he should be paid pension as per Rules.
21. Before we conclude, we may also refer to the decisions in Chokha Ram (supra) and Ex. Constable Kalu Ram (supra) relied upon by the respondents. We find that as held by this Court in Devender Kumar vs. Union of India & Ors. [W.P.(C) 1532/1999], these decisions turn on their own peculiar facts and they do not lay down any absolute proposition that the plea of guilty before the SSFC under Rule 142 of the BSF Rules need not be signed before it can be relied upon. In any event, we find that the present case is squarely covered by the recent decision of the Apex Court in Jogeshwar Swain (supra).
22. For the aforesaid reasons, we allow the writ petition by setting aside the findings and sentence of then SSFC dated 11.08.2005 held against the petitioner. We further direct that the respondents to pay 50% back wages to the petitioner from the date of his dismissal from service till the date he would have attained superannuation, whereafter he will be paid full pension along with other terminal dues, as per Rules. This exercise be carried out within a period of eight weeks.
(SHALINDER KAUR) JUDGE (REKHA PALLI)
JUDGE AUGUST 21, 2024/SU/KM