CT. Jagdish Chander v. UOI & Ors.

1. The petitioner was charge-sheeted as under:- 1st Charge LEAVING HIS PICOUETS BSF Act 1968 WITHOUT ORDERS FROM HIS U/S 16(d) SUPERIOR OFFICER in that he, on 13.08.2006 at about 2045 hrs while on naka duty at Naka Point No.03 of BOP Dhinda Forward left the.said picqouets without orders from his superior officer. 2"d Charge · NEGLECTING TO OBEY A BSF Act 1968 GENERAL ORDER U/S 22(e) In that he, on 13.08.2006 at about 2045 hrs at BOP Dhinda Forward was found consumed liquor which is contravention of Battalion 0/No.Estt/109/Dis/2004/251-60 dtd.07.01.2004 which forbids consumption of liquor by personnel on days other than authorized issue days. 3rd Charge ABSENTING HIMSELF WITHOUT BSF Act 1968 LEAVE u/s. 19(a) In that he, at Bn HQ Madhopur, on 18.09.2006 at about 0800 hrs 2011:DHC:14698-DB v

2. The petitioner was informed that the Summary Security Force Proceedings would commence against him at 11:20 Hrs on 29.03.2007. He was asked whether he desired an officer to be named as the friend of the accused. He nominated Dy.Commandant A.K.Tiwari to act as the friend of the accused.

3. The court convened on 29.03.2007. The petitioner pleaded not guilty. Witnesses were examined, all of whom were declined to be examined.

4. · Penalty levied by the Commandant, holding petitioner guilty of all three charges, was vide order dated 29.03.2007. It was dismissal from service.

5. The Disciplinary Authority noted that there were previous 5 penalties levied upon the petitioner as under:- "OJ 28th October, 1997: 56 Bn BSF:28 days Rl (u/s 40 of BSF Act, for vehicle accident). (ii) 09th january, 2000: 56 Bn BSF: 14 days Rl (u/s 19(a) of BSF Act, for absence without leave). (iii) 01st November, 2002: 09 Bn BSF: 28 days Rl ·· · (u/s 22(e) of BSF Act). (iv) 27th january, 2006: 109 Bn BSF: SSFC Trial: Forfeiture of 1 year of service for purpose of promotion and 89 days Rl in Force custody (u/s 19(a) and 40 of BSF Act). (v) 13th February, 2007: 09 Bn BSF: 28 days Rl (u/s 22(e) of BSF Act)."

6. Considering the record of evidence, vide order dated 18.04.2007, the Revisfonal Authority held that charge No.2 was not proved. Taking in account the past conduct of the petitioner, penalty of dismissal from service was set aside and instead penalty imposed was 89 days_ Rl in Force custody and ~orfeiture of two years service for purposes of pension. This penalty was imposed on 18.04.2007.

7. Needless to state the petitioner was supposed t.o report r challenged the order dated 18.04.2007 before the Director General, BSF which challenge has failed. It be noted that whatever would have been the fate of the appeal, petitioner was duty bound to join back.

8. lnspite of being repeatedly informed that in view of the modified penalty inflicted upon him, the petitioner should report to the Unit, he did not do so and when he finally did on 04.04.2008, the Commandant passed an order with respect to the period from the date of dismissal i.e. 30.03.2007 till 04.04.2008. Effect of the order is to shift the date of increment to 02.01.2009.

9. The ·only justification pleaded by the petitioner to set aside the penalty imposed upon him to undergo Rl·for 89 days and forfeiture of two years of service is that the mental condition of the petitioner was so bad that he could not defend himself at the proceedings.

10. We reject the plea for the simple reason the petitioner had the benefit of a friend of the accused. Further no such plea was ever taken at the relevant time. Only after when the penalty was levied, did the petitioner procured.some prescriptions showing that he was prescribed anti depressant drugs.

11. Suffice would it be to state that anti depressant drugs may be given to a person who is slightly depressed. Before entitled to the benefit of the defence of not knowing what was going on at the relevant point of time, the level of depression has to reach the level of insanity as contemplated by law.. 12..· We find that the penalty imposed upon the petitioner is quite relevant keeping in view the past conduct of the petitioner. Thus challenge to the penalty levied is repelled. As surprised at the arguments advanced that for the same wrong second penalty has been levied.

13. We have tried to reason it out with the learned counsel for the petitioner but he chases not to understand. Noting that after DIG,CRPF set aside the finding of the court pertaining to the second charge and did not approve the penalty of dismissal from service and substituted the same by requiring petitioner to undergo Rl for 89 days in Force custody and forfeiture of two years service for purpose of pension, petitioner was informed on 19.04.2007 that he should immediately rejoin, he did not do so, reminders were sent to him, it has been ordered vide order dated 05.04.2008 as to the manner in which the period for which the petitioner did not join back be treated. It is apparent that the period of unauthorized absence was required to be accounted for in the service book and this is what has been done by the order dated 05.04.2008. The effect of the order is to shift the date of increment to 02.01.2009 for the reason the period of unauthorized absenc~ has been treated as leave without pay.

14. It is settled law that no person can earn an increment on a date on which a person is on leave. If a person is unauthorizedly absent and during the period of absence entitlement to earn increments enures, the same gets postponed. We find no merit in the writ petition which is dismissed in limine.

15. No costs. PRAD~;jjRAJOG,j