2008 (12) TMI 736 - SC - Indian Laws

Whether order of the Summary Security Force Court dated 8.9.2002 whereby and whereunder a sentence of dismissal from service was imposed incorrect?

Issues Involved:
1. Opportunity to engage counsel.
2. Disproportionate punishment.
3. Alleged discrimination in proceedings.
4. Misconduct definition under Section 22 of the Border Security Force Act, 1968.

Detailed Analysis:

1. Opportunity to Engage Counsel:
The appellant contended that he was not given an opportunity to engage the services of a counsel during the Summary Security Force Court proceedings. However, the court noted that this contention was not raised during the trial or before the High Court. Rule 157 of the Border Security Force Rules, 1969 was cited, which allows an accused to have a friend assist during the trial. In this case, Shri Ashim Biswas, Assistant Commandant, was detailed as a friend of the accused. The court concluded that the appellant did not raise any contention that he intended to consult a lawyer or select a friend of his choice during the Summary Security Force Court proceedings, and thus, the High Court rightly opined that such a contention cannot be permitted to be raised at this stage.

2. Disproportionate Punishment:
The appellant argued that the punishment of dismissal from service was disproportionate to the gravity of the offence. The court emphasized that the appellant pleaded guilty to both charges unconditionally. The appellant's explanation that he was suffering from stomachache was not supported by any medical records. The doctrine of proportionality was discussed, noting that judicial review generally addresses the decision-making process rather than the decision itself. The court referenced previous judgments, including Ranjit Thakur vs. Union of India & Ors., to illustrate that the punishment should not be so disproportionate to the offence as to shock the conscience. However, in this case, the court found that the punishment was not disproportionate given the appellant's previous misconduct and the nature of his duties in a disciplinary force like the BSF.

3. Alleged Discrimination in Proceedings:
The appellant raised the issue of discrimination, claiming that another constable, 'Kalipada Mandal,' who also absented from duties, faced no action. The court noted that this contention was not raised before the High Court. The principle established in State of Maharashtra v. Ramdas Shrinivas Nayak was cited, stating that statements of fact recorded in the judgment are conclusive and cannot be contradicted by statements at the Bar or by affidavit. The court concluded that the issue of discrimination was not pressed before the High Court, and thus, it could not be considered at this stage.

4. Misconduct Definition under Section 22 of the Border Security Force Act, 1968:
The appellant argued that the misconduct committed while in prison did not fall within the purview of 'misconduct' under Section 22 of the Act. The court examined Section 22, which outlines various forms of insubordination and obstruction. It was noted that the appellant, even while in custody, was still a member of the force and subject to the Act. The court referenced the case of Union of India vs. Narain Singh to emphasize that members of uniformed forces cannot absent themselves on frivolous pleas and that desertion is a serious matter. The court concluded that the appellant's refusal to take food and participate in pack drilling constituted neglect to obey orders under Section 22(e) of the Act.

Conclusion:
The Supreme Court upheld the judgment of the High Court, dismissing the appeal. The court found no merit in the appellant's contentions regarding the opportunity to engage counsel, disproportionate punishment, alleged discrimination, and the definition of misconduct under Section 22 of the Act. The dismissal from service was deemed appropriate given the appellant's conduct and the disciplinary requirements of the Border Security Force. The appeal was dismissed with no order as to costs.

← Previous Next →