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TMI Blog2003 (3) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 1700/- was said to have been stolen from the said B.K. Jha. Allegedly, he gave out that the Respondent had accepted a sum of Rs. 5,000/- for his recruitment. On 16.7.1990 one Mr. Raj Singh, Deputy Commandant reported to the Commandant, Mr. J.S. Bakshi that the said B.K. Jha had stated in presence of one Mr. G.S. Rana that he had brought out a sum of Rs. 8,500/- from his house out of which he was, as per instruction of his father, to pay a sum of Rs. 7,000 for his recruitment but he in fact paid a sum of Rs. 5,000/- to the Respondent a week prior to the date of offence. One constable of the administrative wing had allegedly came to him to collect money for the Respondent and he had paid a further sum of Rs. 1,000/-. Mr. J.S. Bakshi at about 0930 hours on 17.7.1990 informed Mr. Garcha that the Respondent came to his office and apologized for having taken the money. Mr. Garcha asked Mr. Bakshi to inquire into the matter further who thereupon submitted his report by way of a letter. 2.2. Mr. Garcha allegedly examined the said two persons as also the Respondent. An alleged confession about the commission of the offence is said to have been made before him by the Respondent herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity Force. BSF Act INDIRECTLY ACCEPTING GRATIFICATION Section 41(e) AS A REWARD FOR PROCURING ENROLMENT In that he, at Border Security Force Campus, Meru (Hazaribagh) in the second week of July 1990 accepted Rupees 6,000/- (Rupees six thousand only) from No. 90401117 Recruit Constable Bhavesh Kumar Jha under training at Subsidiary Training Centre. Border Security Force, Hazaribagh for procuring his enrolment in the Border Security Force. Sd/- [M.S. Arya] Commandant Place: Meru, Hazaribagh Date: 7 September, 1990 I have heard the officer and he pleads 'Not guilty'. Remanded for preparation of Record of evidence. Sd/- Comdt. 7.9.90 A procuring for recording of evidence against the Respondent thereupon was initiated. He raised an objection about the validity of the proceeding but the same was rejected. The Respondent thereafter was transferred to 127 Bn. in Punjab but he was retransferred to TCS Hazaribagh in August, 1991 for the purpose of facing his trial by General Security Force Court. In the trial held by the General Security Force Court, the Respondent was found guilty of the said charges and by an order dated 27.2.1992 he had been sentenced to dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs against him. The learned Counsel would contend that the learned single Judge committed a manifest error in reappreciating the evidence which was not within the domain of the High Court exercising its jurisdiction under Article 226 of the Constitution of India having regard to the settled principles of law that it does not exercise any power of superintendence over the Courts constituted under the Army Act, BSF Act and in that view of the matter it could not have reappreciated the evidence. The learned Counsel would contend that admittedly Mr. M.S. Arya was a Commandant of BTC which being a unit to which the Respondent was attached, he was entitled to direct recording of evidence in terms of the Act and the Rules. According to the learned Counsel, Mr. Garcha being a Deputy Inspector General of Police could have further asked the Commandant of a Unit to take disciplinary measures against the Respondent both in terms of Rule 46 as also Rule 16(7) of the Rules. 8. Mr. Sharma, the learned Counsel appearing on behalf of the Respondents, on the other hand, would submit that admittedly Mr. Garcha was biased against the Respondent. He was a witness in the trial and in fact he examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Force Courts: (1) Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by Security Force Courts according to the scale following, that is to say-1(c) dismissal from the service; 49. Alternative punishments awardable by Security Force Courts-subject to the provisions of this Act, a Security Force Court may, on convicting a person subject to this Act of any of the offences specified in Sections 14 to 45 (both inclusive) award either the particular punishment with which the offence is stated in the said sections to be punishable or, in lieu thereof, any one of the punishments lower in the scale set out in Section 48 regard being had to the nature and degree of the offence. 64. Kinds of Security Force Courts- For the purposes of this Act there shall be three kinds of Security Force Courts, that is to say-(a) General Security Force Courts; (b) Petty Security Force Courts; and (c) Summary Security Force Courts. 65. Power to convene a General Security Force Court- A General Security Force Court may be convened by the Central Government or the Director-General or by any officer empowered in this behalf by warrant of the Directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector-General. 16. Command- (5) Disciplinary powers over a person subject to the Act shall be exercised by the Commandant of the battalion or unit to which such a person belongs or the officer on whom command has devolved in accordance with Sub-rule (2). (7) The Director-General, the Inspector-General and the Deputy Inspector-General may specify one or more officers of the staff who shall exercise the disciplinary powers of a Commandant in respect of persons belonging to or doing detachment duty at their respective Headquarters. 44. Charge sheet- Where it is alleged that an officer or a sub-ordinate officer has committed an offence punishable under the Act, the allegation shall be reduced to writing in the form set out in Appendix VI. 45B. Hearing of charge against an officer and a subordinate officer- (1)(a) The charge against an officer or subordinate officer shall be heard by his Commandant. Provided that charge against a Commandant, a Deputy Inspector-General may be heard either by an officer commanding a Unit or Headquarters to which the accused may be posted or attached or by his Deputy Inspector-General, or his Inspector-General or, as the case may be, the Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view to achieve the said purpose. It is not in dispute having regard to the phraseology used in Rule 45B of the Rules that an accused at the first instance is bound to be tried by his Commandant. Necessarily, the question which arises for consideration would be as to who was the Commandant of the Respondent at the relevant point of time. Concededly Mr. Garcha was the Commandant of the Respondent till 17.7.90. A question which is to be posed and answered is as to whether the BTC is a Unit of TCS. The Appellant herein in their counter-affidavit before the High Court stated "that the Respondent was posted to BSF, TC&S Hazaribagh and was further posted to Basic Training Centre of the TC&S Hazaribagh on 19.7.1990 by the DIG, BSF TC&S Hazaribagh. The BSF Training Centre & School Hazaribagh is a Training Institution composing of the following wings: (a) Basic Training Centre (b) Specialised Training Centre & School (c) Administrative Wing 12. Having regard to the provisions of the Act and the Rules, as noticed hereinbefore, we are of the opinion that only because in a Unit or Battalion a Commandant is posted, existence of a Unit would not be presumed. Once it is held that Basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that BTC is not a unit totally independent of TC&S. It is further not in dispute that Mr. Arya was an officer subordinate to him. His letter dated 4th September, 1990 in no uncertain terms points out that he had for all intent and purpose directed Mr. Arya to initiate a disciplinary action against the Respondent. The said action was to be taken on the basis of the materials disclosed therein. Such a procedure is unknown in law. An authority who is higher than the Commandant, in exercise of his power conferred upon him under Rule 46 could not have directed the commandant of a wing of his own unit to initiate departmental proceedings. In law it was the disciplinary authority alone who was required to apply his independent mind to the materials on record so as to enable him to arrive at the conclusion as to whether a disciplinary action is contemplated or not. He cannot do so at the instance of a higher authority who had not only no role to play in the matter but also admittedly was biased. [See: Commissioner of Police, Bombay v. Gordhandas Bhanji, 1952 SCR 135 and Union of India and Ors. v. Harish Chandra Goswami, JT 1999(3) SC 322 : (1999)4 SCC 575]. Bias against the Respondent on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he dispute. 19. Natural justice as is well known is founded on two basic principles: (a) Audi Alteram partem. (b) Nemo judex in causa sua. The duty to act fairly is the theme of the principles of natural justice. The Rule generally applies with full force to conduct leading directly to a final act of decision. In Halsbury's Laws of England, Vol. 1(i), 4th Edition it is stated: 85.... Thus a presumption that natural justice must be observed will arise more readily where there is an express duty to decide only after conducting a hearing or inquiry or where the decision is one entailing the determination of disputed questions of law and fact. Prima facie, moreover, a duty to act in accordance with natural justice will arise in the exercise of a power to deprive a person of his livelihood or of his legal status where that status is not merely terminable at pleasure, or to deprive a person of liberty or property rights or another legitimate interest or expectation, or to impose a penalty on him; though the conferment of a wide discretionary power exercisable in the public interest may be indicative of the absence of an obligation so to act. Where a discretionary power to en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and actions. 21. In Metropolitan Properties Co. (FGC) Ltd. v. Lannon 1968(3) All ER 304, Lord Denning MR observed: In considering whether there was a real likelihood of bias; the Court does not look at the mind of the justice himself or at the mind of the Chairman of the Tribunal, or whoever it may be, who sits in a judiciary capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does it, his decision cannot stand; see R.V. Huggins (8), Sunderland Justices (9), per Vaughan Williams, L.J. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough; see R.V. Camborne Justices, ex-parte Pearce (10); R.V. Nailsworth Justices, ex-parte Bird (11). There must be circumstances from which a reasonable man would think it likely or probable that the justice, or Chairman, as the case may be, would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he justices as mentioned by Halsbury but to all tribunals and bodies which are given jurisdiction to determine judicially the rights of parties. 24. In Andhra Pradesh State Road Transport Corporation, Hyderabad v. Sri Satyanarayana Transports (P) Ltd., Guntur, AIR 1965 SC 1303, this Court held that the elementary rule of natural justice that person trying a cause, though in a quasi-judicial proceeding, should not suffer from a personal bias. This Court stated the law thus: We ought, however, to add that in the light of the general considerations which we have set out, it is of utmost importance that in appreciating evidence, the Court ought to adopt a very cautious, circumspect, and careful approach. If the evidence led by the parties in such a case is tested by cross-examination, it would be easier to determine where truth lies. But in the absence of cross-examination, appreciating the effect of competing affidavits is not an easy matter. In such a case, the Court must always enquire on which side the probabilities lie and must scrutinize the affidavits very critically to determine which of them deserves to be believed. Naturally, in dealing with such a question of fact in appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t no record is available with him to show that the Respondent was supplied with any material as is mandatorily required under Rule 45B. There is nothing on record also to show that at least the materials which were referred to in Shri Garcha's letter dated 4th September, 1990 were brought to the notice of the Respondent and he has been given an opportunity to make a statement in his defence. There is also nothing on record to show that even the materials in possession of Mr. Bakshi were requisitioned by Mr. Arya and he applied his own independent mind thereupon for directing preparation of record of evidence. From the tenor of the charge sheet dated 7.9.1990, it only appears that he merely heard the officer as to whether he pleads guilty thereto or not. The learned single Judge of the High Court has considered materials on record and came to the conclusion that valuable rights of the Respondent had been breached. The Division Bench went through the entire records and arrived at the same finding. The findings of the learned single Judge or the Division Bench cannot be said to be perverse or contrary to law. 30. We are, therefore, of the opinion that no case has been made out fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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