2003 Supreme(SC) 296

2003(2) Supreme 560
SUPREME COURT OF INDIA
(From Delhi High Court)
N. Santosh Hegde & S.B. Sinha, JJ.
Union of India & Ors. -Appellants
versus
B.N. Jha -Respondent
Civil Appeal No. 2054 of 2002
Decided on 7-3-2003
Counsel for the Parties :
For the Appellants : Ranjit Kumar, Sr. Advocate, S. Wasim A. Qadri and Ms. Sushma Suri, Advocates.
For the Respondent : R.P. Sharma and Ms. Prasanthi Prasad, Advocates.

IMPORTANT POINT
An authority who is higher than Commandant, in exercise of his power conferred upon him under Rule 46 of Border Security Force Rules, 1969 could not have directed the Commandant of a wing of his own unit to initiate departmental proceedings.

Headnote:Border Security Force Act, 1968-Section 2(1)(f)-Commandant-Border Security Force Rules, 1969-Rules 45B and 46-Disciplinary enquiry against respondent for accepting illegal gratification-Enquiry conducted by a person who was a witness in trial and respondent was denied protection from bias-Single Judge held there was gross violation of Rules 45B and 46 of the Border Security Force Rules-Upheld by D.B.-Appeal to Supreme Court-Whether High Court was right? (Yes)-Appeal dismissed.

       Held : 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 Basic Training Centre or Specialised Training Centre and School or Administrative Wing are wings of the BSF, Training Centre & School; each wing being a component thereof the same cannot be treated to be a separate unit for the purpose of Rule 45B of the Rules. Section 2(1)(f) of the Border Security Force Act defines Commandant with reference to a unit and not Commandant as a holder of post. Rule 46 is a proviso or an exception to Rule 45B of the Rules. It seeks to protect an accused from bias or real likelihood of bias of a Commandant and in the event, the Commandant himself is a witness or is otherwise personally interested in the matter, he is to place the matter before a competent authority to see that the accused is attached to a different unit. (Paras 18 and 19)

       In the instant case, Mr. Garcha in his letter to Mr. M.S. Arya described himself as Commandant, BTC, TC & S which itself is a pointer to show that BTC is not a unit totally independent 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 vs. Gordhandas Bhanji (AIR 1952 SC 16) and Union of India and Others vs. Harish Chandra Goswami {(1999) 4 SCC 575}]. Bias against the respondent on the part of Mr. Garcha is undisputed. (Para 22)

       Rule 45B confers a discretionary power upon the Commandant of the accused to discharge not only on the ground that there does not exist any material on record to proceed against him but also on the ground that having regard to the previous character of the accused and the nature of charges against him it was not advisable to proceed further in the matter. Rule 45B of the Rules, therefore, having regard to the extent and nature of the power of the disciplinary authority, leaves no manner of doubt that the Commandant of the accused is required to apply his mind on the materials on record so as to enable him to arrive at a finding in favour or against the officer. The manner in which the chargesheet has been drawn leads to only one conclusion that Mr. Arya did so only on the command of Mr. Garcha. On a querry made by us, Mr. Ranjit Kumar stated that no record is available with him to show that the respondent was supplied with any material as is mandatorily required under Rule 45 B. 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. We are, therefore, of the opinion that no case has been made out for interfering with the impugned judgment in exercise of our jurisdiction under Article 136 of the Constitution of India. This appeal is, therefore, dismissed. But in the facts and circumstances of the case, there shall be no order as to costs. (Paras 36 to 39)