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2012 Supreme(Del) 1780
High Court of Delhi
THE HONOURABLE MR. JUSTICE PRADEEP NANDRAJOG & THE HONOURABLE MR. JUSTICE MANMOHAN SINGH
Anil Kumar
Versus
UOI & Others
WP(C) 2681 OF 2000
Decided on : 06-08-2012
For the Appellants:Anil Gautam, Advocate.
For the Respondents:Ms. Barkha Babbar, Advocate.
The main legal point established is that procedural defaults, unless hitting at the root of the matter, would not vitiate a decision-making process.
Headnote:
BSF - Service Matter - BSF Act Sec 20(a), Sec 16(d), Sec 40 - The court discussed the charges against the petitioner under BSF Act Sec 20(a), Sec 16(d), and Sec 40. The judgment highlighted the petitioner's medical condition, the trial proceedings, and the Commandant's falsification of records. The court found the trial to be vitiated and quashed the penalty of dismissal from service, ordering the petitioner's reinstatement without back-wages.
Fact of the Case:
The petitioner, a BSF Constable, was charged with assaulting a superior officer, leaving his guard without orders, and consuming country liquor while on duty. The petitioner pleaded guilty, but later claimed the trial proceedings were falsified. The court found discrepancies in the records and the petitioner's defense of medical necessity.
Finding of the Court:
The court found the trial to be vitiated due to falsification of records and the petitioner's defense of medical necessity. The penalty of dismissal from service was quashed, and the petitioner was ordered to be reinstated without back-wages.
Issues: The issues revolved around the validity of the trial proceedings, the petitioner's plea of guilt, and the Commandant's actions in recording the plea.
Ratio Decidendi: The court held that the trial was vitiated due to falsification of records and the petitioner's defense of medical necessity, leading to the quashing of the dismissal penalty and the order for the petitioner's reinstatement without back-wages.
Final Decision: The court declared the trial against the petitioner as vitiated, quashed the penalty of dismissal from service, and ordered the petitioner's reinstatement without back-wages.
PRADEEP NANDRAJOG, J.
1. Having joined BSF as a Constable in the year 1988, the petitioner was attached to the 69th Bn. of BSF as on January 27, 1999, and was a part of “C”Company of the battalion, which was posted at Border Out Post (BOP) Noorpur.
2. It is the case of the petitioner, and for which assertion made by the petitioner, he admittedly gave proof to the superior authorities that he had swelling in his testicles due to which he was in pain. It is the case of the petitioner that his medical problem was known to the Coy Commander Subedar S.Chatterjee, who had assured him that he would give light duties to the petitioner. It is the further case of the petitioner that he learnt that the Coy Commander Subedar S.Chatterjee, HC Gurkmukh Singh and L/Nk. Mithiliesh Kumar were engaged in or were facilitating smuggling activities and even they learnt about the petitioner having said knowledge and thus extended threats to the petitioner to falsely implicate him; and despite the assurance of being assigned light duties by the Coy Commander, the petitioner was assigned strenuous duties.
3. It is not in dispute that on January 27, 1999, the petitioner was assigned duty as a sentry at the armoury (Kote) from 20:45 hours to 23:30 hours and admittedly he abandoned the place at around 20:50 hours, and taking along with him the Self Loading Rifle and ammunition, exited the Border Out Post, and this departure was noted by Ct.S.Mohan, on sentry duty at the main gate, who immediately informed the next superior officer i.e. L/Nk.Mithiliesh Kumar that petitioner had walked out of the Border Out Post with his arms and ammunition. At the same moment, the Coy Commander Subedar S.Chatterjee chanced to come out of his room and noted none being on duty at the Kote. L/Nk.Mithiliesh Kumar informed him of petitioner having walked out of the Border Out Post. A search party comprising HC Gurmukh Singh and L/Nk.Mithilesh Kumar was sent to track the petitioner and bring him back, and indeed the situation so warranted, inasmuch as the petitioner was carrying arms and ammunition.
4. Admittedly, L/Nk.Mithilesh Kumar and HC Gurmukh Singh were able to find the petitioner near a video hall. They brought him back.
5. At this stage of the events which transpired late night on January 27, 1999, the petitioner and the respondents parted company; each giving a different version.
1. 6. Whereas L/Nk.Mithilesh Kumar and HC Gurmukh Singh claim that they found the petitioner drunk, and when they asked him : Why had he abandoned the duty and what was he doing in the market? And claim that the petitioner replied: What duty? Who is the Coy Commander to detail my duty? And further on the way back i.e. when the two were bringing him back to the Border Out Post he hurled verbal abuses at them; and further when brought to the Border Out Post, and finding the petitioner drunk and abusive, he had to be immediately disarmed and as HC Gurmukh Singh went to disarm the petitioner, the petitioner attempted to hit HC Gurmukh Singh with the butt of his rifle. HC Gurmukh Singh blocked the blow. L/Nk.Mithilesh Kumar and the Coy Commander had to intervene to disarm the petitioner, who was then taken to the barracks and on the way, being intoxicated and hence unstable, fell on the bricks lying nearby. The petitioner denies being drunk or having verbally abused either/or L/Nk.Mithilesh Kumar and HC Gurmukh Singh. As per the petitioner, he was consulting a local doctor for his medical ailment i.e. swelling in the testicle, and since, when he was on sentry duty at the Kote, the pain became unbearable he left the duty place to visit the doctor concerned so as to be administered medicine which would give him immediate relief. According to the petitioner, as he reached the house of the doctor, he learnt that the doctor was not available and thus he returned to the Border Out Post, and when he was passing by the video hall, L/Nk.Mithilesh Kumar and HC Gurmukh Singh met him. According to
