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2012 Supreme(Del) 2125
HIGH COURT OF DELHI
GITA MITTAL & J.R. MIDHA, JJ
Mukesh Kumar Sharma
Versus
UOI & Others
W.P.(C) 318 of 2012 & CM No. 671 of 2012
Decided On: 14-12-2012
Important Points
Subject
Administrative Law - Military Law
Act Referred
INDO TIBETAN BORDER POLICE ACT : S.246, S.49, S.59, S.33(f), S.87, S.58
INDO TIBETAN BORDER POLICE FORCE ACT : S.87(2), S.87(1), S.59(1), S.58(1)(a), S.58(1)(b)
INDO TIBETAN BORDER POLICE FORCE RULES : R.46
Headnote
ITBPF Act - Jurisdiction - Sections 58, 59, 87 - Summary proceedings, review of punishment, and prohibition of second trial - The court discussed the provisions of Sections 58, 59, and 87 of the ITBPF Act, 1992, and their interpretation in the context of summary proceedings, review of punishment, and prohibition of second trial. The court emphasized that the reviewing authority's power is limited to cancel, vary, or remit the punishment and make other appropriate directions, and does not include the authority to order a second trial.
Fact of the Case:
The petitioner, a Sub-Inspector in the ITBP, was charged with an offence under Section 33(f) of the ITBPF Act for not providing transportation bill and receipt, resulting in financial loss to ITBP personnel. He was summarily tried and awarded a sentence of 'reprimand'. The Director General set aside the summary trial and directed a General Force Court trial against the petitioner, leading to the petitioner's challenge of the orders.
Finding of the Court:
The court held that the Director General's order directing a second trial was without jurisdiction and legally unsustainable, as it contravened the specific bar under Section 87 of the Act. The signals and proceedings held by the respondents were declared void ab initio, and the petitioner was entitled to all consequential benefits.
Issues: The key issues were the statutory prohibition of second trial under Section 87 of the ITBPF Act, the scope of the reviewing authority's power under Section 59, and the legality of the Director General's order for a second trial.
Ratio Decidendi: The court emphasized that the reviewing authority's power is limited to cancel, vary, or remit the punishment and make other appropriate directions, and does not include the authority to order a second trial. It also cited precedents to support the distinction between cases where a trial is null and void from its inception and cases where the trial is unsatisfactory but the accused cannot be tried again.
Final Decision: The signals and proceedings held by the respondents were declared void ab initio, and the petitioner was entitled to all consequential benefits. The writ petition was allowed in favor of the petitioner.
For the Petitioner:Ankur Chhibber, Advocate.
For the Respondents:Utkarsh Sharma, B.V. Niren, Advocates.
GITA MITTAL, J
1. The petitioner has assailed the signal dated 1st December, 2012 issued by the respondents informing him that the summary proceedings initiated against him have been set aside by the competent authority with further directions for holding a General Force Court against the petitioner. The petitioner also assails the signal dated 14th December, 2011 sent by the respondents stating that the petitioner’s trial was tentatively scheduled in the second week of January, 2012.
2. The respondents purported to have exercised jurisdiction under the Indo Tibetan Border Police Force Act, 1992 (ITBPF Act, 1992) and the rules framed thereunder. The challenge by the petitioner rests primarily on the contention that the proposed action of the respondents was statutorily prohibited under Section 87 of the ITBPF Act inasmuch as the respondents had no authority or jurisdiction to try the petitioner for the second time, once he has been dealt with under Section 58 of the ITBPF Act, 1992.
3. To the extent necessary, the facts giving rise to the petition are briefly noticed hereafter.
4. The petitioner was enrolled in Indo Tibetan Border Police (‘ITBP’ in short) on 31st August, 1988 as a Sub-Inspector. While posted on 15th January, 2009 with the 32nd Battalion of the ITBP, the petitioner was given the responsibility to arrange the vehicles on hire basis for transportation of troops/stores from Shivpuri to Chandigarh as the unit was not having adequate vehicles. Two buses and two trucks were hired for this purpose and the troops were moved accordingly. Thereafter, certain complaints were received by the Director General of the ITBP with regard to hiring of the civil transport by the petitioner.
5. A record of evidence was held against the petitioner on the allegations of having committed offence under Section 33(f) of the ITBPF Act. It is noteworthy that the charge against the petitioner was that in the month of January, 2009 at Chandigarh, he did not proceed the Bill-T, the transportation bill and receipt of the transportation charges for the troops of 32nd Battalion for which reason, the processing of TA claims could not be effected immediately resulting in financial loss to the ITBP personnel. The record of evidence held the charge against the petitioner as having been proved and recommended disciplinary action against him.
6. Pursuant thereto, the respondents exercised jurisdiction under Section 58 of the ITBP Act and issued a memorandum to the petitioner informing him that the competent authority had decided to dispose of the matter against the petitioner by summarily trying him under Section 58 of the statute on the following charge:-
“Charge Sheet
The accused, No.880100074 Mukesh Kumar Sharma, AC/GD of 32 Bn is charged with.
Doing a thing with intent to cause
wrongful loss to others.
In that he,
First Charge
In the month of January, 2009 at
Under Section Chandigarh did not provide the Bill-T
33(f) ITBPF ACT 1992 Place: Special Frontier, ITBP and receipt of the transportation charges to the troops of 32nd Bn for which the process of their TA claims could not be processed immediately and they suffered financial loss.
Date: 26.07.2011
s/d-
Inspector General
Special Frontier, ITBPF”
7. The petitioner was summarily tried on 29th July, 2011 by the competent authority who was the Inspector General (Special Frontier). By an order dated 8th August, 2011, the petitioner was awarded a sentence ‘to be reprimanded’. It is undisputed that the petitioner accepted the punishment handed out to him and did not assail the same by way of statutory appeal.
8. The matter appears to have thereafter been placed, as required under Section 59 of the ITBP Act, 1992, before the Director General, ITBP who was the statutory reviewing authority. It appears that the Director General, ITBP considered the matter under Sections 49 and 246 of the ITBP Act and rules thereunder and set aside the summary trial proceedings. A further direction was issued by
