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DELHI HIGH COURT
Pradeep Nandrajog, Pratibha Rani, JJ.
Ex-Constable Rajwant - Appellant
Versus
UOI & Ors. - Resopndent
W.P.(C) 6798/2006
Decided On : 23-03-2015
De-novo Trial - BSF Act, 1968 - Sections 20(c), 26, Rule 43, Rule 46, Rule 51(a), Rule 142 - The court discussed the legality of a de-novo trial, the procedural taint, and the nullification of proceedings due to procedural irregularities. The court emphasized the importance of following statutory provisions and the consequences of procedural derailment.
Fact of the Case:
The petitioner, a constable with BSF, was charged with abusing a superior officer and being drunk. After a de-novo trial, he was dismissed from service. The penalty was set aside due to procedural irregularities, and a fresh trial was conducted, resulting in the same penalty.
Finding of the Court:
The court found that the de-novo trial was warranted due to procedural taint at the stage of taking cognizance of the offence report. The petitioner's plea of guilt constituted evidence, and no coercion was proven. The petitioner's inconsistent claims were noted, and no arguments on proportionality of the penalty were raised.
Issues: The issues included the legality of the de-novo trial, coercion in the plea of guilt, and the sufficiency of evidence. The petitioner's appeal against the penalty was also considered.
Ratio Decidendi: The court emphasized the need to adhere to statutory provisions and nullify proceedings tainted by procedural irregularities. The plea of guilt constituted evidence, and the absence of coercion was noted. Inconsistent claims by the petitioner were considered, and the lack of arguments on proportionality of the penalty was highlighted.
Final Decision: The writ petition was dismissed without costs.
Pradeep Nandrajog, J.:--
1. At the hearing of the writ petition three contentions were urged on behalf of the petitioner, and thus before we note the relevant facts we set the tune for our decision by noting the three contentions which were urged.
2. The first was that the order levying the penalty of dismissal from service being the result of a de-novo trial conducted against the petitioner, and there being no provision for a de-novo trial either under the BSF Act, 1968 or the Rules framed there under, the same was a nullity and hence was the penalty also a nullity.
3. The second contention urged was that the plea of guilt recorded at the arraignment when the Court assembled on May 24, 2003 was the result of force and coercion.
4. Lastly, it was urged that it is a case of no evidence.
5. Regarding the last contention, there is an apparent mismatch between the same and the preceding contention for the reason, at the trial the petitioner has pleaded guilty and thus no evidence was led. If no evidence was led because the petitioner pleaded guilty, where would be the scope to argue that it was a case of no evidence. From the arguments advanced, where a reference was made to the statements of the witnesses made during Record of Evidence, it is apparent that what learned counsel wanted to urge was that there is no material which has surfaced during Record of Evidence proceedings.
6. With the aforenoted clarification regarding the second and the last submissions advanced, we note the relevant facts.
7. Enrolled as a constable with BSF and subject to the BSF Act, 1968 and the BSF Rules, 1969, the petitioner was employed with the 68th Bn. BSF stationed at Ambassa in September 2002.
8. On September 04, 2002, so was it alleged against the petitioner, when SI Birender Lal went to petitioner’s residence because information was received that the petitioner was standing outside his residence under influence of alcohol and was threatening to commit suicide, the petitioner abused the Officiating Commandant : Deputy Commandant J.S. Shimar. An offence report dated September 07, 2002 was put up before the officiating commandant as required by Rule 43 of the BSF Rules, 1969. As per the offence report it was alleged that the petitioner had committed an offence punishable under Section 20(c) of the BSF Act, in that, at about 13:10 hours on September 04, 2002 when SI Birender Lal went to his residence he abused the Officiating Commandant as also that the petitioner committed an offence punishable under Section 26 of the BSF Act because he was drunk. The petitioner was produced before Deputy Commandant J.S. Shimar (the Officiating Commandant) who examined SI Birender Lal, HC/BHM B.R. Yadav, HC Govardhan Singh and HC Hakim Singh and directed that a Record of Evidence be prepared. A charge-sheet was drawn up listing two charges against the petitioner as per the offence report.
9. Asstt.Commandant Ramesh Kumar was directed to conduct the Record of Evidence. He conducted Record of Evidence proceedings by recording the statements of six witnesses in the presence of the petitioner and gave an opportunity to the petitioner to cross-examine the witnesses, an opportunity which the petitioner declined to avail of.
10. The Record of Evidence was placed before the Commandant as required by Rule 51(a) of the BSF Rules, who after considering the same ordered the petitioner to be tried at a Security Force Court and for which the Commandant drew up a charge-sheet on September 20, 2002 and served the same upon the petitioner requiring him to be produced before the Court on September 30, 2002. Permitted by the Rules to preside over the Court, the Commandant conducted the proceedings on September 30, 2002, and at the arraignment the petitioner pleaded guilty. After explaining to the petitioner as required under Rule 142, the charges against him and the effect of petitioner pleading guilty, the plea of guilt not being withdrawn, as required by Rule 142, the Record of Ev
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