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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Y.P. Nargotra,Hakim Imtiyaz Hussain, JJ.
Sukanta Mitra - Appellant
Versus
Union Of India & Ors. - Respondent
LPASW No. 184/2006
Decided On : 03 May, 2007
Disobedience - Border Security Act - Section 21(2) - Summary: The court discussed the interpretation of Section 21 of the BSF Act, emphasizing that a lawful command must be issued in the performance of official duties and that a subordinate legally has no option but to obey. The court found that the appellant's refusal to eat did not constitute wilful defiance and that the plea of guilt was invalid due to the absence of the appellant's signatures and failure to inform him of the general effect of the plea.
Fact of the Case:
The appellant, a Cook in the BSF, was tried for disobeying lawful commands related to meals and was dismissed from service. The appellant pleaded guilty, and the punishment was imposed. The appellant filed multiple appeals and writ petitions questioning the legality of the dismissal order.
Finding of the Court:
The court found that the appellant's refusal to eat did not constitute the offence under Section 21(2) of the BSF Act and that the plea of guilt was invalid due to procedural irregularities.
Issues: The issues involved the interpretation of Section 21 of the BSF Act, the validity of the plea of guilt, and the legality of the dismissal order.
Ratio Decidendi: The court emphasized that a lawful command must be issued in the performance of official duties and that the plea of guilt must be recorded with the appellant's signatures and after informing him of the general effect of the plea.
Final Decision: The court allowed the writ petition, set aside the impugned order, and quashed the dismissal order, entitling the appellant to all consequential benefits.
2. The appellant stood engaged as Cook in the BSF. He was tried for the offence under Section 21(2) of the Border Security Act on the following charges, which related to the three incidents.
"Charge sheet
The accused No. 891 100GBSF (Cook) Sukanta Mitra of 49 Bn. is charged with:-
@Z_TBL_BEG = COLUMNS(2), DIMENSION(IN), ABOVE(.1000), BELOW(.1000), HGUTTER(.0555), VGUTTER(.0555), BOX(Z_SINGLE), VGRID(Z_SINGLE), KEEP(OFF)
@Z_TBL_BODY = TABLE TEXT, TABLE TEXT
First charge BSF Act Section 21(2), Disobeying a lawful command given by his superior officer
, In that he,, at Dantiwada Gurarat) HQ 89 BN BSF,, on 26.05.2001 at about 2000 hrs while undergoing rigorous imprisonment in quarter guard and ordered by No.45003630 K D Kadam of his Unit to take dinner,, did not do so.
Second charge BSF Act Sec21 (2), Disobeying a lawful command given by his superior officer.
, In that he,, at Bantiwada (Gurarat) HQ 89 Bn BSF on 27.95.2001 at about 0730 hrs,, while undergoing rigorous imprisonment in quarter guard and ordered by No. 81733022 HC Mohd.
, Gayasuddin of his Unit to take breakfast,, did not do so.
Third charge BSF Act Sec 21 (2), Disobeying a lawful command given by his superior officer
, In that he,, at Dantiwada (Gurarat),, HQ 89 Bn BSF,, on 27.05.2001 a about 1130 hrs,, while undergoing rigorous imprisonment in quarter guard an ordered by IRLA No. 19240707 by Mr. R. Thoiba Singh,, BMO of his unit to take lunch,, did not do so.
Place: Srinagar Dated 15 Nov., Sd/-
, (O. P. Tanwar)
, Commandan
, 89 BN BSF."
@Z_TBL_END =
3. During the proceedings, the appellant is alleged to have pleaded guilty. By relying upon the plea of guilt of the appellant, the punishment of dismissal from service was imposed upon him by order dated 19th November 2001.
4. Being aggrieved of the order of dismissal the appellant preferred an appeal before the appellate authority. However, during the pendency of the appeal the appellant filed a writ petition 2214 (W) of 2002 before the High Court of Calcutta. The said writ petition of the appellant came to be disposed of with a direction to the respondents to consider the appeal and pass speaking and reasoned order. Pursuant to the said direction the appellate authority dismissed the appeal of the appellant by its reasoned order dated 7th June 2002. The appellant for assailing the order of the appellate authority again moved the High Court of Calcutta through Writ Petition No.3148 (W) of 2003, which was, however, dismissed on 5th March 2003 for want of jurisdiction. The appellant after dismissal of the above said writ petition filed the writ petition in this Court for questioning the legality of the original dismissal order passed by the appellate authority. The learned writ court noticing the plea of guilt taken by the appellant before the Summary Security Force Court found no merit in the writ petition and accordingly dismissed the same by order dated 17.03.2006, impugned in this appeal.
5. We have heard the learned counsel for the parties.
6. The contention of learned counsel for appellant in the first place is that the incidents on which the appellant was charge sheeted do not constitute the offence under Section 21 (2) of the BSF Act. As according to him, the appellant was not feeling well and, therefore, was within his rights to decline the meals. His second submission is that the plea of guilt which is said to have made by the appellant could not be validly relied upon by the Summary Security Force Court for conviction of the appellant, as the procedure for recording the same has not been strictly followed inasmuch as it does not bear the signatures of the appellant. Therefore, according to the learned counsel for appellant punishment of dismissal imposed upon the appellant is illegal.
7. Mr. Magoo, learned counsel for respondents submits that the appellant used abusi
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