R-22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 11th July 2011.
+ W.P.(C) 2145/1998
ASHOK KUMAR ..... Petitioner
Through: Mr. Rishikesh, Advocate.
versus
DG. BSF & ORS. ..... Respondents
Through: Mr. Ankur Chibber, Advocate with
Mr. Bhupender Sharma, Deputy
Comdt./Law Officer for BSF
CORAM:
HON’BLE MR. JUSTICE PRADEEP NANDRAJOG
HON’BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J(Oral)
1. Learned counsel for the petitioner urges on the
proportionality of the punishment inflicted upon the petitioner
and gives up all other points urged in the writ petition.
2. The backdrop facts are that on 18.3.1996 petitioner was
charge sheeted for having committed an offence punishable
under Section 26 of the BSF Act 1968. It was alleged that on
26.2.1996, petitioner was detained for dak duty at BOP Rania,
W.P.(C) No. 2145/1998 Page | 1
which he did not perform and was found in a state of
intoxication.
3. Completing the proceedings pertaining to hearing of the
charge under Rule 45 of the BSF Rule, the Commandant of the
unit directed the Record of Evidence to be prepared at which
proceedings 4 persons were examined. Sharwan Singh stated,
as per the charge, that the petitioner was detained for dak duty
and sought permission of the Coy Commander to proceed to
Amritsar and make a STD call to his wife. The petitioner came to
him to collect the dak. He told the petitioner that the same was
not ready and he should revert after some time. The petitioner
never reverted. He was found missing at the evening roll call
and for which GD entry Ex.A was made. L/NK Rajesh Kumar
deposed that in his presence the petitioner sought permission to
go to the market at Amritsar and the Coy Commander Prem
Sagar Sharma gave permission and told that that the petitioner
could do so after completing dak duty and that at the evening
roll call the petitioner was found missing. At about 11 in the
night, the Coy Commander Prem Sagar Sharma brought the
petitioner at BOP in a vehicle and he could detect the petitioner
in a state of intoxication. Prem Sagar Sharma, Coy Commander
deposed that the petitioner had been permitted by him to go to
the market at Amritsar so that he could make a STD call at his
home, but after performing dak duties. He learnt that the
petitioner went to Amritsar without performing dak duties. Since
the petitioner did not return to BOP Rania till about 8.30 PM he
prepared a log Ex. C in which he entered petitioner’s absence.
W.P.(C) No. 2145/1998 Page | 2
The next day, civilians informed him that a BSF personnel was
lying in Village Rania. He reached the spot and saw the
petitioner lying in an intoxicated condition, unable to speak
coherently and he brought the petitioner to the Unit. O.Y.
Varghese deposed that the petitioner left BOP Rania without
collecting the dak.
4. Record shows that the officer drawing up the Record Of
Evidence granted opportunity to the petitioner to cross-examine
the witness but the petitioner declined to do so.
5. Petitioner made a statement contemplated by Rule 48(3)
of the BSF Rules 1969 stating that he left BOP Rania without
collecting dak as he has to make an urgent call to his wife as
their relationship were strained and he wanted to counsel her.
Being stressed, on the way back to BOP Rania, he consumed
alcohol and since he was so drunk which rendered him
incapacitated he requested the civilian to report to Coy
Commander.
6. Considering the Record Of Evidence, the Commandant
directed the petitioner’s trial at a Summary Security Force
Court; at which trial the petitioner pleaded guilty.
7. Convicting the petitioner and with reference to the service
record which showed that in the past for having consumed
alcohol and disobeying lawful command, the petitioner had
been awarded 28 days RI in force custody, the Court sentenced
the petitioner to be dismissed from service against which
statutory petition filed has been rejected.
W.P.(C) No. 2145/1998 Page | 3
8. From the facts noted herein above and in particular the
statement made by the petitioner in defence at the Record Of
Evidence it is apparent that the petitioner admitted the charge.
At the trial he pleaded guilty.
9. The question would be on the proportionality of the
punishment.
10. The petitioner joined service in the year 1989, exact date
not known to us, but the year can be gathered by us with
reference to the number assigned to the petitioner. It
commences with ’89’.
11. In our opinion, it would be a penalty disproportionate to
the gravity of the offence for not completing the job assigned
and being drunk; penalty being of dismissal from service. It
cannot be lost sight of that Jawans of BSF and other Para
Military Forces perform duties which are stressful. Sitting on the
current jurisdiction for the 6th months, we find a man power
shortage in each and every Central Para Military Force and as
against the universal norms followed, the force requiring 20%
personnel in reserve, we find that in India there are hardly any
reserved personnel either in the Indian Army or a Central Para
Military Force. This results in the Commandants or the
Regimental Heads not being able to sanction leave as and when
required by the Jawans and this becomes a source of mental
tension for these poor Jawans, who usually come from rural
backgrounds and are not able to handle stress, except by
drowning the same in liquor. In the instant case, the petitioner
was having a domestic problem and obviously was under a
W.P.(C) No. 2145/1998 Page | 4
mental stress. He consumed a peg or two in excess to drown his
sorrow and grief, as any other person sharing his socio
economic background would. We are not justifying what the
petitioner did, but note as aforesaid as a mitigating
circumstance.
12. In the circumstances we disposed of the writ quashing the
penalty of dismissal. We call upon the Director General BSF to
reconsider the matter qua levy of penalty and levy such penalty
as he may deem fit, but other than that of dismissal or removal
from service. The penalty would be of a kind where the
petitioner does not lose his service.
13. As regards the period post levy of penalty of removal from
service i.e. the impugned penalty till petitioner’s reinstatement,
which would be the automatic consequence of our present
direction, Director General BSF would pass an order
contemplated under FR 54 with respect to the period post
dismissal till reinstatement, which order learned counsel for the
petitioner states would not be questioned by the petitioner.
14. Necessary order would be passed within a period of 6
weeks from today.
15. No costs.
16. Dasti.
PRADEEP NANDRAJOG,J
SUNIL GAUR, J
JULY 11, 2011
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