Shri Thoru Ram vs Union Of India (Uoi) And Anr. on 27 September, 2002

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Delhi High Court
Shri Thoru Ram vs Union Of India (Uoi) And Anr. on 27 September, 2002
Equivalent citations: 2003 (66) DRJ 172
Author: S Sinha
Bench: S Sinha, A Sikri


JUDGMENT

S.B. Sinha, C.J.

1. The petitioner in this writ petition has, inter alia questioned a
proceedings held in General Security Force Court. He also has prayed for a
direction upon the respondents to pay unto him the full pay and allowances for the
period he was deployed on duty during the period of his suspension.

2. Before adverting to the contentions raised in the writ petition, the
fact of the matter in brief may be noticed.

3. The petitioner joined the Punjab Armed Police as Constable. He
was enrolled in the Border Security Force in the year 1967 in the rank of Head
Constable. At the relevant point of time, he was posted as Deputy Commandant.
In May 1990, he was posted in 115 Bn. which was then deployed in South Bengal
Frontier of the Border Security Force.

4. The petitioner allegedly asked certain candidates to undergo
swimming exercises at Digberia, Distt. Barasat, West Bengal on 30th September
1991.

5. In course of the said exercise, three Constables died of drowning
where after the petitioner was placed under suspension vide an order dated 19th
December 1991 which is in the following terms:

“Whereas a case against Shri. Thoru Ram
(IRLA No. 2776). Dy. Comdt. of 115 Bn BSF
Border Security Force in respect of an offence for a
grave act of criminal negligence, is under
investigation.

2. And whereas it is alleged that the said Shri
Thoru Ram, Dy. Comdt. of, 115 Battalion of the
Border Security Force and committed certain acts of
omission and commission by issuing illegal order
on 30.9.91 to the members of the Force placed
under his command to swim across a pond as a
measure of punishment which has resulted in the
unnatural death of Constables Manipal Singh, S.K.
Chobey and Dalbir Singh on 30.9.91.

3. Now, therefore, the Central Government in
exercise of the powers conferred by Clause (i) of
Rule 40-A of BSF Rules 1969 as amended hereby
places the said Shri Thoru Ram, Dy. Comdt., under
suspension with immediate effect.

4. It is further ordered that during the period
this order remains in force the said Shri Thoru Ram
Dy. Comdt. shall not leave the Headquarters of 115
Bn. BSF, without obtaining the permission of the
competent authority.”

6. However, on or about 14th January, 1992, he was taken back in
service wherefor the following order was issued:

“As desired by Sector Headquarter Calcutta
vide their Msg. No. A/4824 dated: 06 Jan’ 92 &
msg. No. A/4827 dated: 13 Jan 1992. The service
of Sh. Thoru Ram, DC will be utilized for static and
administrative duties. He will not perform any
active duty.”

7. However, the said order was modified by an order dated 17th
January 1992 in terms whereof instead and in place of “for active duty” the words
“for operational duties” were to be substituted. According to the petitioner,
however, he had been deployed on full-fledged security duties which are
considered to be tough and arduous ones.

8. A charge-sheet dated 10th July 1992 was issued against the
petitioner in relation to the afore-mentioned incident dated 30th September, 1991,
which is in the following terms:

“CHARGE SHEET

APPENDIX VI

Rule 53 (2)

IRLA No. 2776 Shri Thoru Ram, Dy.

Commandant of 115 Bn. BSF, is charged with:-

BSF Act An omission prejudicial to good
order Section 40 and discipline of the Forces.

In that he,

at Bn Rear HQ Digberia Camp, Badu,
Barasat, on 30.9.91 at about 0645 hrs while working
as Officer Commanding Rear HQ 115 Bn BSF:

improperly omitted to take due care and caution
while ordered troops to swim in nearby pond, in
uniform with B-scale, consequence whereof 3
constables named No. 88123456 Const. Manipal
Singh, No. 89002924 Const. Satayender Kumar
Choubey and No. 90755665 Const. Dalbir Singh of
the same battalion died due to drowning.”

9. The said charge-sheet was issued in terms of the Section 40 of the
BSF Act. On or about 23rd April 1992, a First Information Report was also
lodged by the Commandant purported to be for commission of an offence under
Section 304-A IPC for having caused the death of the afore-mentioned three
constables. According to the petitioner, the second respondent herein as also the
appellate authority of the petitioner visited Calcutta and held the conference of
officers wherein he categorically stated that the petitioner would be severally
punished. The General Security Force Court assembled on 15th July 1992, the
order wherefor is to the following effect:

“Shri Thoru Ram IRLA No. 2776. Dy.

Commandant of 115 Bn. BSF

Date 15th July 1992

The officers as mentioned below will
assemble at BN. HQ. Tagorevilla, Alambazar,
Calcutta (West Bengal) on the 22nd day of July 1992
for the purpose of trying by a General Security
Force Court the accused person (named in the
margin).

The senior officer to sit as Presiding Officer.

MEMBERS

1. Shri K.B. Singh (IRLA-05616) Addl. DIG,
Trg. Dte, HQ. DG BSF New Delhi.

2. Shri M.A. Khan (IRLA 20666) 21C,
Attached with Adm. Dte. HQ DG BSF New
Delhi.

3. Shri A.M. Khan, (IRLA 28778) Dy. Comdt.
01 BN BSF.

4. Shri P.N. Das (IRLA 2986) JAD (MT) SHO
BSF Krishnagar

5. Shri R.N. Nair (IRLA 33202) Dy. Comdt.

65 BN BSF.

WAITING MEMBERS

1. Shri L.D. Lohani (IRLA 32674) JAD
(Comn) HQ SB Ftr BSF

2. Shri B. Sengupta (IRLA 35422) Dy. Comdt,
12 BN BSF

LAW OFFICER

Shri Kuldeep Saini, JAD (Law), HQ DG
BSF New Delhi is appointed Law Officer

PROSECUtor

Shri A.K. Bandyopadhya (IRLA 10317)
AD (Prov) HQ SB Ftr BSF is appointed Prosecutor.

Services of Shri K.B. Singh (IRLA 05616)
Addl. DIG, Trg. Dte HQ DG BSF New Delhi and
Shri M.A. Khan (IRLA 20660) 21 C attached with
Adm. Dte HQ DG BSF New Delhi, the members at
Srl. Nos. 1 & 2 have been placed at the disposal of
IG BSF South Bengal Ftr vide HQ DG BSF Signal
No. R/3517 of 27th June 1992.

It is not practicable to appoint officers of
different battalions/HQrs due to the exigencies of
service.

The accused person will be warned and all
witnesses duly required to attend.

The proceedings (of which only two copies
are required) will be forwarded to the Chief Law
Officer for post trial advice.”

10. It is not in dispute that out of five members, S/Shri A.M. Khan,
P.N. Das and R.N. Nair were from Bengal whereas S/Shri K.B. Singh and M.A.
Khan were brought from Head Quarters. However, the waiting members were
also from Bengal. The said S/Shri Singh and M.A. Khan had been placed at
the disposal of the IG BSF South Bengal by respondent No. 2 in terms of Signal
No. R/3517 of 27th June 1992. The local police recorded the petitioner’s
statement on 25th July 1992 which according to the petitioner caused grave
prejudice to him. The said investigation, however, was closed on the next date.
Within a short span of time namely on 30th July 1992, the BSF Court concluded
its trial wherein the petitioner was sentenced to suffer forfeiture of seven years’
service for purpose of pension and severe reprimand. He, thereafter filed a
statutory petition on 27th November 1992. The petitioner, however, was
permitted to superannuate on 3rd December, 1992. The order of suspension was
revoked three months after his retirement namely on 5th March 1993. The
petitioner’s application against the order of conviction was rejected on 6th July
1994.

11. The petitioner in this writ petition raised a number of contentions
including the constitution of the court. It was contended that the constitution of
the court was in violation of Rule 61(1) of the Border Security Force Rules. It
was further contended that the conviction of the petitioner is based on no evidence
and thus the impugned order must be set aside being irrational. It was further
submitted that the petitioner has been deprived of a fair trial in so far as the Law
Officer not only addressed the court on questions of law but also on fact which is
impermissible in terms of Rule 126 of the said Rules. The petitioner also
contends that the material witnesses have not been examined.

12. Ms. Anjana Gosain, the learned counsel appearing on behalf of the
respondents, on the other hand, would contend that main records as regards the
constitution of the court is not available. As regards alleged violation of Rule 61
of the Rules, the learned counsel would submit that the same is directory in
nature. According to the learned counsel, several witnesses were examined in the
proceedings. The learned counsel would contend that the petitioner could have
objected to the constitution of the said court at the initial stage but he failed to do
the same.

13. According to the learned counsel, in the said proceedings, nine
witnesses examined themselves. The learned counsel would contend that those
who had not been examined, their evidence was not material and thus, the
petitioner cannot be said to be prejudiced thereby.

14. From what has been noticed hereinbefore, there cannot be any
doubt whatsoever that although the petitioner was placed under suspension by an
order dated 19th December 1991, as he had been put in service by an order dated
14th January 1992, he would be deemed to be on duty and thus from the said date,
and, thus, he would be entitled to the entire pay and allowances admissible to him
as if he was in active service. In this view of the matter, it is not necessary for us
to go into the question as to whatever services an officer is to put, to, would be
deemed to be in active service or not.

15. So far as the contention relating to illegal constitution of the court
is concerned, it appears, that the DIG acts as a delegated authority. He, therefore,
normally is entitled to detail officers who are within his jurisdiction to take part in
the said Court Martial. Rule 61(1) of the BSF Rules provides that a court shall
consist, as far as practicable, of officers of different battalions or units. In the
instant case, admittedly, the said provision has not been complied with. It is true
that the said Rule having regard to the language employed therein cannot be said
to be imperative in character but, as noticed hereinbefore, the respondents have
failed to show as to why it was not practicable to comply with Rule 61 aforementioned.
Furthermore, in terms of Rule 62(e) of the said Rules, it is for the
convening authority alone to appoint members of the court. A bare perusal of the
composition of court, as contained in the afore-mentioned proceedings dated 15th
July 1992 would show that two of the members had been placed at the services of
the DIG, Bengal by the Inspector General of Border Security Force Headquarters.
Under what circumstances, the said officers were placed for the purpose of
holding the trial is not known.

16. The contention of Ms. Gosain to the effect that the petitioner could
have objected to the illegality in the matter of constitution of court at that time
only does not seem to be correct in view of Section 84 of the BSF Act which
reads thus:

“84. Challenge .– (1) At all trials by a
General Security Force Court or by a Petty Security
Force Court, as soon as the court is assembled, the
names of the presiding officer and members shall be
read over to the accused, who shall thereupon be
asked whether he objects to being tried by any
officer sitting on the court.

(2) If the accused objects to such officer, his
objection and also the reply thereto of the officer
objected to shall be heard and recorded, and the
remaining officers of the court shall in the absence
of the challenged officer decide on the objection.

(3) If the objection is allowed by one-half or
more of the votes of the officers entitled to vote, the
objection shall be allowed, and the member
objected to shall retire, and his vacancy may be
filed in the prescribed manner, by another officer
subject to the same right of the accused to subject.

(4) When no challenge is made, or when a
challenge has been made and disallowed, or the
place of every officer successfully challenged has
been filled by another officer to whom no objection
is made or allowed, the court shall proceed with the
trial.”

17. Section 84 of the Act, thereupon, operates in a limited filed. In terms
of the said provision, the petitioner could not have objected to the legality or
otherwise of the constitution of the court.

18. The said provision is pari materia with the provisions of Section
111 of the Air Force Act. B.N. Kirpal, J. as his Lordship then was, in Sahab
Dayal Sharma v. Union of India and Ors.,
1987 Lab. IC 843 held:

“13. …By virtue of Section 111, it was
respondent 3 who alone could be the Convening
Officer. In fact in the present case the decision to
order District Court Martial was taken by
respondent 3 on 30th Sept. 1973. Rule 43(3)
thereafter required that very convening officer is to
appoint and detail officers to from the court. This
was not done in the present case. The function
under Rule 43(3) was discharged not by respondent 3
out by Wing Commander R.O. Lakin. This was not
permissible under the said rule. …”

19. It is, therefore, incorrect to contend that the petitioner could have
raised the objection at that stage.

20. As regards judicial review, the learned Judge held:

16. …In any case, what is being challenged by
the petitioner here is jurisdictional fact, namely, the
jurisdiction of the court martial as constituted to try
the petitioner. If the court martial has not been
validly convened, then it had no jurisdiction to
proceed with trial and consequently its decision and
the subsequent action taken thereon has all to be
regarded as being without jurisdiction. This
jurisdictional infirmity can always be challenged by
filing a writ petition under Article 226 of the
Constitution. The reading of the aforesaid
provisions of the Act and the Rules leaves no
manner of doubt that the District Court Martial was
not properly constituted as the mandatory
provisions of Rule 43(3) had not been complied with
an because of the invalidity in the order convening
that court, the decision of the said court and the
punishment which has been ultimately imposed on
the petitioner by respondent 3, and upheld by the
Central Government, has therefore, to be quashed.”

21. In view of the afore-mentioned authoritative pronouncement, the
constitution of the court must be held to be bad in law.

22. It is now a well-settled principle of law that a statutory authority
must act within the four corners of the statute. In vitarelli v. Seaton, (1959) 359 US 535: 3 L Ed 2d 1012 Justice Frankfurter laid down the law in the following
words:…..

‘He who takes the procedural swords must perish with it’ as quoted in Ramana
Dayaram Shetty v. the International Indian Airport Authority of India and Ors., , as under:

An executive agency must be rigorously
held to the standards by which it professes its action
to be judged…. Accordingly, if dismissal from
employment is based on a defined procedure, even
though generous beyond the requirements that bind
such agency, that procedure must be scrupulously
observed…. This judicially evolved rule of
administrative law is now firmly established and, if
I may add, rightly so. He that takes the procedural
sword shall perish with the sword.”

23. It is not in dispute that Shri K.B. Singh and Shri M.A. Khan were
posted in the headquarters of the Director General of Delhi. The petitioner had
raised a contention that there had been no dearth of officers from South Bengal
Frontier. According to him, hundreds of such officers are available in the State
but although the authority could find out two waiting members from West Bengal,
in the court, two members from outside had been thrust upon the convening
authority. Such an unauthorized act on the part of the convening authority, in our
opinion, would amount to malice in law. The petitioner, as noticed hereinbefore,
has categorically stated that the respondent No. 2 together with the appellate
authority came to the site and threatened that the petitioner would be dealt with
severally. The allegation of malice which led to the unfair trial of the petitioner
must be considered from this angle. The submission of Ms. Gosain to the effect
that as majority of members were from West Bengal, no prejudice was caused to
the petitioner is stated to be rejected. It is now a well-settled principle of law that
for the purpose of proving bias, the actual bias is not necessary to be established.
What is necessary to be established in a case of this nature is a real likelihood of
bias. When a person becomes a member of an adjudicating body, although his
discharge may not be conclusive but it is well-known that he may be able to
persuade others to agree with him (See A.K. Kraipak and Ors. v. Union of India and Ors., .

24. It is now a well-settled principle of law that justice is not only to be
done but manifestly seen to be done.

25. In ‘Natural Justice’ by Paul Jackson, the law is stated to be in the
following terms:

“It is the recognition of the importance of
the requirement that justice is seen to be done that
justifies the giving of a remedy to a litigant even
when it may be claimed that a decision alleged to be
vitiated by a breach of natural justice would still
have been reached had a fair hearing been given by
an impartial tribunal. The maxim is applicable
precisely when the court is concerned not with a
case of actual injustice but with the appearance of
injustice, or possible injustice. In Altco Ltd. v.
Sutherland, (1971) 2 Lloyd’s Rep. 515 Donaldson J.
said that the court, in deciding whether to interfere
where an arbitrator had not given a party a full
hearing, was not concerned with whether a further
hearing would produce a different or the same
result. It was important that the parties should not
only be given justice, but, as reasonable men, know
that they had had justice or “to use the time
hallowed phrase” that justice should not only be
done but be seen to be done. In R. v. Thames
Magistrates’ Court, ex p. Polemis, (1974) 1 W.L.R.
1371, the applicant obtained an order of certiorari to
quash his conviction by a stipendiary magistrate on
the ground that he had not had sufficient time to
prepare his defense. The Divisional Court rejected
the argument that, in its discretion, it ought to refuse
relief because the applicant had no defense to the
charge.

“It is again absolutely basic to
out system that justice must not only be
done but must manifestly be seen to be
done. If justice was so clearly not seen
to be done, as on the afternoon in
question here, it seems to me that it is
no answer to the applicant to say: ‘Well,
even if the case had been properly
conducted, the result would have been
the same.’ That is mixing up doing
justice with seeing that justice is done”
(per Lord Widgery C.J. at p. 1375):

Stringer v. Minister of Housing, [1970]
1 W.L.R. 1281, 1297.

In Maxwell v. Department of Trade [1974]
1 Q.B. 523, 540 Lawton L.J. expressed a similar
idea when he said, “Doing what is right may still
result in unfairness if it is done in the wrong way.”
Barrs v. British Wool Marketing Board. [1957]
S.C. 72, 82, per Lord President (Clyde). It is
because the assurance that justice has been seen to
be done is, in itself, n important element in the
public confidence in the settlement of disputes,
whether in the courts or by other bodies, that, for
example, the rules of natural justice may apply even
to what might be regarded as “open and shut cases.”
Megarry J. explained why, when warning of the
danger of regarding any case as “open and shut”;

“‘When something is obvious’ (it
may be said), ‘why force everybody to go
through the tiresome waste of time
involved in framing charges and giving an
opportunity to be heard? The result is
obvious from the start.’ Those who takes
this view do not, I think, do themselves
justice. As everybody who has anything to
do with the law well knows, the path of
the is strewn with examples of open and
shut cases which, somehow, were not; of
unanswerable charges which, in the event,
were completely answered; or inexplicable
conduct which was fully explained of
fixed and unalterable determinations that,
by discussion, suffered a change. Nor are
those with any knowledge of human nature
who pause to hink for a moment likely to
underestimate the feelings of resentment of
those who find that a decision against them
has been made without their being afforded
any opportunity to influence the course of
events” ( John v. Rees [1970] Ch. 345,

402).”

26. We, therefore, agree with the learned counsel that by reason of
such constitution, the petitioner has been prejudiced. In any event, the said
officers were appointed by the second respondent and not by the convening
authority which is imperative as would be evident from Rule 62(e) which reads as
under:

“Rule 62. Duties of convening officer when
convening Courts: When an Officer
convenes a Court he shall:

(a) issue a convening order in the appropriate form
set out in Appendix VII;

(b) direct upon what charges the accused is to be
tried and ensure that the accused has been remanded
for trial by a Court upon these charges; by his
Commandant;

(c) if he is of the opinion that charges shall be put in
separate charge sheets, so direct and shall also
direct the order in which they are to be tried;

(d) direct, if there is more than one accused whether
the accused are to be tried jointly or separately;

(e) appoint members of the Court and any waiting
members;

(f) in convening:

(i) a General Security Force Court; or

(ii) a Petty Security Force Court which
he considers should be attended by a
Law Officer, take the necessary steps
to procure the appointment of a Law
Officer by or on behalf of the Chief
Law Officer;

(g) appoint an officer, subject to the Act or a
counsel assisted by such an officer subject to the
Act, to prosecute:

Provided that the convening officer may
appoint more than one such officer to prosecute if
he thinks fit (R. 123)

(h) appoint an interpreter wherever necessary;

(i) send to the senior member the charge sheet, the
convening order and a copy of the record or abstract
of evidence from which any evidence which in his
opinion would be inadmissible at the trial has been
expurgated;

(j) forward to each member of the court and to each
waiting member, a copy of the charge-sheet;

(k) forward to the prosecutor copies of the charge
sheet and convening order and the original record or
abstract of evidence together with an unexpurgated
copy thereof showing the passage (if any) which
have been expurgated in the copy sent to the senior
member;

(l) forward to the Law Officer (if any) copies of the
charge sheet and convening order and an
unexpurgated copy of the record or abstract of
evidence showing the passage (if any) which have
been expurgated in the copy sent to the senior
member;

(m) ensure that the Commandant has summoned all
the prosecution witnesses and such defense
witnesses as the accused may have requested to be
summoned under Rule 64.”

27. It is true that nine witnesses had been examined in the court of
enquiry. According to the witnesses, the petitioner gave direction to the
Constables to jump into water with the ‘B’ scale equipment but it has also come
in evidence that the petitioner categorically stated that only those persons who
know swimming should do so and others who do not know swimming would be
given the lessons. If further appears from the records that whereas others swam to
the other side of the pond, only one person was drowning. With a view to save
him, two other persons went near him and in the process, all the three persons
died. It further appears from the records that the petitioner merely directed as
regards carrying out of practice by swimming by saying “shuru karo” meaning
thereby “start”. PW1 HC Jeevan Bhujal categorically stated that the petitioner
instructed that only those persons who know swimming should come forward and
is to the same extent is the evidence of Sub Inspector Reddy who examined
himself as PW4. Sub Inspector Reddy was in charge of the Constables in
question. Constable Satpal and Constable Vijay Kumar who examined
themselves as PW5 and 6 respectively also confirmed to the afore-mentioned
statement of the witnesses. It further appears from the evidence of PW1 that
under the instructions of the petitioner even nylon rope and other swimming aid
were brought to the place of exercise, which shows that all due care and caution
had been taken. It is, therefore, not a case where the petitioners forced those to
undertake the said exercise who did not know swimming. It has also not been
disputed that under the instructions of the petitioner, only a few men entered the
water and others had awaited.

28. In this view of the matter, we are of the opinion that it was not a
case where it could be said that charges had been proved against the petitioner.

29. Rule 126 of the BSF Rules reads thus:

“Rule 126. Power and duties of Law
Officer: Where a Law Officer has been named to
act on the court, he shall-

(a) give his opinion on any question of law
relating to the charge or trial whenever so required
by the Court, the prosecutor or the accused;

(b) inform the Court of any irregularities or
other infirmity in the proceedings;

(c) inform the Convening Officer and the Court
of any infirmity or defect in the charge or in the
constitution of the Court;

(d) sum up the evidence and give his opinion on
any question of law before the Court proceeds to
deliberate upon its findings.

(2) It shall be the duty of the law
Officer to ensure that the accused does not suffer
any disadvantage in consequence of his position as
such or because of ignorance or incapacity to
examine or cross-examine witnesses and for this
purpose the law Officer may, with the permission
of the Court, call witnesses and put questions to
them which appear to him to be necessary or
desirable.

(3) In the discharge of his duties, the
Law Officer shall maintain an attitude of strict
impartiality.

(4) Where any opinion has been given
by the Law Officer to the Court on any matter
before it, it may be entered in the proceedings, if the
Law Officer or the Court desires it to be entered.

(5) The Law Officer shall represent the
Chief Law Officer at a Security Force Court.”

30. The proceedings in the Security Force Act are akin to the jury trial
although actually it is not, as has been noticed by the Apex Court in Union of India and Anr. v. Charanjit S. Gill and Ors., .

31. The role of a Law Officer in terms of the afore-mentioned Rule,
need not be highlighted. The Law Officer in proceedings under the Act, acts like
a Judge-Advocate under the Army Act. In his briefing, the categorically stated
that the statement of HC Jeevan Bhujal had been corroborated in material
particulars of PW3, 4, 5, 6, 7, 8, 9, 10 and 12. Whether a statement had been
corroborated or not is a question of fact. The Law Officer, therefore, could not
express his opinion thereupon.

32. Yet again, while referring to PW 11, he stated that this statement
had also been corroborated by the enrolled follower (barber) Ram Narayan.

33. Yet again, in answer to court question No. 20, the accused had also
accepted that those three Constables were putting on ‘B’ scale equipment.

34. Thus, the Law Officer not only expressed his opinion on question
of fact, he sought to influence the court by saying that the petitioner has accepted
the act which would amount to a confession of guilt by him.

35. In view of the afore-mentioned infirmities, we are of the opinion
that the impugned proceedings cannot be sustained which are set aside
accordingly.

36. This writ petit on is allowed with the direction that the arrears must
be paid to the petitioner at an early date and not later than one month from the
communication of this order with interest at the rate of 9% per annum till actual
payment. The respondents shall also bear the cost of the petitioner which is
quantified at Rs. 5000/-.

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