{"id":119891,"date":"2006-05-03T00:00:00","date_gmt":"2006-05-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/agya-ram-vs-union-of-india-and-ors-on-3-may-2006"},"modified":"2017-05-18T06:43:49","modified_gmt":"2017-05-18T01:13:49","slug":"agya-ram-vs-union-of-india-and-ors-on-3-may-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/agya-ram-vs-union-of-india-and-ors-on-3-may-2006","title":{"rendered":"Agya Ram vs Union Of India And Ors on 3 May, 2006"},"content":{"rendered":"<div class=\"docsource_main\">Jammu High Court<\/div>\n<div class=\"doc_title\">Agya Ram vs Union Of India And Ors on 3 May, 2006<\/div>\n<pre>       \n\n  \n\n  \n\n \n\n \n \n  HIGH COURT OF JAMMU AND KASHMIR AT JAMMU            \n SWP No. 90 of 2004  \n\n Agya Ram  \n   Petitioner\n Union of India and ors\n   Respondents \n\n! Mr Sudershan Sharma, Advocate for the Petitioner.\n^ Mr Ajay Sharma,CGSC for the Respondents.   \n\n Coram \nHon'ble Mr Justice   Nirmal Singh, Judge\n Dated : 03\/05\/2006\n\n: JUDGMENT :  \n<\/pre>\n<p>        The facts in brief be noticed as under:-\n<\/p>\n<p>Petitioner was enrolled in Border Security Force on 15th June&#8217;91, as a Cook. After<br \/>\ncompletion of training, he was remustered as Constable (GD) on 30th May&#8217;95. He<br \/>\nproceeded on one day&#8217;s casual leave  on 1st March&#8217;99 with permission to avail one<br \/>\nday&#8217;s gazetted holiday on 2nd March&#8217;99. He was due to join his duties on 3rd March&#8217;99<br \/>\nbut he did not join  and instead sent an application  on 18th March&#8217;99 for grant of 30<br \/>\ndays earned leave due to the sickness of his wife without any medical document in<br \/>\nsupport of his claim. His request for grant of said leave was not accepted by the<br \/>\ncompetent authority due to exigency of service.  The petitioner was informed at his<br \/>\nresidential address on 5th March&#8217;99 vide letter No. Estt\/41\/Disc\/AR\/75BN\/99\/3938<br \/>\ndirecting him to join the duty.\n<\/p>\n<p><span class=\"hidden_text\">                                        (2)<\/span><\/p>\n<p>After more than 30 days of absence of the petitioner, a one man Court of Inquiry was<br \/>\nordered on 29th May&#8217;99 under Section 62 of the Border Security Force Act (here-in-<br \/>\nafter referred to as the Act). After completion of the Court of Inquiry, a show cause<br \/>\nnotice was issued to the petitioner through Registered letter dt. 2nd July&#8217;99, at his<br \/>\nhome address but the show cause notice was received back un-delivered. Petitioner<br \/>\nreported for duty on 24th Aug&#8217;99 after overstaying for 174 days. Petitioner was<br \/>\narrested as per Rule 36(1)(iii)(d) of BSF Rules, 1969 (here-in-after referred to as<br \/>\nrules), for disposal of disciplinary action under Section 19(B) of the rules.After<br \/>\ncompletion of Summary court proceedings, petitioner was dismissed from service.<br \/>\nPetitioner impugned order of dismissal  in this court  in SWP No. 2650\/99. The said<br \/>\nwrit petition was disposed of by observing as under:-\n<\/p>\n<p>        &#8220;In view of what has been stated above, the respondents are directed to<br \/>\nreconsider the issue as to whether the extreme penalty of dismissal was required to be<br \/>\ninflicted or the ends of justice would be served by reverting the petitioner to the post<br \/>\nwhich he was occupying earlier to whom he was remustered as a Constable. These are<br \/>\nmatters on which decision has to be taken by the respondents. They are left free to take<br \/>\na decision. This petition would be treated as a statutory appeal in terms of Section<br \/>\n117-A of the Border Security Force Act read with Section 168 of the Border Security<br \/>\nForce Act.\n<\/p>\n<p><span class=\"hidden_text\">                                                (3)<\/span><\/p>\n<p>Let a decision be taken within a period of four months from the date, a copy of<br \/>\nthe order passed by this Court is made available by the petitioner to the respondents<br \/>\nand also to the learned counsel (Mr Ajay Sharma, Additional Central Government<br \/>\nStanding Counsel), who has put in appearance on behalf of the respondents today.<br \/>\nThe competent authority to see as to what relief the petitioner is found entitled.\n<\/p>\n<p>        Disposed of accordingly.&#8221;\n<\/p>\n<p>        In pursuance of order passed by this court, respondent No.2 considered the<br \/>\nappeal of the petitioner and rejected the same vide order dt. 7th Oct&#8217;02, impugned in<br \/>\nthe present writ petition. Petitioner thus, is seeking quashing of order dt. 7th Sept&#8217;99<br \/>\nvide which the petitioner was dismissed from service and order dt. 7th Oct&#8217;02, vide<br \/>\nwhich the appeal of the petitioner has been rejected. Petitioner is also seeking<br \/>\nmandamus directing respondents to treat the petitioner on active duty and pay him all<br \/>\nconsequential benefits.\n<\/p>\n<p>        Mr Sudershan Sharma, learned counsel for the petitioner  submitted that the<br \/>\npetitioner had not committed any such misconduct  in discharge of his official duty<br \/>\nwhich deserved dismissal from service. He submitted that the punishment awarded is<br \/>\nnot commensurate  with the act of the petitioner. It was stated that while imposing the<br \/>\npunishment, the disciplinary authority must act reasonably and should impose the<br \/>\npenalty<\/p>\n<p><span class=\"hidden_text\">                                        (4)<\/span><\/p>\n<p>which commensurates with the act of the delinquent official. He submitted that the<br \/>\npetitioner proceeded on one day&#8217;s casual leave but could not join his duty as the wife<br \/>\nof the petitioner fell ill and the petitioner had applied for earned leave, which was not<br \/>\nsanctioned and, in the meanwhile, the petitioner himself fell ill as a result of which the<br \/>\npetitioner could not join his duty. It is submitted that respondents in their reply have<br \/>\nadmitted that the petitioner approached Commandant of the Battalion  for grant of 30<br \/>\ndays earned leave on the ground of sickness of wife but the said leave application was<br \/>\nrejected as there was no medical document attached with the application. He<br \/>\ncontended that the Commandant should have directed the petitioner to produce the<br \/>\nmedical evidence. It is stated that the petitioner has placed on record the medical<br \/>\ncertificates issued by a Government doctor which would substantiate the claim of the<br \/>\npetitioner that his wife as also he himself fell ill.\n<\/p>\n<p>        On the other hand, the learned counsel appearing for respondents submitted<br \/>\nthat no error whatsoever has been pointed out by the learned counsel for the petitioner<br \/>\nin holding the Court of Inquiry or proceedings adopted by the respondents. He<br \/>\nsubmitted that the Court of Inquiry was conducted according to the rules and the<br \/>\nprinciples of natural justice  were also followed.  It is submitted that the petitioner is a<br \/>\nhabitual absentee and he has now made a ground that firstly his wife fell and then he<br \/>\nhimself fell ill. The learned counsel submitted that the writ courts are not to disturb the<br \/>\npunishment awarded by the competent authority under the Act as the<br \/>\n<span class=\"hidden_text\">                                        (5)<\/span><br \/>\nwrit court is not a court of appeal. In support of his submission, reliance was placed on<br \/>\nAIR 1988 SC 705, Vidya Parkash v. Union of India, AIR 1998 SC 577, Union of India<br \/>\nand ors v. Major A.Hussain and AIR 2003 SC 1437, Director General, RPF and ors v.<br \/>\nCh. Sai Babu.\n<\/p>\n<p>        I have given my thoughtful consideration to the submissions made by the<br \/>\nlearned counsel for the parties and perused the record.\n<\/p>\n<p>        Learned counsel for the petitioner has not challenged the court of inquiry<br \/>\nproceedings conducted by respondents. The only contention raised by the learned<br \/>\ncounsel for the petitioner is that the penalty imposed is not commensurate with the act<br \/>\nof the petitioner. It is admitted case that the petitioner absented himself from duty<br \/>\nearlier on two occasions and this was the third time when the petitioner has chosen to<br \/>\nremain absent. The petitioner when earlier filed the writ petition, referred to above, he<br \/>\nhad taken a stand that no opportunity was given to the petitioner with regard to<br \/>\nexplaining the previous absence which has been taken note of by the punishing<br \/>\nauthority. Petitioner in the present writ petition has not given any explanation for<br \/>\nremaining absent on earlier two occasions. The petitioner has failed to point out any<br \/>\nerror in holding the court of inquiry proceedings or that the principles of natural<br \/>\njustice have not been complied with. The writ court cannot reopen and appreciate the<br \/>\nevidence as to whether the evidence was sufficient for imposing a major penalty. This<br \/>\nis the domain of disciplinary authority to see as to what punishment<\/p>\n<p><span class=\"hidden_text\">                                                (6)<\/span><\/p>\n<p>is to be awarded. The scope of judicial review has been considered by the Supreme<br \/>\nCourt in the case of Major A.Hussain (supra). In para 22 of the judgment, it has been<br \/>\nobserved as under:-\n<\/p>\n<p>        &#8220;Though court martial proceedings are subject to judicial review by the High<br \/>\nCourt under Article 226 of the Constitution, the court martial is not subject to the<br \/>\nsuperintendence of the High Court under Article 227 of the Constitution. If a court<br \/>\nmartial has been properly convened and there is no challenge to its composition and<br \/>\nthe proceedings are in accordance with the procedure prescribed, the High Court or<br \/>\nfor that matter any court must stay its hands. Proceedings of a court martial are not to<br \/>\nbe compared with the proceedings in a criminal Court under the Code of Criminal<br \/>\nProcedure where adjournments have become a matter of routine though that is also<br \/>\nagainst the provisions of law. It has been rightly said that court martial remains to a<br \/>\nsignificant degree, a specialized part of overall mechanism by which the military<br \/>\ndiscipline is preserved. It is for the special need for the armed forces that a person<br \/>\nsubject to Army Act is tried by court martial for an act which is an offence under the<br \/>\nAct. Court martial discharges judicial function and to a great extent is a Court where<br \/>\nprovisions of Evidence Act are applicable. A court martial has also the same<br \/>\nresponsibility as any Court to protect the rights of the accused charged before it and<br \/>\nto follow the procedural safeguards. If one looks at the provisions of law relating to<br \/>\ncourt martial in the Army Act, the Army Rules, Defence Service Regulations and other<br \/>\n<span class=\"hidden_text\">                                        (7)<\/span><\/p>\n<p>Administrative Instructions of the Army, it is manifestly clear that the procedure<br \/>\nprescribed is perhaps equally fair if not more than a criminal trial provides to the<br \/>\naccused. When there is sufficient evidence to sustain conviction, it is unnecessary to<br \/>\nexamine if pre-trial investigation was adequate or not. Requirement of proper and<br \/>\nadequate investigation If not jurisdictional and any violation thereof does not<br \/>\ninvalidate the court martial unless it is shown that accused has been prejudiced or a<br \/>\nmandatory provision has been violated. One may usefully refer to Rule 149 quoted<br \/>\nabove. The High Court should not allow the challenge to the validity of conviction and<br \/>\nsentence of the accused when evidence is sufficient, court martial has jurisdiction over<br \/>\nthe subject matter and has followed the prescribed procedure and is within its powers<br \/>\nto award punishment.&#8221;\n<\/p>\n<p>        In Ch. Sai Babu&#8217;s case ,referred to above, it was further interpreted as under:-\n<\/p>\n<p>        &#8220;Normally, the punishment imposed by disciplinary authority should not be<br \/>\ndisturbed by the High Court or tribunal except in appropriate cases that too only after<br \/>\nreaching a conclusion that the punishment imposed is grossly or shockingly<br \/>\ndisproportionate, after examining all the relevant factors including nature of charges<br \/>\nproved against the delinquent, the past conduct, penalty imposed earlier, the nature of<br \/>\nduties assigned having due regard to their sensitiveness,<br \/>\n<span class=\"hidden_text\">                                        (8)<\/span><\/p>\n<p>exactness expected of an discipline required to be maintained, and the<br \/>\ndepartment\/establishment in which the concerned delinquent person works. Merely<br \/>\nbecause it is felt that the punishment imposed was extreme is not enough to disturb or<br \/>\nmodify the punishment imposed on a delinquent officer. The Court has to record<br \/>\nreasons to say as to how the punishment imposed on the delinquent is shockingly or<br \/>\ngrossly disproportionate to the gravity of charges held proved against him. It is not<br \/>\nthat in every case of imposing a punishment or removal or dismissal from service a<br \/>\nHigh Court can modify  such punishment merely saying that it is shockingly<br \/>\ndisproportionate.&#8221;\n<\/p>\n<p>        Chapter III of the Act specifies the offences and also the punishments for such<br \/>\noffences. Section 19 specifies that &#8216;absence without leave&#8217; constitutes an offence  and<br \/>\non conviction by the Security Force Court, the person concerned is liable to suffer<br \/>\nimprisonment for a term which may extend to three years or such less punishment as is<br \/>\nmentioned in this Act.\n<\/p>\n<p>        Chapter IV deals with the punishments. One of the punishment provided under<br \/>\nthe Act is dismissal from service. In this case,  the petitioner after availing the leave,<br \/>\ndid not report back. He applied for earned leave after remaining absent for about<br \/>\nsixteen days on the ground that his wife is ill but during this period, he did not join his<br \/>\nduties even though, his wife was not admitted in any hospital and as per the certificate<br \/>\n<span class=\"hidden_text\">                                        (9)<\/span><\/p>\n<p>placed on record (Anenxure A), she was advised home treatment.  Same is the case of<br \/>\nthe petitioner. These medical certificates seem to have been procured by the petitioner<br \/>\nto justify his absence.  Petitioner is a member of disciplined force, and therefore, there<br \/>\nis no scope for taking a lenient view for a person who is habitual absentee.\n<\/p>\n<p>        For the reasons mentioned above, this petition is found to be without merit and<br \/>\nis dismissed along with connected CMP(s), if any.\n<\/p>\n<p>                                                                (Nirmal Singh)<br \/>\n                                                                 Judge<br \/>\nJammu<br \/>\n3.5.06<br \/>\nSS\/ <\/p>\n","protected":false},"excerpt":{"rendered":"<p>Jammu High Court Agya Ram vs Union Of India And Ors on 3 May, 2006 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU SWP No. 90 of 2004 Agya Ram Petitioner Union of India and ors Respondents ! Mr Sudershan Sharma, Advocate for the Petitioner. ^ Mr Ajay Sharma,CGSC for the Respondents. Coram Hon&#8217;ble Mr [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,17],"tags":[],"class_list":["post-119891","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.0 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Agya Ram vs Union Of India And Ors on 3 May, 2006 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/agya-ram-vs-union-of-india-and-ors-on-3-may-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Agya Ram vs Union Of India And Ors on 3 May, 2006 - Free Judgements of Supreme Court &amp; 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