Allowed

The Director General Ssb and 3 Ors. v. Sri Anil Kumar Upadhyay

Gauhati HC11 Apr 2018WA/346/2017

Case brief

AI extract

What is this about?

This appeal challenges the High Court's order setting aside an order of removal from service against an SSB constable. The High Court had held that removal was excessive compared to the punishment given to the female constable who facilitated entry. The Gauhati High Court set aside the High Court's interference, holding that removal was justified due to the serious nature of the indiscipline.

What did the court decide?

The impugned judgment dated 02.05.2017 directing reconsideration of punishment to an amount short of removal was set aside.

The Director General Ssb and 3 Ors. Vs Sri… — Pension and Retirement Benefits | Gauhati HC (2018)

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GAHC010058022017

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WA 346/2017

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1:THE DIRECTOR GENERAL SSB and 3 ORS

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FORCE HEAD QUARTER, R.K. PURAM, EAST BLOCK V, SECTOR-1, NEW DELHI 110066

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2: THE INSPECTOR GENERAL

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FRONTIER HQR SSB NO. 345 NIKITA COMPLEX G.S. ROAD KHANAPARA GUWAHATI 781022

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3: THE DEPUTY INSPECTOR GENERAL SSB SECTOR HQR BONGAIGAON PIN 783380 4: THE COMMANDANT 15TH BN SSB BONGAIGAON DIST. BONGAIGAON PIN 78338

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VERSUS

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1:SRI ANIL KUMAR UPADHYAY

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S/O ASHOK KUMAR UPADHYAY, VILL. TULSICHARPARA, P.O. NATHAMALPUR, P.S. KRISHNANAGARH, DIST. BHOJPUR, BIHAR 802316

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Advocate for the Petitioner : MR.B CHAKRABORTY

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Advocate for the Respondent :

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BEFORE HON’BLE THE CHIEF JUSTICE MR. AJIT SINGH HON’BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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JUDGMENT

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Date : 11-04-2018

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(AM Bujor Barua, J.)

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Heard Mr. B. Chakravorty, learned Central Govt. Counsel for the appellants. Also heard Mr. M.H. Ahmed, learned counsel for the respondent.

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The respondent, who was appointed as a Head Constable (Ministerial) in the 15^th Bn. SSB had unauthorizedly entered the Mahila Barrack of the SSB on the intervening night of 14-15 April, 2013. In the circumstance, he was caught by the other lady constables/guards and the matter was reported to the Commandant of the Battalion. On 15.04.2013, he was placed under suspension. An offence report was prepared under Rule 44 of the SSB Rules 2009 and thereafter, the respondent was produced before the Commandant as required under Rule 46 of the said Rules.

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In the resultant circumstance, a charge under Section 43 of the SSB Act, 2007 was prepared by the order dated 20.04.2013 to the following effect:-

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i. In that, No.080619545 CT/GD (Female) Rupasi Barman of ‘D’ Coy, of 15^th Bn SSB Bongaigaon on the intervening night of 14-15 April, 2013 at about 0015 hrs while on duty as sentry of Mahila Barrack permitted No.110190026 HC(Min) Anil Kumar Upadhyay of ‘HQ’ Coy 15^th Bn SSB Bongaigaon to enter the Mahila barracki without authority by opening the gate.

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ii. In that, on the intervening night of 14-15 April, 2013 at about 0015 hours she helped and aided No.110190026 HC(Min) Anil Kumar Upadhyay of ‘HQ’ Coy 15^th Bn SSB Bongaigaon to enter into the Mahila barrack knowing fully that it was contrary to the existing SOP’s thereby compromising the security of female occupants of the said barrack.

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In the said order, it was also provided that a female constable Rupasi Barman of the same 15^th Bn. of SSB was found guilty of both the charges and was awarded the punishment of forfeiture of 02 (two) years seniority in the rank of Constable and forfeiture of 02(two) years service for the purpose of promotion.

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Upon the appellant pleading not guilty, the Commandant of the Battalion. ordered for recording of evidence and in the procedure adopted, the respondent was given all the opportunity to cross examine the prosecution witness as well as to produce his own defence witnesses. On 27.04.2013, the respondent was given a hearing on the record of evidence by the disciplinary authority and thereafter a Summary Force Court (in short SFC) was convened as provided under the SSB Act of 2007.

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The SFC was held on 29.04.2013, where, the prosecution witnesses and the defence witnesses were examined and their statements were recorded and the respondent was given the opportunity to cross-examine the prosecution witnesses. The SFC upon considering the materials on record concluded that the respondent was guilty of the charges alleged against him.

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Accordingly, the disciplinary authority on 29.04.2013 passed the promulgamation to dismiss the respondent and the proceedings were sent to the Deputy Inspector General for review as provided under Section 129 of the SSB Act of 2007 read with Rule 161 of the SSB Rules of 2009.

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The Deputy Inspector General upon consultation with the Addl. Judge Attorney General had converted the order of dismissal to that of removal as provided under Section 129 of the SSB Act of 2007 read with Rule 162(1)(b) of the SSB Rules of 2009. Accordingly, the disciplinary authority on 21.06.2013 had issued a re-promulgamation order of removal. The respondent submitted a representation dated 22.08.2013 against the order of removal but the same on not being in order was returned back. The respondent accordingly submitted an appeal dated 16.10.2013 before the Inspector General of Police, which was rejected by the order dated 06.12.2013, where one of the ground of rejection was that it was submitted beyond the period of three months. The appellant submitted another appeal on 20.12.2013 explaining as to why there was a delay in filing the earlier appeal. By the subsequent order 24.01.2014 of the Inspector General, the punishment of removal from service was maintained by stating that the charges against the respondent are serious in nature

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and such indiscipline and unbecoming conduct is unacceptable from a member of the disciplined force.

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Being aggrieved, the writ petition being WP(C) 3576/2014 was preferred by the respondent against the order dated 21.06.2013 of the Deputy Inspector General as well as the orders dated 06.12.2013 and 24.01.2014 of the Inspector General, by which the order of removal was imposed and maintained upon the respondent.

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The said writ petition was given a final consideration by the judgment and order dated 02.05.2017. By the judgment and order of 02.05.2017, the learned Single Judge arrived at a conclusion that there was no procedural aberration in conducting the proceeding against the respondent. But however, the learned Single Judge was of the view that the female constable Rupasi Barman was on sentry duty at the mahila barrack when the respondent went to meet her and from her evidence, it was reflected that the respondent was harbouring a romantic interest towards the female constable and that is why, in order to offer her a gift in the new year eve, he had entered the mahila barrack, when she herself unlocked the barrack gate.

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The learned Single Judge also took note that for allowing the respondent to enter the mahila barrack when she was on sentry duty, a parallel proceeding was also drawn against the lady constable, resulting in the order dated 26.04.2013, by which, on being found guilty of both the charges, she was imposed the punishment of forfeiture of two year seniority in the rank of constable and also forfeiture of two years service for the purpose of promotion. The learned Single Judge further concludes that the misconduct on the part of the sentry constable Rupasi Barman in facilitating the entry of the respondent to the mahila barrack arise out of one incident, which was somewhat similar. Yet a much lesser punishment was imposed on the female constable whereas, the respondent who was a partner in crime was imposed the punishment of removal from service. A further conclusion was that the nature of the charge against the respondent reflects an act of romantic overtures where some reciprocal reaction was also seen from the female constable.

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Accordingly, the learned Single Judge was of the view that the respondent also deserves a lesser punishment which would be short of secession of his service.

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The present appeal is preferred by the Director General of SSB and others against the

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judgment and order 02.05.2017 in WP(C) No.3576/2014.

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Mr. B. Chakraborty, learned Central Govt. Counsel appearing for the appellants urges upon the ground that the respondent being a member of a disciplined force is required to maintain strict discipline and not to violate the departmental orders and entered the mahila barrack in the middle of the night without any authority.

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A perusal of the records of the proceeding held against the petitioner reveals that the respondent was caught hold of by several lady constables inside the mahila barrack and he was found hiding under the quilt of the lady constable Rupasi Barman. The said material on record clearly indicates that the respondent had not merely gone to offer a gift to the lady constable Rupasi Barman, who was on sentry duty, but on the other hand, he had gone well inside the mahila barrack to the detriment and security of the other lady constables. Further, the departmental rules imposes a strict restriction on any male constable from entering the mahila barrack. It would a more serious offending act considering the aspect that not only the respondent had violated such departmental rules, but had entered the mahila barrack at an unholy time after the midnight.

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The said conduct on the part of the respondent as revealed from the materials on record cannot be construed to be a romantic overture, but on an overall consideration it has to be accepted to be a gross violation of the departmental rules as well as an act of indiscipline which goes into the root of the character of the respondent.

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In view of such conduct on the part of the respondent, the order dated 21.06.2013 of the Deputy Inspector General as well as the order dated 06.12.2013 and 24.01.2014 arriving at a conclusion that the respondent being a member of a disciplined force had acted in an indiscipline manner by violating the departmental rules and also exposing the lady constable in the mahila barrack to a breach of security, cannot be held to be arbitrary or unreasonable.

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On the aspect of comparing the act on the part of the lady constable and that of the respondent in the judgment and order dated 02.05.2017, it is to be noticed that while the lady constable had merely allowed the respondent to enter the mahila barrack, but on the other hand, the

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respondent in violation of the departmental rules, in the middle of the night had ventured out and went inside the mahila barrack, which houses the lady constables. The said act is more proactive and reflects the state of mind to commit a prohibited act, which is clearly distinguishable from the act of the lady constable in allowing the respondent to enter the mahila barrack. From such point of view also, it cannot be accepted that the conduct of the respondent and that of the lady constable are similar in nature and therefore, the punishment meted to the respondent was disproportionate and requires a reconsideration.

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The law regarding the proportion of punishment is settled to the extent that unless the punishment meted to the delinquent shocks the conscience of the Court, the same should not be interfered and it is best left to the administrative authorities to decide as to what should be the appropriate punishment for a given offence.

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In the instant case, the misconduct on the part of the respondent being serious in nature and doing an act which is against the departmental rules and further exposing the lady constables to a security threat, it cannot be accepted that the punishment of removal from service shocks the conscience of the Court to warrant a reconsideration of the punishment.

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The Supreme Court in State of Meghalaya and Ors., –vs- Mecken Singh N. Marak reported in (2008) 7 SCC 580 in has held that

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“A Court or a tribunal while dealing with quantum of punishment has to record reasons as to why it felt that the punishment is not commensurate with the proved charges.”

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14 “In the matter of imposition of sentence, the scope of interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons.”

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“The respondent belonged to a disciplined force. He was supposed to carry out the instruction given to him by his superiors…When a statute gives discretion to a administrator to take a decision, the scope of judicial review would remain limited.”

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“Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the Court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The High Court in this case, has not only interfered with the punishment imposed by the disciplinary authority in a routine manner but overstepped its jurisdiction by directing the appellate authority to impose any other punishment short of removal. By fathering the discretion of the appellate authority to impose appropriate punishment for serious misconducts committed by the respondent, the High Court totally misdirected itself while exercising jurisdiction under Article 226.”

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The Division Bench of this Court in Union of India and Ors. –vs- Sukraj Deb Barma reported in 2004 (2) GLT 309 has held as under:-

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“25. While considering punishment to be awarded to a person by any department or organization the functioning of the department or the organization, concerned has to be borne in mind. The standard of discipline and adherence to the principles of showing regard and respect to a superior in an armed force or a paramilitary force cannot be equated with other civilian departments. A very high degree of discipline, a deep sense of respect to superiors and an abiding instinct to follow the received are hallmark of a disciplined organization, which is entrusted with the security of the nation. Any leniency or compassion shown in such cases may adversely affect the interest of the force, the very objective with which it is formed, and the role, which it has to play. Its working ability depends upon a very high degree of discipline and complete obedience to all just and lawful commands of the superiors. Hence, in a force, such as the BSF, if a person is allowed to be let off with leniency even when he assaults his superior in rank, it may become well nigh impossible for such a force to function as a disciplined force.”

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From a combined reading of the case of R.K. Sharma (supra) and the case of narain Singh (supra) it is abundantly clear that the High Court shall not interfere with the quantum of sentence once the charges are proved, merely on the ground that the sentence is disproportionate unless the case is a case of extreme nature, which, on the very face of the record shows perversity or irrationality, bias or defiance of logic. In the absence of perversity or irrationality or defiance of logic in imposing punishment, the punishment imposed cannot be interfered with.”

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In view of the propositions of law laid down by the Supreme Court as well as the Division Bench of this Court, the judgment and order dated 02.05.2017 of the learned Single Judge in WP(C) 3576/2014 to the extent that the appellants are required to reconsider the punishment of removal from service by imposing the punishment which will not secede the service of the respondent, is found to be unsustainable and accordingly, set aside.

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JUDGE

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CHIEF JUSTICE

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Comparing Assistant

The Director General Ssb and 3 Ors. v. Sri Anil Kumar Upadhyay

Case brief

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What did the court decide?

The Director General Ssb and 3 Ors. v. Sri Anil Kumar Upadhyay

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