Partly allowed

Kuldeep Kour v. U.O.I and Ors.

J&K HC4 Aug 2023SWP/2974/2002

Case brief

AI extract

What is this about?

A single-judge High Court of Jammu, Kashmir and Ladakh, allowing a writ petition filed by the wife of a deceased BSF clerk, quashed the forfeiture of 10 years of service for pension purposes. The court held that while forfeiture of promotion service was appropriate, the additional pension forfeiture was shockingly disproportionate to a single admitted misconduct charge where the amount was recover

What did the court decide?

Quashed the forfeiture of 10 years of service for pension; ordered respondents to refix pension and pay arrears within three months.

Kuldeep Kour Vs U.O.I and Ors. — Pension and Retirement Benefits | J&K HC (2023)

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HIGH COURT OF JAMMU, KASHMIR AND LADAKH AT JAMMU

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Reserved on : 01.06.2023 Pronounced on: 04.08.2023

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SWP No. 2974/2002

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Kuldeep Kour

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…..Appellant(s)/Petitioner(s)

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Through: Ms. S. Kour, Sr. Advocate with Mr. Michal Dogra, Advocate

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Union of India and Ors.

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.…. Respondent(s)

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Through: Mr. Suneel Malhotra, Advocate

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Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

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JUDGMENT

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The petitioner (now deceased) had filed the present petition for quashing the order No. 35 Bn/Estt/GSFC-MSB/2002/42-45 dated 02.01.2002, by virtue of which 15 years of the service for the purpose of promotion and 10 years of the service for the purpose of pension of the petitioner was forfeited and the petitioner was also severely reprimanded. The petitioner has also sought the quashing of the proceedings of the General Security Force Court and the charges framed against the petitioner. The prayer has also been made for quashing the order No. 6/72/2002/Petition/CLO(D&L)/BSF/2661-64 dated 11.03.2002 passed by the Chief Law Officer (D&L) on behalf of the Director-General of BSF, by virtue of which “mercy appeal” of the petitioner was rejected being devoid of merit. After the demise of the original petitioner, the present petition is being prosecuted by the wife of the deceased-petitioner (for reference “the petitioner” shall mean “the deceased-petitioner”).

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SWP No. 2974/2002

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The petitioner after mentioning his past service credentials has stated that false and frivolous allegations were levelled against the petitioner and the charge under Section 30 (b) of the BSF Act was framed against the petitioner on 12.10.2001 on the allegations of dishonestly misappropriating the property belonging to the Government. The false allegations were that at Samba between August 1996 to December 1998, the petitioner while performing the duties of Unit “Q” Clerk dishonestly misappropriated a sum of ₹ 87,004.48 received from various Coys of 35 Bn. on account of casual diet charges. It is stated that the petitioner had deposited an amount of ₹ 2,41,992.91 in the Government Treasury through cashier/accountant of 35 Bn. BSF. The treasury receipt was not issued in respect of amount in question and the same was kept pending, as the Commandant during Company Commanders Conference ordered for the stoppage of depositing of the same amount into the Government Treasury and further advised for utilization of the said amount for the improvement of company mess. That was done on the verbal instructions of Commandant during conference. As there was some difference in the amount of money received by the companies, which was required to be refunded, the same could not be done because the Unit was moving and the petitioner was also assigned the duties to hire civil transport from local State Government Authorities, which took considerable time as the movement of the Unit was uncertain and also the disposal of land cases was one of the main concern. During that period, the petitioner also fell ill and remained under treatment for 70 days. During the illness, the unit of the petitioner moved to new location and HC Rajinder Parsad visited the home of the petitioner to seek his help in sorting out the board

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SWP No. 2974/2002

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proceedings of tentage required to be handed over to the incoming unit. The petitioner enquired from him regarding his office almirah, which was kept double locked in the office, as the petitioner had kept the cash in almirah and instructed Rajinder Parshad to look after almirah. The petitioner after recovering from illness and after rejoining enquired about the said Almirah from HC Ramesh Chand, who told the petitioner that his office almirah had been kept in the store duly locked and a paper patch was pasted by Subedar J P Nathani. The petitioner had not misappropriated any amount, as the amount was lying in the almirah and was deposited in Government Treasury vide receipt No. GG-154873 dated 23.12.1999.

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The petitioner has challenged the orders impugned and also the proceedings of the General Security Force Court on the grounds that the respondents have not followed any of the provisions of the BSF Act and the rules framed thereunder. In the petition, the petitioner has hardly left any rule, which as per the petitioner, has not been violated by the respondents. As per the petitioner, the whole of the proceedings initiated and conducted were contrary to the BSF Act and Rules framed thereunder. It is also alleged that the respondents without any reasonable cause and reasons imposed such harsh punishments, which do not commensurate with the allegations levelled against the petitioner. It is also urged by the petitioner that the appeal filed by the petitioner has been rejected in a mechanical manner.

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The respondents in their reply have stated that in July 1999 ASI/Clerk D. K Mishra was directed to take over the charge of Q Branch of 35 Bn. BSF

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SWP No. 2974/2002

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from the petitioner vide order dated 07.07.1999. E Coy of 35 Bn BSF intimated on 23.08.1999 that treasury receipt for ₹ 51,439.52 deposited by the Coy has not been received by them. On asking other Coys, it was revealed that in some other cases also, the treasury receipt had not been issued. Since no such cash was handed over to ASI/Clerk D K Mishra by the petitioner, a board of officers were detailed vide order No. 35 Bn/Q/Ration/99/15245-48 dated 24.09.1999 to ascertain the exact amount deposited by the Coys with the petitioner but not deposited in the Government treasury. The board of officers vide board proceedings dated 20.10.1999 submitted that a sum of ₹ 78,004.48 only received by the petitioner from different Coys from 06 December 1996 onwards had not been deposited into the Government treasury. After processing the case, on the basis of board proceedings on 04.12.1999, a show cause notice was issued to the petitioner vide letter dated 04.12.1999 as to why he kept with him such a huge amount but not deposited with the Government treasury and he was asked to deposit ₹ 78,004.48 in the Government treasury within one week. The petitioner did not deposit the amount within the stipulated time for which the petitioner was brought before the Commandant, 35 Bn BSF for hearing on charge-sheet under Rule 45 (B) of BSF Rules 1969. The respondents have narrated the details of the proceedings conducted while taking action against the petitioner. The respondents have also given the details of the punishments awarded to the petitioner during his service. The mercy application dated 10.11.2001 was submitted by the petitioner to the Inspector General BSF R&G Frontier through SHQ BSF, Gujarat and as the representation of the petitioner was received very late, he was directed to submit a fresh petition to DG BSF, if he so desired. A

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fresh mercy appeal dated 03.01.2002 was submitted by the petitioner to DG BSF, New Delhi and the same was considered but rejected being devoid of merit vide communication dated 11.03.2002. The respondents have denied the assertions of the petitioner regarding verbal instructions passed during the Company Commanders Conference for stoppage of depositing of amount in respect of casual diet with the Government treasury and utilize the amount for improvement of Coy mess. It is further stated that the petitioner had proceeded on leave several times from 1996 to 1999 but the petitioner did not bother to hand over the cash to his successor, who was detailed from time to time to look after his duty in his absence during the leave period. Even after receipt of the notice, the petitioner did not deposit the amount within the stipulated period but deposited the same on 23.12.1999, only after establishing the disciplinary case. It is also averred that it was not necessary to conduct Court of Inquiry because the board of officers had already worked out the actual amount, which was collected by the petitioner but not deposited in the Government treasury. Hence, the Commandant heard the petitioner on a charge under section 30 (b) of BSF Act as per BSF Rule 45 (B). Precisely, the stand of the respondents is that due procedure as prescribed under the BSF Act and the rules were followed and proper opportunity was afforded to the petitioner to defend the charge against him. The respondents placed on record the board proceedings, the show cause notice and other documents to substantiate that proper procedure was followed by the respondents.

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Ms. Surinder Kour, learned Senior Counsel for the petitioner submitted that the entire proceedings were conducted by the respondents in derogation of

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the procedure prescribed under the BSF Act and Rules framed thereunder. She further submitted that the General Security Force Court was not convened by competent officer and the petitioner never pleaded guilty to the charge and also that one witness, namely, HC Ramesh Chand sought to be summoned by the petitioner was never summoned by the Recording Officer. She also argued that the three punishments could not have been imposed upon the petitioner under Rules and the punishments imposed upon the petitioner do not commensurate with the alleged mis-conduct of the petitioner. Ms Kour, learned senior counsel placed reliance upon the various judgments i.e Ranjit Thakur v. Union of India reported in 1987AIR (SC) 2386 , Lt. Col. Prithi Pal Singh Bedi and ors. v. Union of India & ors reported in 1982 AIR(SC)1413 , Krishan Chand v. Union of India & ors . SWP No. 790/2003, decided by this Court on 01.06.2023, Santosh Kumar v. Union of India , SWP No. 1415/2006, decided by this court on 19.04.2023.

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Mr. Sunil Malhotra, learned CGSC submitted that the due procedure prescribed under the Act and the Rules framed thereunder was followed during the proceedings. He further submitted that the fact that the petitioner pleaded guilty is borne from the mercy appeal submitted by the petitioner annexed as Annexure-D to the writ petition.

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Heard and perused the record, including the record produced by the respondents.

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Before this Court proceeds ahead, it needs to be noted that the scope for judicial review in the disciplinary matters is very limited and the Court cannot

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SWP No. 2974/2002

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act as an appellate authority to re-appreciate the evidence and interfere with the decision of the disciplinary authority merely on the ground that another view is also possible on the basis of material available on record. The power of judicial review is limited only to evaluate the decision-making process and to ensure that procedure as prescribed by the Act/rules and the principles of natural justice are followed during the course of disciplinary proceedings. The court also cannot go into the proportionality of the punishment until it shocks the conscience of the court. It would be relevant to take note of the judgment of the Hon’ble Apex Court in SBI v. Ajai Kumar Srivastava , (2021) 2 SCC 612, the relevant paras are extracted as under:

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“24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.

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25. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the court is to examine and determine:

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( i ) whether the enquiry was held by the competent authority;

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( ii ) whether rules of natural justice are complied with;

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( iii ) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.

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28. The constitutional court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with

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objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.”

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Now keeping the above principles in mind, this Court would examine

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the contentions raised by the deceased petitioner.

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Whether there has been any violation of the provisions of the BSF Act and Rules framed thereunder, during the course of the proceedings?

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The charge sheet in terms of rule 44 of the Rules, as provided in Appendix-VI

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was prepared against the petitioner for commission of offence under section

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30(b) of BSF Act and the same is reproduced as under:

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“In that he at Bn Samba,(J&K) while performing the duties of unit Q/Clerk dishonestly misappropriated a sum of Rs. 78004.48 collected/received from various Coys on a/c casual diet charge of ration on various dates during the year 96-97, the property of the Government.”

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The charge was read over to the petitioner on 19.12.1999 by the respondent No. 5 and the respondent No.5 ordered the preparation of record of evidence by Sh. B.S Rana AC. The Recording Officer recorded the statements of eight witnesses and the petitioner was afforded an opportunity to crossexamine the witnesses. The petitioner did not choose to cross-examine any witness. After the witnesses were examined, the deceased petitioner was cautioned in terms of Rule 48 (3) and thereafter his statement was recorded. The deceased petitioner examined two witnesses, namely, HC Rajinder Parshad and Subedar J.P Nathani. After the recording of evidence, the Recording Officer gave a certificate in terms of Rule 48 (8). This Court finds that Rule 48 has been complied during the preparation of the Record of Evidence. The record of evidence was forwarded to the Officer who ordered the preparation of record of

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SWP No. 2974/2002

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evidence, who submitted an application in terms of Rule 51-A read with Rule 52, for convening the General Security Force court for the trial of the petitioner. The respondent No. 3 vide order dated 30.10.2001 convened the General Security Force Court comprising of 5 officers and Senior Officer to sit as Presiding Officer. Two members were appointed as waiting members. Law Officer, Officer under Instruction and Prosecutor were also appointed. The petitioner received the charge sheet, convening order and the copy of order of defending officer on 02.11.2001 (Annexure-5 to the reply submitted by the respondents to the writ petition). After satisfying itself with the requirements of Rule 65, the petitioner was called before the Court. Sh. Amitav Roy was prosecutor and Sh. Kulwant Singh was defending officer and both were not legally qualified. The names of the Presiding officer and the members of the court were read over in the hearing of the petitioner. In response to the question by the Presiding Officer to the petitioner in respect of his objection for his trial by the Presiding Officer or by any of the officers, the petitioner did not object to any of the members of the court. It was done to ensure the compliance of Rule 66. The provisions of Rules 67 and 68 were also complied as the Presiding Officer, the members, and the officer under instructions were duly affirmed. The petitioner reported no objection to the Shorthand writer. Rule 69 also stands complied with. Thereafter, in compliance to Rule 71, the charge sheet was read over by the law Officer to the petitioner and was asked whether he was guilty or not guilty of the charge which he had heard. He replied- Guilty. As the petitioner had pleaded guilty to the charge, in compliance to Rule 78, before the Court accepted the plea, the Law Officer explained to the petitioner about the nature of

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SWP No. 2974/2002

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charge and general effect of his plea and the difference and procedure when the accused pleads guilty and when he does not plead guilty to the charge and ascertained whether the petitioner had understood the same as explained to him in English as well as in Hindi. The petitioner was again read over the charge and he still pleaded guilty to the charge. Thereafter the court decided to accept the plea of guilt by the petitioner and recorded its finding. The finding of the court was read. The record of evidence was also read by the Law officer. It was done to ensure the compliance of Rule 81. The petitioner was asked as to whether he wished to call any witness as to the character but he replied in negative. One witness was examined in respect of the previous convictions and the deceased petitioner was afforded an opportunity to cross-examine the said witness but he did not choose to cross-examine. Thereafter the court was closed for consideration of sentence. The Court on 07.11.2001 sentenced the deceased petitioner as under:

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a) To forfeit 15 years of service for the purpose of promotion and;

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b) To forfeit 10 years of service for the purpose of pension and;

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c) to be severely reprimanded.

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The sentence was confirmed by the respondent No. 3 on 26.11.2001.

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The contentions of the petitioner that the deceased petitioner did not plead guilty, was not provided with the record of evidence as well as the Defending Officer are mis-conceived. This court has examined the record of the proceedings and this court does not find any infraction of the procedure

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SWP No. 2974/2002

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prescribed by the BSF Rules. The deceased petitioner was granted full opportunity to defend himself in accordance with Rules. It was also contended by the learned Senior counsel for the petitioners that the petitioner had sought the summoning of three witnesses in defence during the preparation of the record of evidence but only two witnesses Rajinder Parsad and J P Nathani were summoned and the third witness namely HC Ramesh Chand was not summoned. From the minutes of the proceedings during the preparation of record of evidence dated 06.03.2000 it is evident that the petitioner sought examination of two witnesses namely Rajinder Parsad and J P Nathani only, who were examined. No request for the examination of third witness namely HC Ramesh Chand was made by the petitioner. It is mentionable here that the petitioner had signed the said minutes of the proceedings, as such this submission made by learned Senior Counsel is contrary to record and as such is rejected. The contention of the learned Senior Counsel that the petitioner did not plead guilty is also contrary to record as the petitioner pleaded guilty to the charge. In the mercy appeal (Annexure-D to the writ petition) also, the petitioner pleaded guilty. The relevant portion is extracted as under:

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“-----I made a lapse to refund the money received on account of casual diet charges due to ignorance of clear instructions and remain with me in office almirah. So the lapse and the charge I accepted greatly in the court---“

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As such, there is no force in the submission made by the learned Senior Counsel that the petitioner did not plead guilty.

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12. Whether the General Security Force Court was not properly convened ?

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SWP No. 2974/2002

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By virtue of section 65 of the BSF Act, a General Security Force Court may be convened by the Central Government or the Director-General or by any officer empowered in this behalf by warrant of the Director-General. It needs to be noted that in terms of Rule 65, the Security Force Court before beginning the trial is required to satisfy itself as to whether the court has been convened in accordance with the Act and the Rules. In this case, the GSFC has been convened by the respondent No.3. In this regard, the respondents have relied upon the warrant dated 27.10.1971 issued by DG BSF whereby IG BSF Rajasthan has been authorised to convene GSFC under section 65 of the BSF Act. It needs to be mentioned that initially there was one IG, BSF for Rajasthan Gujarat Frontier and it was in the year 2004 that two separate Frontiers for Rajasthan and Gujarat were created as is evident from the communication dated 29.07.2004. Since the GSFC has been convened in the present case by the respondent No.3 who was duly authorised in terms of section 65 of the BSF Act, this court does not find any illegality in the convening of the GSFC, as such this contention too is rejected.

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13. Whether the punishments imposed upon the petitioner are disproportionate to the alleged mis-conduct of the petitioner?

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Lastly, it was contended by the learned Senior Counsel that the three punishments imposed upon the petitioner are shockingly dis-proportionate to the alleged mis-conduct of the petitioner, as the petitioner had not mis-appropriated the amount and in fact deposited the same after the instructions were issued to

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the petitioner. The petitioner has been handed over the following three punishments by the respondents:

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(a) Forfeiture of 15 years of service for the purpose of promotion. (b) Forfeiture of 10 years of service for the purpose of pension. (c) Severe Reprimand.

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It is not in dispute that the Union of India has not suffered any financial loss and the alleged amount of misappropriation is Rs. 78,0004.48. The alleged mis-appropriated amount includes 48 paisa as well. The charge against the petitioner was only one and the amount stands deposited by the petitioner. The three punishments for single charge is prima facie, shockingly disproportionate. The petitioner joined the service in the year 1969 and was at the verge of retirement and due to retire on 30.04.2003. Once the 15 years of the service were forfeited for the purpose of promotion, further forfeiture of 10 years of service for purpose of pension is shockingly dis-proportionate to the alleged act of misconduct and would have consequences during the old age of not only the petitioner but also upon the wife of the petitioner, when less income shall be at their disposal after superannuation of the petitioner. In Bhagwan Lal Arya Vs.

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Commissioner of Police Delhi, reported in 2004 AIR (SC) SC 2131 , the Apex Court has held as under:

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“We are of the view that the punishment of dismissal/removal from service can be awarded only for the acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility of complete unfitness for police service. Merely one incident of absence and that too because of bad health and valid and justified grounds/reasons cannot become basis for awarding such a punishment. We are, therefore, of the opinion

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that the decision of the Disciplinary Authority inflicting a penalty of removal from service is ultra vires of Rule 8 (a) and 10 of the Delhi Police (Punishment & Appeals Rules, 1980) and is liable to be set aside. The appellant also does not have any other source of income and will not get any other job at this age and the stigma attached to him on account of the impugned punishment. As a result of not only he but his entire family totally dependant on him will be forced to starve. These are the mitigating circumstances which warrant that the punishment/order of the Disciplinary Authority is to be set aside. Thus, the present one is a case wherein we are satisfied that the punishment of removal from service imposed on the appellant is not only highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Ordinarily we would have set aside the punishment and sent the matter back to the Disciplinary Authority for passing the order of punishment afresh in accordance with law and consistently with the principles laid down in the judgment. However, that would further lengthen the life of litigation. In view of the time already lost, we deem it proper to set aside the punishment of removal from service and instead direct the appellant to be reinstated in service subject to the condition that the period during which the appellant remained absent from duty and the period calculated upto the date on which the appellant reports back to duty pursuant to this judgment shall not be counted as a period spend on duty. The appellant shall not be entitled to any service benefits for this period. Looking at the nature of partial relief allowed hereby to the appellant, it is now not necessary to pass any order of punishment in the departmental proceedings in lieu of the punishment of removal from service which has been set aside. The appellant must report on duty within a period of six weeks from today to take benefit of this judgment.

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15. In S.R. Tewari v. Union of India, (2013) 6 SCC 602, the Hon’ble

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Apex Court has held as under:

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24. The question of interference on the quantum of punishment has been considered by this Court in a catena of judgments and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution. In Ranjit Thakur v. Union of India [ Ranjit Thakur v. Union of India , AIR 1987 SC 2386] , this Court observed as under :

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“ 25. But the sentence has to suit the offence and the offender . It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality , as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an

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outrageous defiance of logic, then the sentence would not be immune from correction .

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27. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.”

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(emphasis supplied)

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In view of above, this Court is of the considered view that the two punishments i.e. forfeiture of 15 years of service for the purpose of promotion and severe reprimand, shall be sufficient punishment for the alleged act of misconduct on the part of the deceased-petitioner. Accordingly, the order of sentence to the extent of forfeiture of 10 years of the service for the purpose of pension of the petitioner and the consequential order No. 35 Bn/Estt/GSFCMSB/2002/42-45 dated 02.01.2002 to the extent of forfeiture of 10 years of the service for the purpose of pension of the petitioner are quashed. The respondents shall refix the pension and pay the arrears to the petitioner within three months from the date the copy of the order is served upon the respondents.

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17. Record be returned to learned CGSC.

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(RAJNESH OSWAL) JUDGE

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Jammu 04.08.2023 Rakesh

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Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No

Kuldeep Kour v. U.O.I and Ors.

Case brief

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Kuldeep Kour v. U.O.I and Ors.

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