Partly allowed

Binilkumar v. Union of India

Kerala HC8 Mar 2018WP(C)/451/2014

Case brief

AI extract

What is this about?

This Court held that dismissal of a constable suffering from seizure disorder is disproportionate punishment. The Court directed quashing of the dismissal orders and reduction of punishment instead, giving direction for benefits.

What did the court decide?

Ordered that Ext.P17 and Ext.P21 be quashed and respondents awarded directions to conduct fresh proceedings reducing punishment in light of medical condition. Benefits to be paid within a month.

Binilkumar Vs Union of India — Pension and Retirement Benefits | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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THURSDAY, THE 8TH DAY OF MARCH 2018 / 17TH PHALGUNA, 1939

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WP(C).No. 451 of 2014

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PETITIONER:

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BINIL KUMAR, S/O.LATE SUNDARESAN, (CONSTABLE NO.89200004 (DISMISSED), G.COY OF 97 BN.B.S.F., BIHAR), NOW AT DABLA P.O., JAISALMER, RAJASTHAN, PIN-345 002. RESIDING AT KALAKKATTU HOUSE, ATHINADU NORTH P.O., KARUNAGAPPALLY, KOLLAM DISTRICT, KERALA, PIN-690 542.

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BY ADVS.SRI.SHABU SREEDHARAN

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SMT.RESHMA ABDUL RASHEED

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RESPONDENT(S):

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1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI-110 006.

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2. THE DIRECTOR GENERAL, BORDER SECURITY FORCE, 2ND FLOOR, BLOCK NO.10, CGO COMPLEX, LODHI ROAD, NEW DELHI-110 003.

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3. THE DEPUTY INSPECTOR GENERAL, SECTOR HEAD QUARTERS, B.S.F.,KRISHANGANJ, PANJIPARA P.O., UTHAR DINAJPUR, WEST BENGAL-733 208.

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4. THE COMMANDANT, 97 BN, B.S.F., (KHAGRA CAMP, KISHANGANJ, BIHAR), NOW AT DABLA P.O., JAISALMER, RAJASTHAN, PIN-345 002.

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R1 TO R4 BY SRI.N.NAGARESH,ASSISTANT SOLICITOR GENERAL OF INDIA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-03-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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24/3/2018

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WP(C).No. 451 of 2014 (F)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1: COPY OF THE MEDICAL CERTIFICATES IN RESPECT OF THE TREATMENT UNDERGONE BY THE PETITIONER FOR HIS AILMENT.

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P2: COPY OF THE ORDER DATED 15.3.2005 ISSUED BY THE OFFICIATING COMMANDANT.

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P3: COPY OF THE ORDER DATED 18.3.2005 ISSUED BY THE OFFICIATING COMMANDANT.

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P4: COPY OF THE ORDER DATED 21.3.2005 ISSUED BY THE 2ND RESPONDENT.

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P5: COPY OF THE MEMORANDUM OF APPEAL DATED 18.4.2005.

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P6: COPY OF THE JUDGMENT IN WPC.22140/2005 DATED 26.7.2005 PASSED BY THE HON'BLE HIGH COURT OF KERALA.

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P7: COPY OF THE ORDER DATED 28.10.2005 ISSUED BY THE 2ND RESPONDENT.

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P8: COPY OF THE JUDGMENT IN WPC.NO.629/2006 DATED 5.9.2012 PASSED BY THE HON'BLE HIGH COURT OF KERALA.

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P9: COPY OF THE ORDER DATED 25.11.2012 ISSUED BY THE 4TH RESPONDENT.

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P10: COPY OF THE JUDGMENT IN CONT.CASE (C)NO.400/2013 DATED 10.4.2013 PASSED BY THE HON'BLE HIGH COURT OF KERALA.

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P11: COPY OF THE ORDER DATED 29.4.2013 ISSUED BY THE 4TH RESPONDENT.

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P12: COPY OF THE ORDER DATED 30.4.2013 ISSUED BY THE 4TH RESPONDENT.

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P13: COPY OF THE OFFICE ORDER DATED 30.4.2013 ISSUED BY THE 4TH RESPONDENT.

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P14: COPY OF THE ORDER DATED 30.4.2013 ISSUED BY THE 4TH RESPONDENT.

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P15: COPY OF THE OFFICE ORDER DATED 30.4.2013 ISSUED BY THE 4TH RESPONDENT.

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P16: COPY OF THE OFFICE ORDER DATED 1.5.2013 ISSUED BY THE 4TH RESPONDENT.

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P17: COPY OF THE OFFICE ORDER DATED 17.6.2013 ISSUED BY THE 4TH RESPONDENT.

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P18: COPY OF THE JUDGMENT IN WPC NO.17224/2013 DATED 19.7.2013 PASSED BY THE HON'BLE HIGH COURT OF KERALA.

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2/-

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WP(C).No. 451 of 2014 (F)

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P19: COPY OF THE MEMORANDUM OF APPEAL DATED 11.7.2013.

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P20: COPY OF THE JUDGMENT IN WPC NO.26412/2013 DATED 29.10.2013 PASSED BY THE HON'BLE HIGH COURT OF KERALA.

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P21: COPY OF THE ORDER DATED 24.12.2013 ISSUED BY THE 2ND RESPONDENT.

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RESPONDENT'S EXHIBITS:

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R1(a): TRUE	COPY	OF THE PROCEE	DINGS DATED 17/03/2005.
R1(b): TRUE	COPY	OF THE PROCEE	DINGS DATED 15/03/2005
R1(c): TRUE	COPY	OF THE LETTER	DATED 18/03/2005
R1(d): TRUE	COPY	OF THE ORDER	DATED 19/03/2005
R1(e): TRUE	COPY	OF THE LETTER	DATED 18/0/2005
R1(f): TRUE	COPY	OF THE ORDER	DATED 28/10/2005
R1(g): TRUE	COPY	OF THE ORDER	DATED 25/11/2012
R1(h): TRUE	COPY	OF THE LETTER	DATED 19/10/2012
R1(i): TRUE	COPY	OF THE LETTER	DATED 09/11/2012
R1(j): TRUE	COPY	OF THE LETTER	DATED 14/03/2013
R1(k): TRUE	COPY	OF THE LETTER	DATED 23/03/2013
R1(l): TRUE	COPY	OF THE LETTER	DATED 26/11/2012
R1(m): TRUE	COPY	OF THE LETTER	DATED 27/03/2013
R1(n): TRUE	COPY	OF THE PROCEE	DINGS DATED 30/04/2013
R1(o): TRUE	COPY	OF THE ORDER	DATED 30/04/2013
R1(p): TRUE	COPY	OF THE APPLIC	ATION DATED 29/04/2013
R1(q): TRUE TRANS	COPY LATI	OF THE LETTER ON	DATED 30/04/2013 WITH ENGLISH
R1(r): TRUE	COPY	OF THE LETTER	DATED 30/04/2013
R1(s): TRUE	COPY	OF THE LETTER	DATED 30/04/2013
R1(t): TRUE	COPY	OF THE ORDER	DATED 30/4/2013.

/TRUE COPY/

P.A.TO JUDGE

sts/24/3/2018

P.V.ASHA, J.

W.P.(C) No.451 of 2014

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Dated this the 8^th day of March, 2018

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JUDGMENT

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The petitioner, who was a Constable working in the Boarder Security Force, was dismissed from service after Summary Security Force Court (SSFC) proceedings. The appeal filed against the dismissal was also rejected. This writ petition is filed challenging Ext.P17 order of dismissal and Ext.P21 order passed in appeal.

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The petitioner joined the Boarder Security Force (BSF) in the

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year 1989 as a Constable. He was suffering from seizure disorder (epilepsy). Ext.P1 medical certificate issued on 28.6.2002 would show that the petitioner was suffering from seizure disorder. It is pointed out that he was medically de-categorised for the very same reason. He was taking medicine for it twice daily. Whileso, a complaint was preferred against him by Dr.P.J.Ravi Reddy, CMO 97 BN, BSF alleging that on 5.3.2005 he entered the CMO's office violently in an undisciplined manner. Though he was asked to sit outside and he was sent back he rushed into the room of Dr.Reddy and slapped on his face and threatened to kill him; pursuant to the complaint, petitioner was arrested on 15.3.2005. ROE proceedings were prepared against the petitioner, alleging that petitioner assaulted his superior officer; he was charged under section 20(a) of BSF Act, 1968. The 2^nd charge was

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under section 20(b) of the Act for using threatening language to his superior officer. It was alleged that when the petitioner was asked to sit outside, he threatened to kill Dr.Reddy. The ROE proceedings were held on 17.3.2005. The petitioner states that he could not cross examine any of the witnesses. He signed some papers tendered to him, in the subconscious mind. Thereafter as per order dated 18.3.2005 he was informed that the SSFC would be held on 21.3.2005 at the office of the Commandant. The petitioner sought time for consulting an Advocate in order to furnish his defence statement. His request was rejected and as per order dated 21.3.2005 he was dismissed from service. As against that dismissal petitioner submitted Ext.P5 appeal stating that he was not in a position to understand what he was doing.

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He approached this Court in WP(C) No.22140 of 2005 which was disposed of by Ext.P6 judgment directing the Deputy Inspector General to pass orders in accordance with law. The appeal preferred by he petitioner was rejected as per Ext.P7 order. In the appellate order also, the appellate authority found that as per the medical documents petitioner was suffering from seizure disorder and was under medication. It was stated that he was performing light duties and was never found in a state of unconscious mind. The appellate

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authority found that the contentions of the petitioner that rule 45 and 48 of BSF Rules were not complied with, were baseless referring to the statement of the witnesses. The appellate authority took note of the fact that the petitioner has 15 years, 9 months and 15 days of service on the day of his trial and he had seven rewards to his credit. It is also found that he was punished earlier twice with 7 days RI in force custody for disobedience and 14 days RI in force custody for absenting without leave for 62 days. The appellate authority found that using criminal force on a superior officer and threatening a superior officer to kill him in a disciplined Force like BSF are of serious nature and unacceptable.

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Thereafter the petitioner filed WP(C) No.629 of 2006 challenging the order of dismissal and the appellate order. This Court directed production of the records. After perusal of the records this Court found that the petitioner was not given an opportunity to submit his explanation to the charges and it was found that the petitioner, who was admittedly in the custody of the officer of the BSF and who was placed in the lower medical category and was allowed light duty as he was an epileptic person, should have been granted an opportunity to defend his case by filing a written explanation to the charges. The charge was explained to the petitioner on 21.3.2005 ad

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final order was passed on the same day after examining certain witnesses. Therefore this Court found that the petitioner should have been given an opportunity to defend his case by filing a written explanation. In Ext.P8 judgment, this court found that the conclusion reached by the enquiry officer was in violation of the mandatory provisions under rule 108 and 109 of the BSF Rules. The order of dismissal as well as appellate order were set aside. This Court directed that the petitioner should appear before the 4^th respondent on 10.10.2012, on which day he shall be referred to medical board constituted by the 4^th respondent; in case he was found fit he should be given duty, as advised by the medical board. The respondents were directed to conduct a denovo enquiry. It was further directed that the petitioner would be entitled to continuity of service for the intervening period from the date of dismissal to the date of reporting before the Commandant ie.10.10.2012 for calculating continuity of service.

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The petitioner submits that subsequent to the judgment, he appeared before the 4^th respondent on 09.10.2012 and he was reinstated on that day. But he was taken to the Medical Board only on 26.11.2012, as per Ext P9 order; but he was kept in darkness about the results. The respondents did not conduct the disciplinary action

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also, despite the direction in the judgment to complete the same within three months. After the filing of a Contempt Case and its disposal as per Ext.P10 judgment, on 10.04.2013, petitioner received Ext.P11 letter dated 29.4.2013 by which 4^th respondent informed him that SSFC trial against him would be conducted on 1.5.2013 at Jaisalmer, 97 Battalion BSF in the office of the Commandant. He was directed to intimate the “friend of accused” to defend the trial as per BSF Act and Rules. It was stated that he was given an opportunity to nominate any person to assist him in the trial including a legal practitioner at his expense. He was asked to submit the list of defense witnesses. The petitioner thereupon, as per his representation dated 30.04.2013, requested the 4^th respondent to conduct the SSFC in any unit in Kerala and to permit him to engage a lawyer. But as per Ext.P12 letter dated 30.04.2013, petitioner was informed that his request cannot be acceded to and the trial would be conducted at Unit HQ (97 Bn BSF, Dabla, Jailsalmer). He was directed to engage a lawyer at his own expense and to appear for the enquiry in time. As per another letter Ext.P14 dated 30.4.2013 the petitioner was informed that the trial would be conducted on 2.5.2013. The charge sheet was furnished to him directing him to produce defence witness by 1.5.2013. By yet another letter of the same day, the 4^th

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W.P.(C) No.451/14

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respondent nominated one Sri.Kishan Singh Meena, Deputy Commandant of his unit as “Friend of the Accused” in the SSF, against petitioner. By the very same letter the 4^th respondent directed Sri.Vishnu Chand, SI to attend the trial. Thereafter that SI was substituted by another one. Petitioner submits that the SSFC was held on 02.05.2013 and 06.06.2013, namesake and thereafter Ext.P17 order was issued, stating that the court had found the petitioner guilty of both the charges and hence sentenced him 'to be dismissed from service'. Petitioner thereupon filed Ext.P19 appeal which was rejected as per Ext.P21 order, upholding Ext.P17 order.

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Petitioner submits that the respondents did not conduct any denovo enquiry, despite the direction in the judgment; he repeated the earlier proceedings and imposed the extreme penalty in an arbitrary manner, with haste without giving sufficient opportunities to him, in violation of Rules 45, 48, 83, 93, 157 of BSF Rules, 1968. It is stated that though the petitioner was permitted to engage a lawyer of his choice, that permission was by letter dated 29.04.2013 fixing the trial on 01.05.2013 and as soon as petitioner's letter dated 30.04.2013 requesting to conduct the trial at Kerala to enable him to engage a lawyer from Kerala was received, the 4^th respondent had on the same day engaged a defence assistant of his choice to defend the

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petitioner in the trial to be held on 01/02.05.2013. Petitioner submits that he could not even meet such a “friend of the accused” and thus a farce of a trial was held, and no reason is stated for arriving at a conclusion to dismiss the petitioner. It is claimed that if at all the allegation was correct, the 4^th respondent ought to have taken into account the illness of the petitioner and rendered a finding in tune with Section 99 of the BSF Act, when the respondents do not have a case that petitioner had any animosity with Dr.Reddy.

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The respondents have filed counter affidavit justifying the impugned order in tune with the contents therein. It is stated that petitioner was referred to the Medical Board as directed by this court, which opined that he was suffering from Seizure Disorder (absence attacks) & psychosis and was categorised in S2H1A1P3(P)E1. It is stated that as per Ext.R1(g) order issued on 26.11.2012, the 4^th respondent had ordered to treat the period from 21.03.2005 to 08.10.2012 as duty for the purpose of qualifying service and would not be entitled to backwages and no leave would be accumulated to his leave account for the period of his absence.

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Thereafter letter dated 29.04.2013 was issued fixing the trial on 01.05.2013 and permitting him to engage a legal practitioner and to furnish the name of the friend of the accused by the next day, 30^th

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April. By Ext.R1(r) letter dated 30.4.2013 petitioner was asked to intimate how many days was required for him for hiring a legal practitioner of his choice at his expense, by 1^st May 2013. However it is stated that as per Ext.R1(q) letter, on the very same day, petitioner had given in writing that he did not want any officer of BSF to be appointed as Friend of the Accused in the trial and therefore the 4^th respondent as per Ext.R1(t) letter dated 30.04.2013 nominated Sri.Kishan Singh Meena as friend of the accused in the trial against petitioner.

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According to the respondents the ROE proceedings were held properly. According to them the Commandant heard the petitioner on 25.03.2013 on the charges under Section 20(a) and (b) of BSF Act; two witnesses were examined and the written report of the complainant Dr.Reddy was read over in the inquiry. it is stated that petitioner was given opportunity to cross examine. In the defense statement petitioner stated that being an epilepsy patient he did not know whether he did such act or not; thereafter Sri.K.S. Rana, Deputy Commandant was ordered to prepare ROE; the Recording Officer could not procure the presence of 3^rd witness, though Exts.R1(h) to R1(m) letters were issued to him; therefore his earlier statement in the earlier trial was treated as final, as he was not an eye witness. It is

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stated that the petitioner had cross examined the 3^rd witness Sajjan Singh and 4^th witness Dr.P.J Reddy and therefore ROE was prepared in a accordance with rules; it is stated that ROE proceedings and charge sheet were handed over to petitioner on 30.04.2013; it is further stated that petitioner requested to conduct the trial in any unit in Kerala, which was not acceded to; in the interest of justice he was given the services of a Deputy Commandant to assist him in his defence and SSFC was conducted from 02.05.2013 to 17.06.2013. It is stated that based on evidence on record he was found guilty of the charges and after recording his previous conviction and character, the court again awarded the sentence “to be dismissed from service” on 17.06.2013. It is stated that on 23.12.1991, petitioner was awarded a punishment of 7 days' rigorous imprisonment under Section 21(1) of BSF Act for willful disobedience of superior with forfeiture of pay for 7 days and on 10.06.1998, he was awarded a punishment of 14 days' rigorous imprisonment for absenting himself without leave for 62 days treating the period as dies non, under Section 19(a) of BSF Act. It is therefore stated that the service record of petitioner is not unblemished. It is also their case that his disease was not of such a nature that he would act violently as done against Dr.Reddy and therefore he cannot be given any relaxation based on it. It is stated

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that trial was conducted after his fitness was checked by medical officer. According to the respondents charges of using criminal force against a superior officer and threatening to kill him are of serious nature.

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On a consideration of the pleadings and contentions, it is seen that petitioner was admittedly a person who was under treatment for seizure disorder. Respondents have stated that he was medically decategorised on account of the very same reason at least from 07.08.2001 onwards and was assigned light duties without use of weapons. That itself would indicate the opinion as to the mental stability of the petitioner. The incident occurred at a time when the petitioner was visiting the Doctor. In paragraph 35 of the counter affidavit it is stated that petitioner did not have any animosity against Dr. Reddy, but he acted in a very unusual and violated manner slapping on the left side of the face of the Doctor and threatened to kill him. It is also the case of the respondents that considering the disease of petitioner, he was entrusted with light duties without weapon. From that itself it is evident that the respondents were apprehending violent actions at the instance of petitioner because of his disease.

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The case of the petitioner is that the entire proceedings were

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held without giving him effective opportunity by issuing notices on 29.04.2013 and 30.04.2013 fixing the trial on 01.05.2013 and 02.05.2013 without giving time to engage a legal practitioner. It is also seen that the Recording Officer could not procure the presence of Dr.Reddy, the complainant as well as that of Sri.Wilson John who was stated to be an essential eye witness in the letters Exts.R1(j) to R1(m) repeatedly sent to him directing him to attend the trial and the ROE itself was ordered to be prepared relying on the statement of Dr.Reddy in the previous enquiry.

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Even assuming that the de-novo enquiry was conducted after affording opportunity to petitioner as claimed by the respondents, it was incumbent on the respondents to consider the mental state of the petitioner, before imposing punishment. Admittedly he was a medically decategorised, person. Therefore I am of the view that punishment of dismissal awarded to the petitioner is disproportionate. Respondents ought to have considered the mental state of the petitioner who was suffering from such a disease. It is pointed out that from 2001 onwards he was placed under low medical category on account of seizure disorder. It is quite probable that the effect of the disease varies from time to time and person to person. In such circumstances, it was a fit case where respondents ought to have

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considered these aspects before awarding punishment on the petitioner.

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It is settled law that the court under Article 226 shall not interfere with the punishment awarded to the delinquent government servant except when it is shocking the conscience of the court. The petitioner was having more than 23 years service at the time when he was sentenced. He was having more than 15 years service when the incident occurred. In the peculiar circumstances of the case the respondents ought to have considered the question of sentencing him with a punishment of compulsory retirement.

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As a further direction to conduct another set of proceedings at this distance of time would not be proper, I direct the respondent to reduce the punishment in the light of the aforesaid observations. Exts.P17 and P21 are quashed to enable the respondents to pass orders accordingly within a period of two months from the date of receipt of a copy of the judgment. Benefits due to the petitioner shall be paid within another month.

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sd/-

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P.V.ASHA JUDGE

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rkc

Binilkumar v. Union of India

Case brief

What is this about?

What did the court decide?

Binilkumar v. Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

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