- (1.) BY THE COURT : The petitioner was enrolled with Border Security Force on 24.12.1984, and was promoted as L/Naik on 15.3.1993. While posted as "A" Coy 23 Battalion, Border Security Force, he was charged as per Section 20(b) of the Board Security Force Act, 1968 (for short 'the Act of 1968' hereinafter). It was alleged that he used threatening language to his superior officer Subedar Hardev Singh.
(2.) A Summary Security Force Court (hereinafter referred as 'SSFC') assembled on 29.9.2001, the charges were read and explained to the accused-petitioner and in response thereto his answer was recorded in the terms that " No.8400526 4 L/Nk Prithvi Singh, the accused pleads guilty upto the extend that he did abused to No.67511617 Sub Hardev Singh, "Bahenchodh Chugli Karta Hai, Bahenchodh, ise Inspector kisne bana dia" but did not said other words mentioned in the Charge Sheet." As the petitioner pleaded guilty, the provisions as per Rule 142(2) of the Border Security Force Rules were also adhered. The Commandant, 23 Battalion, BSF vide order dated 3.10.2001 found the petitioner guilty for the charge and awarded sentence of dismissal. Relevant part of the order dated 3.10.2001 reads as follow :- "02. The accused pleaded guilty of the charge upto the extend that he did abused No.675116117 Sub Hardev Sigh but did not said words mentioned in the charge sheet. The court having found him guilty, awarded the sentence as under :- "TO BE DISMISSED FROM SERVICE" 03. No.84005264 L/NK Prithvi Singh, 'A' Coy of this Unit is hereby struck of strength of this Unit w.e.f. 01 October 2001 (AN)." The statutory petition against the conviction recorded and sentence awarded by the Commandant after trial by SSFC also came to be rejected on 11.2.2002, hence, this petition for writ is preferred. The submission of learned counsel for the petitioner is having two limbs, first that the petitioner was charged for committing an offence as per Section 20(b) of the Act of 1968, however, the answer given by him to SSFC in no manner amounts to plead guilty of the charge as per Section 20(b) of the Act of 1968. According to learned counsel for the petitioner, the charge under Section 20(b) of the Act of 1968 is relating to use of threatening language to a superior officer, but the answer given by the petitioner nowhere refers any threatening. The second limb of the argument is that if the guilty recorded in any manner establishes misconduct, then too, the sentence given is highly disproportionate to the guilty established. While contesting the arguments advanced by learned counsel for the petitioner, it is submitted by Shri V.K. Mathur, learned counsel for the respondents that the petitioner admittedly abused his superior officer, therefore, in any event it is an offence under Section 20(c), may it not be under Section 20(c), thus, in any case on establishment of commission of an offence under any sub-section of Section 20 penalty of dismissal could have been imposed. While meeting with second argument, it is submitted by learned counsel for the respondents that the Commandant while exercising his statutory authority examined gravity of the offence and then imposed a suitable punishment, that is not required to be interfered by this Court while exercising powers under Article 226 of the Constitution of India. To substantiate the contention reliance is placed upon a judgment of Hon'ble Supreme Court in Union of India & Ors. Vs. Narain Singh, reported in (2002) 5 SCC 11. Heard learned counsel for the parties. The first contention advanced during the course of arguments is not much pressed by learned counsel for the petitioner. I am also not impressed with the same, as the misconduct as accepted is nothing but use of insubordinate language, a misconduct as per section 20(c) of the Act of 1968. Main emphasis of the counsel is on quantum of punishment awarded. It is not in dispute that the petitioner remained in service of Border Security Force for about 17 years with unblemished service record, and a promotion was given to him as L/Naik in the year 1993. In the year 2001, at the time of taking place of the incident in question, the petitioner was posted in Jammu & Kashmir and was facing quite odious climate conditions.
(3.) AS per Section 20 of the Act of 1968, any person subject to the Act aforesaid while on active duty commits any of the offences prescribed therein, then on conviction by Security Force Court, such person is liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as provided in the Act itself. As per Section 49 of the Act of 1968, the Security Force Court may on convicting a person subject to the Act of 1968 for any of the offences specified to Section 14 to 45 award either the particular punishment with which the offence is stated in the said sections to be punishable or, in lieu thereof, any one of the punishments lower in the scale set out in section 48 regard being had to the nature and degree of the offence. Section 48 of the Act of 1968 provides several punishments as under :- "Section 48. (1)- Punishment may be inflicted in respect of offences committed by persons subject to this Act and convicted by Security Force Courts according to the scale following, that is to say :- (a)- death; (b)- Imprisonment which may be for the term of life or any other lesser term but excluding imprisonment for a term not exceeding three months in Force custody, (c)- dismissal from the service; (d)- imprisonment for a term not exceeding three months in Force custody; (e)- reduction to the ranks or to a lower rank or grade or place in this list of their rank in the case of an under-officer; (f)- forfeiture of seniority of rank and forfeiture of all or any part of the service for the purpose of promotion; (g)- forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose; (h)- fine, in respect of civil offences; (i)- severe reprimand or reprimand except in the case of persons below the rank of an under officer; (j)- forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active duty; (k)- forfeiture in the case of person sentenced to dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such dismissal; BSF ACT 27 (1)- stoppage of pay and allowances until any proved loss or damage occasioned by the offence for which he is convicted is made good. (2)- Each of the punishments specified in subsection (1) shall be deemed to be inferior in degree to every punishment preceding it in the above scale." In the case in hand, the SSFC instead of awarding the sentence of imprisonment as prescribed under Section 20 itself, choose to impose the penalty of dismissal from service. The dismissal from service is a severe civil punishment as it not only terminate a person from service, but also makes him / her disentitled for any other public employment. It is further having serious consequence, not only to the delinquent but to his family and relatives too. The Hon'ble Supreme Court, looking to severability of this punishment, on several occasions termed it as civil death. ;