Calcutta High Court (Appellete Side)
Union Of India & Ors vs Suvasis Dey on 9 January, 2025
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Tapabrata Chakraborty
&
The Hon'ble Justice Partha Sarathi Chatterjee
MAT 933 of 2023
Union of India & Ors.
-Versus-
Suvasis Dey
For the Appellants in : Mr. Rajdeep Majumder,
[MAT 933 of 2023] Mr. Anirban Mitra,
Mr. Moyukh Mukherjee.
For the Respondent in : Mr. Swarnandu Ghosh,
[MAT 933 of 2023] Mr. Bidhayak Lahiri,
Ms. Bhaswati Lahiri.
Hearing is concluded on : 11th December, 2024.
Judgment On : 9th January, 2025.
Tapabrata Chakraborty, J.
1. The present appeal has been preferred by Union of India and its
functionaries challenging the judgment dated 24.11.2022 delivered by the
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learned Single Judge in the writ petition preferred by one Suvasis Dey
(hereinafter referred to as Suvasis) being WPA 2074 of 2008.
2. The facts in brief are as follows. Suvasis was initially appointed to the
post of Constable under the 46 battalion (in short, 46 Bn) of the Border
Security Force (hereinafter referred to as BSF) on 18.02.2003. While he was
working in the said post, the Commandant of the 46 Bn being the
respondent no.6/ the appellant no.5 herein suspended Suvasis vide memo
dated 10.06.2007 in contemplation of a disciplinary proceeding. Thereafter,
pursuant to a memo dated 23.07.2007 issued by the appellant no.5, the
Record of Evidence (in short ROE) proceedings were initiated. The ROE was
prepared upon hearing Suvasis and granting him opportunity to cross-
examine the prosecution witnesses and to produce defence witnesses. Upon
conclusion of the said proceedings, the copies of the same were served upon
Suvasis vide memo dated 22.09.2007 issued by the appellant no.5.
Thereafter vide memo dated 22.09.2007, the appellant no.5 took a decision
to try Suvasis by holding a Summary Security Force Court (in short SSFC).
Suvasis was thereafter tried by SSFC and vide memo dated 24.09.2007, the
said appellant no.5 imposed a punishment of dismissal from service and
Suvasis was struck off from the strength of 46 Bn. Aggrieved by the said
order, Suvasis submitted a statutory petition on 08.10.2007 but the same
was dismissed by an order dated 31.12.2007. Challenging inter alia the order
of the appellate authority, Suvasis preferred the writ petition in the year
2008 and the same was disposed of about 14 years thereafter by the
judgment impugned in the present appeal.
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3. Records further reveal that the stay application filed in connection with
the appeal was disposed of by an order dated 01.04.2024. The operative part
of the said order runs as follows:
‘Prima facie, we do not find any reason to interfere with the order passed
by the learned Single Judge. However, the appellants upon depositing a sum
of Rs. 18 lacs with the learned Registrar General within a period of three
weeks from date shall be entitled to stay of operation of the impugned order
till the disposal of the appeal. There shall be an unconditional stay of
operation of the impugned order for a period of three weeks However, in the
event the aforesaid sum is deposited in the meantime, the stay shall continue
till the disposal of the appeal’.
Pursuant to such direction the amount of Rs. 18 lacs was deposited by the
appellants.
4. Drawing our attention to the definition of Commandant as provided
under Section 2 (f), Section 70 of the BSF Act and Rule 51 (3) (iii) of the
Border Security Force Rules, 1969 (in short, BSF Rules), Mr. Majumder, the
learned Assistant Additional Solicitor General submits the Commandant of
the unit is the sole person competent to constitute and conduct the SSFC.
Neither in the statutory petition nor in the writ petition it was alleged that
the Commandant of the unit had no jurisdiction to issue the chargesheet or
to hold the SSFC and as such the impugned judgment was delivered
considering an issue alien to the pleadings. Such argument, as advanced,
was glossed by the learned Single Judge and no finding was returned on the
same.
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5. He argues that no prejudice had been caused to Suvasis since the
Commandant of Suvasis’s unit issued the chargesheet and held the SSFC. It
is not a case that the Suvasis was denied cross-examination of the witnesses
or was prevented from citing his defence witnesses. In the said conspectus,
there had been no violation of the principles of natural justice.
6. Placing reliance upon an unreported judgment delivered by the Hon’ble
Supreme Court in case of Union of India versus Shri Dickson Chand Marak,
Mr. Majumder argues that the said judgment is clearly applicable to the
facts of the present case. In the said judgment the question involved was as
to ‘whether the Commanding Officer of the respondent suffered from any
disability or disqualification from trying the respondent as Summary Court as
he had signed and issued the charge sheet’. The said question was answered
in the negative. In view thereof, the finding of the learned Single Judge to the
effect that ‘an officer who issued a chargesheet against a proposed delinquent
cannot act as the Court where such charge is to be proved’, is not sustainable.
A similar issue was also considered by the Hon’ble Delhi High Court in the
case of Deepak versus Director General of Border Security Force and Ors.,
reported in (2023) SCC OnLine Del 7980 and a finding was returned that the
Commandant of the unit was empowered to issue the chargesheet and to
preside over the trial.
7. He argues that the allegations levelled by Suvasis as regards denial of
sufficient time to prepare his defence and to face the SSFC was rightly
discounted by the learned Single Judge observing inter alia that Suvasis was
granted sufficient opportunity to cross-examine the witnesses at the ROE
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and the provisions of Rules 48 and 63 of the BSF Rules were scrupulously
followed. The allegation that sufficient reasons were not disclosed towards
imposition of the penalty of dismissal of service was also discounted placing
reliance upon the judgment delivered by the Hon’ble Supreme Court in the
case of Union of India Vs. Dinesh Kumar, reported in (2010) 3 SCC 161.
8. He argues that the appellant no.5 had every jurisdiction to issue the
charge sheet and to preside over the trail. Merely because the charge sheet
had been signed by the Commandant, would not make him an interested
party moreso when he was not even a witness to the alleged incident.
Reliance has also been placed upon a judgment delivered by a learned Single
Judge of this Court in the case of Anil Kumar Tiwari Vs. The Union of India &
Ors., reported in 2019 SCC Online Cal 2339.
9. Per contra Mr. Ghosh, learned advocate appearing for Suvasis denies
and disputes the contention of Mr. Majumder and submits that there is no
specific mandate in the statute that only the Commandant of a particular
unit has the jurisdiction to conduct a disciplinary proceeding or to hold the
SSFC. In support of such contention, he has drawn our attention to the
opening words ‘unless the context otherwise requires’ in Section 2(1) and the
provisions of Section 64, 68, 69 and 70 of the BSF Act.
10. Drawing our attention to Rule 46 of the BSF Rules, he argues that the
Commandant ‘otherwise personally interested in the case’ shall not deal with
the same. Herein the Commandant of 46Bn having issued the chargesheet
and having acted as the Interpreter in the proceedings, ought not to have
conducted the SSFC. In the said conspectus, it cannot be ruled out that the
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Commandant of the unit was otherwise personally interested in the case and
as such the learned Single Judge rightly observed that ‘such procedure
would strike a death knell to the basic principles of natural justice’ and that
‘holding of the Summary Security Force Court by the same officer who had
issued the charge-sheet is patently erroneous and is antithetic to the basic
tenets of natural justice such that it shocks the conscience of this Court’. Even
if a power is given to a body without specifying that the rules of natural
justice should be observed in exercising it, the nature of the power would
call for its observance. In support of such contention reliance has been
placed upon the judgment delivered in the case of Mohinder Singh Gill versus
Chief Election Commissionaire, New Delhi and Ors., reported in 1978 (1) SCC
405.
11. Placing reliance upon the judgment delivered in the case of Union of
India & Ors. versus B.N. Jha, reported in (2003) 4 SCC 731, he argues that
the duty to act fairly is the theme of the principles of natural justice. In the
present case the appellant no.5 issued the charge sheet and conducted the
SSFC. He was thus in a position where bias may be assumed. Such
assumption applies to all tribunals and bodies which are given jurisdiction
to determine judicially the rights of the parties. In such circumstances, the
appellant no.5 ought to have recused himself from conducting the SSFC.
12. He contends that any person who has a personal stake in an inquiry
must keep himself aloof from the conduct of the inquiry. The order of
dismissal stands vitiated as the person who issued the chargesheet was
deciding as to whether he has rightly issued the charge sheet imputing
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misconduct upon the employee or as to whether the employee was not guilty
of the misconduct alleged. In support of such argument, reliance has been
placed upon the judgment delivered by the Hon’ble Supreme Court in the
case of Arjun Chaubey Vs. Union of India & Ors., reported in AIR 1984 SC
1386. Such legal proposition has not been dealt with in Union of India Vs.
Shri Dickson Chand Marak (supra) and as such the same cannot be
construed as a precedent in the facts of this case, moreso when the said
judgment was delivered without considering the proposition of law laid down
in the cases of Mohinder Singh Gill (supra) and Union of India & Ors. versus
B.N. Jha (supra).
13. We have heard the learned advocates appearing for the parties at
length and we have given our anxious consideration to the facts and
circumstances of the case.
14. The submissions of Mr. Ghosh primarily flag the following issues.
First, the principles of natural justice have been a casualty in the
proceedings. Second, the appellant no.5 has disclosed a predisposition
against the appellants almost bordering on a real likelihood of bias. Law is
settled on the point that natural justice is not a straightjacket formula.
Natural justice should not be defined in a doctrinaire manner or method and
compliance with its principles shall depend on the facts and circumstances
of each case.
15. In the writ petition no plea was set up that the appellant no.5 was not
legally competent to preside over SSFC. In the proceeding there was no
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allegation of personal bias or a legal likelihood of bias against the appellant
no.5. At no stage of the proceeding or in the statutory appeal it was urged by
Suvasis that he should be tried by a Commandant of any other unit. The
appellant no.5 was also not a witness to the alleged incident and as such it
cannot be urged that Suvasis was prejudiced as the said appellant no.5 had
conducted the SSFC. It is neither a General Security Force Court nor a Petty
Security Force Court where Suvasis’s case was tried and decided. In the
present case the SSFC had been convened by the Commanding Officer
according to the provisions of the BSF Act.
16. A perusal of the impugned judgment would clearly reveal that the
Suvasis’s allegation as regards denial of sufficient time to prepare his
defence, failure on the part of the authorities to prove offer and acceptance of
bribe, non-disclosure of reasons in the order imposing penalty and that the
SSFC had not properly appreciated the evidence, were all discounted by the
learned single Judge. Indisputably, such findings have not been challenged
by Suvasis.
17. The present appeal is thus restricted to the sole issue as to whether
the appellant no.5 having issued the chargesheet could have tried the writ
petitioner as a Summary Court. The said issue is no longer res-integra and
has been decided by the Hon’ble Supreme Court in the case of Union of India
Vs. Shri Dickson Chand Marak (supra). In the said case the Hon’ble Supreme
Court was deciding an appeal preferred against a judgment passed by the
Division Bench of the High Court dismissing a writ appeal against an order
passed by the learned Single Bench by which the writ petition was allowed
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and the order of dismissal was set aside. The respondent in the said appeal
was appointed as a constable in BSF. Alleging possession of assets
disproportionate to his known sources of income, a chargesheet was issued
and subsequently he was tried by SSFC and a dismissal order was issued
against him. The learned Single Bench of the High Court set aside the order
of dismissal since the Commanding officer of the respondent tried him as a
Summary Court. The facts in the said judgment are almost identical to the
facts of this case and it cannot be urged that the same is distinguishable in
facts. The said judgment was delivered placing reliance upon the judgments
delivered in the cases of Union of India vs. Dinesh Prasad, reported in (2012)
12 SCC 63 and Union of India vs. Vishav Priya Singh, reported in (2016) 8
SCC 641. In the case of Union of India vs. Dinesh Prasad (supra) wherein also
the lis was that the very Commandant of the Battalion, who signed and
issued the charge sheet, convened and presided over the summary court-
martial and on conclusion of which the punishment of dismissal from service
was imposed. The legal position exposited by the Hon’ble Supreme Court in
the case of Union of India Vs.Shri Dickson Chand Marak (supra) renders the
judgment impugned in the present appeal unsustainable.
18. Mr. Ghosh has placed heavy reliance upon the decisions of the
Hon’ble Supreme Court in the cases of Mohinder Singh Gill and Another
versus Chief Election Commissionaire, New Delhi and Ors., reported in (1978)
1 SCC 405, Union of India & Ors. versus B.N. Jha, reported in (2003) 4 SCC
531 and Arjun Chaubey Vs. Union of India & Ors., reported in AIR 1984 SC
1356 in support of his submission that the order of dismissal from service by
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SSFC was in violation of principles of natural justice. We are afraid none of
these decisions have any application to the facts of the present case.
19. The argument of Mr. Ghosh that the judgment delivered in the case of
Union of India Vs. Shri Dickson Chand Marak (supra) cannot be treated as a
binding precedent is, however, not acceptable to us inasmuch as in the said
judgment the Hon’ble Supreme Court upon arriving at a categoric finding
that the Commandant, who issued the chargesheet, has the jurisdiction and
competence to conduct the SSFC, set aside the judgment impugned therein.
Such finding neither can be construed as a direction under Article 142 of the
Constitution nor an obiter. The judgment delivered in the case of Union of
India Vs. Shri Dickson Chand Marak (supra) constitutes a binding precedent
within the meaning of Article 141 of the Constitution. The finding arrived at
by the Hon’ble Supreme Court in the said judgment is neither a remark
made nor an opinion expressed by the Court upon the cause by way of an
illustration, argument, analogy or expression and as such the same cannot
also be construed as an obiter.
20. For the reasons discussed above, the directions contained in the
judgment dated 24.11.2022 quashing the orders impugned in the writ
petition being WPA 2076 of 2008 and the observation that Suvasis would be
entitled to reinstatement and/or back wages and other benefits, are set
aside.
21. The Registry is directed to refund the amount deposited by the
appellants pursuant to the earlier direction of the Court dated 01.04.2024
along with the interest accrued thereon.
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22. The appeal is, accordingly, disposed of.
23. Urgent Photostat certified copy of this judgment, if applied for, be
given to the parties, as expeditiously as possible, upon compliance with the
necessary formalities in this regard.
(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)
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