Gravity Of Misconduct Must Be Paid Heed On Before Imposing Penalty.

CASE TITLE

B. S. HARI COMMANDANT VS UNION OF INDIA & ORS

DATE OF ORDER

13th APRIL 2023

BENCH

HON’BLE JUSTICE MR. AHSANUDDIN AMANULLAH

PARTIES

APPELLANT- B. S. HARI COMMANDANT

RESPONDENT- UNION OF INDIA & ORS 

SUBJECT

Whether the petitioner who is the Commandant will be held liable for the smuggling of a controllable substance under NDPS Act.

OVERVIEW

• The present criminal appeal is against the impugned judgement and order passed by Punjab & Haryana High Court on 19.02.2010. The High Court dismissed writ petition preferred by the appellant (original writ petitioner).
• On 05.04.1995,  a search was conducted by local police in pursuance to FIR lodged in the same day , stating that a few Jerrycans of Acetic Anhydride which is a controlled substance under the NDPS Act, 1985 were to be located in territory owned by Indian civilians adjoining Pakistan border. Two accused namely Lakhwinder Singh and Surjit Singh were shown to be smugglers.
• The appellant was, on 07.04.1995, directed to handover the charge and was placed under arrest. No incriminating was however found from appellant’s house on search.
• An inquiry was set up for the incident. In the said inquiry, the inspector who was in actual charge of the area in vicinity made a statement that he was involved in the incident at the behest of the appellant. On the basis of the report, charge sheet was issued under Section 40 & 46 of BSF ACT, 1968 against the appellant. However, the charges were later dropped.
• Thereafter, on 20.10.1995 fresh charge sheet was issued against the appellant. Two charges were under Section 46 of BSF ACT,1968 for civil offence  committed in violation of section 25 of NDPS ACT and one charge under Section 40 of BSF ACT. Trial was conducted by the General Security Force Court.
• GSFC gave its verdict. Appellant was not guilty for the first charge but was found guilty for second and third charges. Consequently, he was given rigorous imprisonment of 10 years and fine and dismissed form the service.
• Appellant filed a criminal writ petition before the High Court praying to quash his trial and all consequential orders and to release the pensionary and other benefits to the appellant.
• High court dismissed this criminal writ petition which is the impugned order and judgement in the present appeal.

ARGUMENTS ADVANCED BY APPLLEANT 

• The counsel submitted that the Acetic Anhydride is neither a narcotic drug nor a psychotropic substance. It is only a controlled substance under Section 9A of the NDPS Act, punishable under section 25A of the same act.
• It was submission made by the counsel that the dismissal of the appellant from the service was illegal. It is so because the appellant retired on 31.08.1995 which is before the issuance of charge sheet in question. Emphasis was given to Rule 166 of the Rules, which make it clear that there cannot be aby sentence of dismissal from service as this sentence was made much after the superannuation of the appellant.
• Counsel submitted that the Force ( herein, BSF) wad vested with no authority to withhold pensionary and other benefits of the appellant as because the appellant was already superannuation on 31.08.1995. The withholding of benefits of the service by the Force against the appellant is arbitrary.
• Even under Rule 9 of the Central Civil Services (Pension) Rules,1972 withholding pension was violative.
• It was submitted by the counsel that there has been violation of provisions of the BSF ACT. Also there was no conformity with the principles of natural justice in the case.

ARGUMENTS ADVANCED BY RESPONDENT 

•  The counsel supported the judgement of the High Court and submitted that there was no infirmity in appellant being tried under the three charges.
• The counsel contended that the appellant cannot take benefit from the fact that Surjit Singh was acquitted. Surjit Singh who was alleged to be smuggler proved in the court of law that he was in jail when the incident took place.
• It was submitted that the appellant was in control of the area of borders where Jerrycans of Acetic Anhydride were placed for smuggling. Hence the role of appellant in aiding the movement was clear.
• In context to pension and other benefits, counsel submitted that the appellant had been paid GPF and CGEIS. Also, the appellant was paid pension as per Rule 69 of the pension rules, and only rarer on, the same was stopped.

JUDGEMENT 

• The apex court allowed the present appeal. The impugned judgement and order passed by the High Court were quashed and set aside.
• The court set aside the conviction and sentence given by the General Security Force Court on 10.04.1996.
• Court held that appellant is entitled to all benefits of retirement from the date of his superannuation till date.
• The court held that appellant, being the Commandant was not obligated with the duty to prevent such incident. Labeling him as an aider or facilitator of such incident is unjustified.
• The subordinate personnel who was actually manning the area has been adjudged guilty. However, there is no direct evidence against the appellant.
• Court held that the punishment held by GSFC was too hard, considering the fact that appellant had served the country for a very long time without any blame kr blemish which is evident from several awards bagged by him. The service record of appellant is thus unquestionable.

CONCLUSION 

The conclusion that can be drawn from the above case is that the apex court had rightly adjudicated the matter and drawn in its judgement that the punishment given to the appellant was way too harsh. Gravity of misconduct must be paid heed on before imposing penalty. Any disproportionate penalty is violation of article 14 of the person and also against principle of natural justice.