Judgment:
ORDER
T.S. Thakur, J.
1. The petitioner was enrolled as a Constable in the Border Security Force against a vacancy reserved for Scheduled Caste candidates. On 25th October, 2003, he was posted at OP No. 2 on the Madera Duty Post under the over all charge of Sub Inspector Chatter Singh. According to the petitioner, a quarrel took place between him and Constable Manoj Kumar in connection with the distribution of sweets among the BSF personnel on the happy occasion of Diwali festival. This incident was, according to the petitioner, distorted by the officers only with a view to falsely implicating and punishing the petitioner. He was charged pursuant to that conspiracy on five counts. The first charge related to his being found intoxicated while on duty. The second charge related to his assaulting two superiors, namely, Sub Inspector Chattar Singh and Head Constable Bala Ram. The third charge accused him of having used threatening language against the superior officers. The fourth charge alleged use of insubordinate/improper language by him against the superior officers while the fifth charge accused him of an act prejudicial to good order and discipline of the force. Evidence was recorded in support of the said charges culminating in the petitioner being brought to trial to face only four charges in which the last of the charges mentioned above, namely, committing an act prejudicial to good order and discipline of the Force was deleted. According to the respondents, the petitioner pleaded guilty to the first three charges thereby necessitating a trial only on the fourth charge, namely, using threatening language to his superior officers. Evidence was in support of that charge recorded before a Summary Security Force Court in which apart from others, Sub Inspector Chattar Singh, Constable Anuj Kumar, Sh. Ramesh Fonia, the Assistant Commandant and Head Constable Bala Ram appeared as witnesses. The statements of Constable Suresh Chand Agnihotry and Constable P. Subaramaniam were also recorded at the trial. Appreciation of the evidence so assembled against the petitioner led the Summary Security Force Court to hold the petitioner guilty on all the four counts. He was on that basis sentenced to dismissal from service.
2. The Deputy Inspector General of BSF in exercise of his powers of review under Rule 116 of the BSF Rules upheld the conviction of the petitioner only on first, second and third charge setting aside in the process his conviction on the fourth charge framed against him. Even so the DIG did not interfere with the sentence awarded by the Summary Security Force Court and dismissed the petition.
3. Aggrieved by his conviction and sentence, the petitioner filed a statutory petition in terms of Section 117 of the BSF Act, 1968 before the Director General, BSF on 30th June, 2004. On receipt of the said petition, the petitioner was asked to obtain a copy of the trial proceedings from the Chief Law Officer, FHQ, BSF, New Delhi and to submit a fresh petition within a period of 30 days of the receipt of the communication by the petitioner. The receipt of trial proceedings from the Chief Law Officer appears to have taken some time with the result that a second petition was submitted by the petitioner but only on 11th February, 2006. In the meantime, the petition earlier submitted by the petitioner on 30th June, 2004 was dismissed by the Director General in terms of an order dated 16/17 December, 2004 inter alias on the ground that the Director General, BSF did not find any reason to interfere with what the Summary Security Force Court had done. The second petition filed by the petitioner was also rejected by the respondents by an order dated 1st March, 2006 on the ground that the same was not maintainable under law apart from the fact that it was barred by limitation. The present writ petition calls in question the correctness of the aforementioned two orders and seeks consequential directions including a mandamus for the petitioner's reinstatement in service retrospectively w.e.f. 7th June, 2006 and release of benefits attached to the same.
4. We have heard at considerable length learned Counsel for the parties and perused the record. Mr. Singh, counsel appearing for the petitioner made a two-fold submission before us. Firstly he contended that the plea of guilt on which the Summary Security Force Court had proceeded to convict the petitioner and sentenced him to dismissal from service had not been properly recorded and was actually a make belief only to get rid of the petitioner who belonged to a depressed section of the society. He urged that the charges framed against the petitioner had not been substantiated and that the evidence recorded at the trial in regard to the fourth charge itself showed that the plea of guilt recorded in relation to the other charges was on the face of the record false and untenable. He argued that the deposition of Sub Inspector Chattar Singh was a clear improvement over the first version which he had given in the daily diary and that which he had conveyed to the higher authorities in the form of a complaint. In neither of the said two written narratives had the witness alleged that the petitioner had at any time assaulted him. The allegation of an assault upon him was, thereforee, contrary to the earliest version regarding the incident reported to the authorities. It was also submitted by Mr. Singh that the statement of one of the prosecution witnesses, namely, Constable S.C. Agnihotri clearly showed that it was Sub Inspector Chattar Singh and Head Constable Bala Ram who had beaten up the petitioner as he was found intoxicated while on duty. It was urged that the testimony of Constable S.C. Agnihotri lent substantial corroboration to the petitioner's version that it was the petitioner who was belaboured by the superior officers and not vice versa as alleged by the prosecution. It was, in that view, strenuously argued by Mr. Singh that the entire Court Martial proceedings stood vitiated and ought to be set aside including the punishment which the respondents had imposed upon the petitioner.
5. Secondly it was contended that the statutory petition filed by the petitioner had been disposed of by the Director General without due and proper application of mind and without recording any reason whatsoever as to why the same deserved dismissal. He submitted that the Director General ought to have at least examined the question of proportionality of the sentence to be imposed upon the petitioner even assuming that the charges framed against the petitioner are proved either on evidence or on account of the plea of guilt recorded by the Summary Security Force Court. Relying upon the decision of the Supreme Court in Bhagat Ram v. State of Himachal Pradesh and Ors. : (1983)IILLJ1SC , Ranjit Thakur v. Union of India : 1988CriLJ158 , Ex-Naik Sardar Singh v. Union of India and Ors. : 1992CriLJ289 , Mr. Singh contended that proportionality of the sentence to be imposed upon a person found guilty of any offence was one of the legitimate areas in which a court exercising powers of judicial review could interfere. He submitted that even if the charges were taken to have been proved to the hilt, dismissal of the petitioner from service without any pensionary benefit after he had served the Force for 12 years was too harsh and unfair a treatment to be countenanced. He urged that the Director General could have looked into this aspect while disposing of the petitioner's statutory petition which part the Director General has unfortunately failed to do.
6. On behalf of the respondents, it was on the other hand submitted that the conviction and sentence of the petitioner was based on the plea of guilt offered by him at the trial and that there was no room for any judicial review on that aspect of the matter at this stage. In so far as the question of proportionality of sentence was concerned, reliance was placed by the learned Counsel upon a Supreme Court decision in Union of India v. R.K. Sharma : AIR2001SC3053 . It was submitted that the earlier decisions of the Supreme Court in Ranjit Thakur and Bhagat Ram's cases (supra) had been explained in the said decision and a note of caution sounded by the apex Court against interference with the quantum of punishment imposed upon delinquent officers in exercise of the powers of judicial review. It was also submitted that the Director General had dismissed the petition after considering the facts and circumstances of the case and that since there was no room for interference by him on account of the plea of guilt recorded by the Summary Security Force Court, he had no option but to dismiss the statutory petition. The review petition filed by the petitioner in February, 2006 was dismissed according to the learned Counsel as no such petition was maintainable.
7. We do not, in the present proceedings, propose to examine the question whether the finding of guilt recorded by the Summary Security Force Court on the basis of the plea offered by the petitioner was justified in the facts and circumstances of the case. That is a matter which can, in our opinion, be more appropriately left to be examined by the Director General in the proceedings initiated before him under Section 117 of the Act. The present petition must however succeed on the alternative ground urged by Mr. Singh before us, namely, that the Director General had not examined the matter satisfactorily nor passed a proper speaking order on the subject as he was required to do. It is evident from a plain reading of communication dated 1st March, 2006 that the first petition filed by the petitioner on 30th June, 2004 was within the period of limitation prescribed for filing the same. The respondents had, however, insisted on production of a copy of the trial proceedings before them as a condition precedent for consideration of the statutory petition. We fail to see how the non-filing of said proceedings could have disabled the Director General from exercising his powers under Section 117 of the BSF Act especially when he had access to and could indeed summon the entire trial record from the Summary Security Force Court to examine the legality of the conviction and the procedural regularity of the trial. Be that as it may, the petitioner was told that since the earlier petition is not accompanied by a copy of the proceedings, he can file a fresh petition after such copies are obtained by him from the Chief Law Officer. This necessarily meant that the first petition was taken as no nest in the eyes of law on account of the same not being accompanied by a copy of the trial proceedings. Having taken that view, there was no occasion for the Director General to reject the petition in terms of his order dated 16/17 of December, 2004. The proper course was to wait for the submission of the second petition from the petitioner and to take a final view on the subject on receipt thereof. Inasmuch as the first petition was despite that representation made to the petitioner, taken up and dismissed summarily, the Director General committed a mistake.
8. That apart, the communication which the petitioner has assailed does not specify the reasons for which the Deputy General has affirmed the view taken by the Summary Security Force Court. The communication no doubt states that the Director General has considered the matter in detail and carefully scrutinized the facts and circumstances of the case but apart from using those expressions, there is nothing on record to show that the Director General had indeed addressed himself to the issues raised by the petitioner regarding the validity of the trial, the fairness of the procedure or the proportionality of the sentence. The powers vested in the Director General are statutory in nature, which can and ought to be exercised only after due and proper application of mind. Application of mind is best demonstrated by disclosure of the mind, which is in turn best done by recording reasons in support of the conclusion drawn by the authority taking the decision. The respondents have not produced before us the relevant official record to demonstrate that the Director General had noticed the grounds that were taken by the petitioner and recorded reasons which weighed with him in rejecting the same. Simply saying that the Director General did not find any reason to interfere with the order passed by the authorities below would not be a sufficient compliance with the obligation that is cast upon the Statutory authority to take a decision only after proper application of mind. In that view of the matter, thereforee, the rejection of the statutory petition by the Deputy General in terms of order dated 16/17 December, 2004 does not appear to be sustainable.
9. Insofar as the subsequent order dated 1st March, 2005 is concerned, the respondents appear to have treated the second petition filed by the petitioner as a review petition and dismissed the same as not maintainable. If the first petition was treated as non-est for want of any mandatory requirement, the second petition could not be treated to be a review petition and dismissed. The respondents ought to have taken the second petition as a petition filed in terms of Section 117 and dealt with the same in accordance with law. Nothing much however turns on the dismissal of the second petition as we have found the dismissal of the first petition itself to be legally unsustainable.
10. In the result, we allow this petition but only in part and to the extent that orders dated 16/17 December, 2004 and 1st March, 2006, Annexures P-11 and P-13 to the petition shall stand quashed. The Director General, BSF shall consider afresh the statutory petition filed by the petitioner in terms of Section 117 of the BSF Act and pass appropriate orders on the same in accordance with law. Needless to say that the Director General would now pass a speaking order setting out the reasons for the view that he may take. The Director General shall also examine whether the punishment imposed upon the petitioner is excessively harsh and disproportionate to the gravity of the offence committed by him hence liable to be reduced keeping in view the decisions of the Supreme Court referred to in the body of this petition. The Director General shall do the needful expeditiously but not later than three months from today under intimation to the petitioner who shall be free to supplement the grounds set out in the petition under Section 117 and also to file any further documents including copies of the judgments which he relies upon within two weeks from today. No costs.