Union Of India & Ors vs Debashish Ghosh

UNION OF INDIA & ORS. .......APPELLANT(S)

Versus

DEBASHISH GHOSH .....RESPONDENT(S)

ORDER

This is an appeal by Union of India against the judgment of the Division

Bench of the Calcutta High Court whereby the Calcutta High Court allowed the writ

appeal filed by the respondent herein. The respondent herein was serving as a

constable in the Border Security Force, 'BSF' for short, having joined the service in the

year 1988. In his checkered career, on seven occasions, he went on leave and never

reported back in time. On first two occasions, he was merely warned but thereafter on

three occasions he was imprisoned for 28 days under the BSF Act. He did not mend his

ways and remained absent for substantial period on seventh occasion. He was,

therefore, charge-sheeted for the offence under Section 19 of the BSF Act. Summary

Court was formulated, evidence was collected and ultimately he was ordered to be

dismissed. That dismissal was challenged by him by filing a writ petition. The learned

single Judge of the Calcutta High Court dismissed his writ petition. Thereafter, he

filed an appeal in which he succeeded. That is how the matter has come before us.

.......2.

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2. The Division Bench has taken a view that the punishment of dismissal

awarded to the respondent could not have been awarded reading Sections 19, 48(c) and

49 of the BSF Act. It is on that short ground that the punishment of dismissal has been

set aside by the High Court in the impugned judgment. We must point out at this stage

that after allowing the appeal, his reinstatement has been ordered, though the High

Court has kept it open for the respondent Union of India to take appropriate action in

accordance with the provisions of the Act and law as indicated.

3. We have carefully considered the provisions as well as the facts which have

been brought before us by the learned counsel appearing on behalf of the Union of

India. He points out that as per Section 19, the punishment for the offence covered

under clause(c) thereof would ordinarily have been three years. Learned counsel

points out to the particular portion of the Section which are as under:-

"19. Absence without leave.- Any person subject to this Act who commits any of the following offences, this is to say,-

(a) xxx

(b) without sufficient cause overstays leave granted to him; or

(c) to (g) x x x

shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned."

[Emphasis supplied] ......3.

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Learned counsel further takes us to Section 48 which provides the punishments

awardable in the Act. Those punishments are:

(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) to (l) xxxxx

Learned counsel argues and in our opinion rightly that the punishment of dismissal is

certainly a lesser punishment than the three years of rigorous imprisonment which was

awardable under Section 19 (see the emphasised portion of Section 19 quoted earlier)

and, therefore, that punishment was awarded to the delinquent respondent and the

authorities were, therefore, justified in passing the order of punishment of dismissal.

He also invites our attention to sub-section (2) of Section 48 which are as under:-

"(2) Each of the punishments specified in sub-section(1) shall be deemed to be inferior in degree to every punishment preceding it in the above scale."

Learned counsel, therefore, buttresses his argument further

......4.

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that punishment provided under Section 48(1)(c) is a lesser punishment than Section

48(1)(b) and under Section 19 the punishment covered by Section 48(1)(b) could have

been given but the lesser punishment of dismissal was given. Learned counsel also

points out the power to award alternative punishments awardable by Security Force

Courts covered by Section 49.

4. The learned counsel appearing on behalf of the respondent points out that in

the past the delinquent respondent was awarded with punishment of 28 days

imprisonment for his overstaying and, therefore, he should have been awarded the

punishment upto 90 days as covered under Section 48(1)(d) and, therefore, the

punishment of dismissal could not have been awarded by the authorities. We are

unable to agree with this argument. As pointed out earlier, the punishment of

dismissal is certainly a lesser punishment than the one covered under Section 48(1)(b)

which could have been the punishment of three years as covered under Section 19. If,

therefore, the lesser punishment of dismissal was given, the authorities were perfectly

justified in awarding such lesser punishment.

5. The learned counsel for the respondent also says that the punishment of

dismissal was disproportionate considering that on earlier occasions he was either

given imprisonment

.....5.

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punishment for 28 days or merely warned. The same offence had been committed on

the basis of which the proceedings were initiated against him. We do not agree. BSF is

a uniformed service and, therefore, the discipline is extremely important for such

Force. It was obvious that during nine years that he served in the BSF, he has

overstayed his leave for seven times. Thus, he had probably developed a habit of not

joining in time after exhausting his leave.

6. In that view, we do not feel that the punishment is disproportionate to the

misconduct on the part of the delinquent respondent. We, therefore, are unable to

agree with the appellate judgment of the Calcutta High Court which has taken a view

that the punishment of dismissal could not have been awarded on the basis of the

language of Sections 19, 48(c) and 49 and would choose to set aside the same.

Accordingly, the impugned judgment of the Calcutta High Court is set aside and that

of the learned single Judge is restored without any order as to costs.

...........................J. ( V.S. SIRPURKAR )

New Delhi; ...........................J. May 21, 2009. ( R.M. LODHA )