EX.SUB.R.K.SHARMA vs UOI & ORS.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: February 20, 2024
+ W.P.(C) 13629/2004
(2) EX.SUB. R.K. SHARMA ….. Petitioner
Through: Mr. Ankur Chhibber and Mr. Anshuman Mehrotra, Advs.
Versus
UOI & ORS. ….. Respondents
Through: Ms. Monica Arora, CGSC with Mr. Subhrodeep Saha and Mr. Kushal, Advs.
CORAM:
HON’BLE MR. JUSTICE V. KAMESWAR RAO
HON’BLE MR. JUSTICE SAURABH BANERJEE
SAURABH BANERJEE, J. (ORAL)
1. As per facts, the petitioner was appointed to the rank of Sub-Inspector (Direct Entry) in the Border Security Force1 on 14.12.1987. As per the petitioner, based on some anonymous complaints, a Staff Court of Inquiry2 was conducted against him from 10.05.1999 to 27.10.1999. Thereafter, on 10.05.2000, the Commandant 33 Bn BSF, under whose command the petitioner was attached for disciplinary purposes, conducted a Record of Evidence3 against him from 27.05.2000 to 04.10.2000. Subsequent thereto, the petitioner was tried by a General Security Force Court4 from 16.01.2003 to 04.02.2003 for the following charges :
First Charge Under Section 46, BSF Act, 1968 : Committing a civil offence, that is to say, criminal misconduct, being public servant, found in possession of pecuniary resources disproportionate to his known sources of income for which he cannot satisfactorily account, an offence specified under Section 13(1)(e) of the Prevention of Corruption Act, 1988, punishable under Section 13(2) of the Prevention of Corruption Act, 1988.
In that he, while serving in JAD(G) team at Karimganj, Assam between Dec97 and Oct98 remitted an amount of Rs.2,01,150/- (Rupees Two Lakhs, One Thousand One Hundred and Fifty) only through bank drafts and cash, to his wife Smt. Usha Sharma at Bikaner is disproportionate to his known sources of income, which he could not satisfactorily account for.
Second Charge Under Section 40, BSF Act, 1968 : An act prejudicial to good order and discipline of the force.
In that he, at BOP Jabainpur on 1st Sept98, while performing the duties of Offg JSO(G) BSF, Karimganj having come to know about seizure of goods which were being taken for smuggling in a car, improperly and without authority caused the said car to be released.
2. Pursuant to the GSFC trial, though the petitioner was acquitted for the second charge, he was convicted for the first charge and awarded the punishment of dismissal from service. Thereafter, both his confirmation petition and post-confirmation petition were rejected by the Competent Authorities.
3. It is thus that the petitioner by way of the present petition under Article 226 of The Constitution of India, seeks the following reliefs:-
(i) Issue a writ in the nature of Certiorari for quashing the impugned GSFC trial proceedings vide which the petitioner has been sentenced to dismissal from service.
(ii) Issue a writ in the nature of Certiorari or any other appropriate writ order or direction quashing the order of respondents dated 19.12.2003, vide which the statutory petition of the petitioner has been rejected.
(iii) Hold and declare that the BSF Rule 99(1) is violative of Article 14 of The Constitution of India and as such struck down the same.
(iv) Issue a writ in the nature of Mandamus commanding the respondents to re-instate the petitionerin service with all consequential relief and full back wages from the date of re-instatement and retirement benefits from the date the petitioner would have superannuated had he not been wrongly dismissed from service.
(v) Direct the respondents to pay Subsistence Allowance at the enhanced rate of 75% after the first three months along with interest at market rate from the date due to the actual date of payment.
4. In view thereof, learned counsel for the petitioner submits that the impugned proceedings were instituted against the petitioner at the behest of some personnel who had a vengeful attitude towards the petitioner as also that the RoE was conducted against the petitioner in complete contravention of Rule 45(b) and Rule 48 of the BSF Rules, 19695.
5. Learned counsel further submits that the GSFC trial was conducted on the basis of the charge-sheet dated 04.01.2003 and since the same was totally different from the initial charge-sheet dated 10.05.2000, therefore, the GSFC trial proceedings were conducted in complete contravention of the extant legal provisions.
6. Learned counsel then submits that the respondents had failed to prove that the amount sent by the petitioner to his wife was disproportionate to his known source of income as also that the respondents had failed to establish the essential ingredients required for conviction under Section 13(1)(e) of the Prevention of Corruption Act, 19886.
7. Per contra, learned counsel for the respondents submits that the GSFC trial was conducted in a fair and impartial manner and the petitioner was given ample opportunity to defend himself as also that the punishment awarded to the petitioner upon the conclusion of the GSFC trial was commensurate to the gravity of the offences involved in the charge-sheet.
8. Learned counsel for the respondents further submits that as regards the payment of Subsistence Allowance to the petitioner, the Competent Authority had fairly reviewed the same in accordance with Fundamental Rule 53 and found him to be ineligible for any arrears on enhanced rates.
9. Learned counsel for the respondents then submits that the respondents had satisfied all the ingredients required to prosecute the petitioner under Section 13(1)(e) of the PCA.
10. This Court has heard the learned counsel for the parties and has also perused the documents on record.
11. Prior to adjudicating on the merits involved herein, this Court finds that the genesis of the dispute arose when the petitioner was found indulging in certain undesirable activities prejudicial to good order and discipline of the BSF as he was involved in sending/ remitting huge amounts of money to his relatives/family members during the period from June 1996 to December 1998.
12. Pursuant thereto, initially an Inquiry was conducted against the petitioner, which was followed by the SCOI and the RoE and ultimately culminating in the GSFC trial. Interestingly, thereafter in the SCOI proceedings, though the petitioner was granted ample opportunity to cross-examine the witnesses in compliance of Rule 45 of the BSF Rules and as also to make a statement, he declined to do both.
13. Thereafter, in the GSFC trial proceedings, though a fresh charge-sheet was prepared and served upon the petitioner and he was granted liberty for objecting thereto as per Rule 73 of the BSF Rules, however, the petitioner neither objected to the same nor acted thereupon.
14. In essence, all throughout the proceedings, the petitioner failed to either account for or give any reasonable explanation for sending/ remitting huge amounts of money to his relatives/family members over a prolonged period of time.
15. Not only that, though the case of the petitioner was based on a money transaction/ loan transaction inter-se his father and one other person namely Mr. Megha Ram, however, all throughout the SCOI proceedings as also the RoE proceedings, there was no whisper qua any loan, receipt, timeline or like, much less, the name(s) of the parties involved in the said money transaction/ loan transaction as he chose to remain silent about them. In fact, it was only in the subsequent additional RoE and GSFC trial proceedings, wherein barring the oral evidence, once again documents having relevancy qua such loan, receipt, timeline or like were produced by the petitioner.
16. Taking the overall factual matrix involved, it is a matter of common knowledge that as per the well settled law, this Court ought to only exercise jurisdiction under Article 226 of The Constitution of India in rarest of rare circumstances, particularly and only when there is some plausible scope of interference or when there is some non-compliance or non-adherence of any of the prescribed procedure(s) or when some notification/ advertisement/ rule/ regulation or like are/ is under challenge and require deliberation or when the principles of natural justice have not been followed, and certainly not otherwise in each and every situation.
17. Needless to say, this Court finds that there is nothing of that kind in the present petition.
18. In any event, this Court finds no element of bias, unfairness, mala fide, arbitrariness or unreasonableness in the GSFC trial proceedings or in the impugned order, especially when the same very grounds/ arguments urged by the petitioner herein have already been rejected by a well-reasoned order passed after duly appreciating all the necessary evidence and the factual position at hand. Otherwise also, the fact that the petitioner has in fact been acquitted on one of the charges as framed in the charge-sheet, leads this Court to the conclusion that the proceedings before the respondents were credible and not doubtful and thus, raise no suspicion.
19. Under such circumstance, this Court is afraid that the present is not a fit case for appreciating and/ or reappreciating the evidence by reopening it or to go into the veracity or technicality of the proceedings as conducted before the respondents.
20. Furthermore, this Court, while adjudicating the present petition is not acting as a Court of Appeal or a Court of Revision and is not to check the correctness of the impugned order passed by the respondents as it is not a fact-finding authority. This Court is constrained to proceed within the confines of Article 226 of The Constitution of India and the scope thereof is by far somewhat restricted. Therefore, unless there is something gravely wrong which shocks the conscience of this Court, this Court is to refrain from applying its mind in any petition of the present nature, and that too under Article 226 of The Constitution of India.
21. Reliance is also placed upon Chairman cum Managing Director, Coal India Limited &Anr. vs Mukul Kumar Choudhuri &Ors. (2009) 15 SCC 620. The same view has since been reiterated in Pravin Kumar vs. Union of India (2020) 9 SCC 471; Bharat Coking Coal Limited & Ors. vs AMR Dev Prabha & Ors. (2020) 16 SCC 759; State Bank of India vs Ajai Kumar Srivastava (2021) 2 SCC 612.
22. Reliance is further placed upon Union of India & Ors. vs P. Gunasekaran (2015) 2 SCC 610 wherein the Honble Supreme Court of India, has laid down as under:-
12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience.
23. That being so, in view of the factual matrix involved coupled with the settled legal position of law as discussed hereinabove as also the forgoing discussions and reasonings therein, there is hardly any scope of interference called for by this Court under Article 226 of The Constitution of India.
24. Accordingly, the present petition being meritless is dismissed with no order as to costs.
SAURABH BANERJEE, J.
V. KAMESWAR RAO, J.
FEBRUARY 20, 2024/rr
1(hereinafter referred to as BSF)
2 (hereinafter referred to as SCOI)
3 (hereinafter referred to as RoE)
4 (hereinafter referred to as GSFC)
5 (hereinafter referred to as BSF Rules)
6 (hereinafter referred to as PCA)
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