REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    2061         OF 2008 [Arising out of SLP (Criminal) No. 5439 of 2006]

EX-CONSTABLE RAMVIR SINGH     … APPELLANT

VERSUS

UNION OF INDIA & ORS.     … RESPONDENTS

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.  

2. Appellant  is  before  us  aggrieved  by  and  dissatisfied  with  the

judgment and order dated 23.5.2006 passed by the High Court of Punjab &

Haryana at Chandigarh dismissing the writ petition filed by him questioning

an order of the Summary Security Force Court dated 8.9.2002 whereby and

whereunder a sentence of dismissal from service was imposed.  

3. Appellant,  at  all  material  times,  was working as a constable in the

Border Security Force.  At the relevant time, he was posted at 24 Bn. BSF at

Jodhpur.  His duty, inter alia, was collection of official dak from Central

Diary, FHQ BSF, New Delhi through SHQ BSF Amritsar. He was sent to

SHQ BSF Amritsar along with one ‘Kalipada Mandal’.  He had been given

an authority letter with an electricity bill.  He was directed to collect bank

draft prepared in respect of the said bill by PAD well in advance, otherwise

to report to the Unit immediately.  The Dak was collected from the Central

Diary.  They reached at their  destination on 31.7.2000; collected the Dak

from Central Diary, FHQ BSF New Delhi on 3.8.2000.  Appellant informed

the Second-in-Command on phone on 3.8.2000 that some unit drafts were to

be  collected  from  PAD.   As  5th and  6th August,  2000  were  holidays,

appellant  was  directed  to  report  back  forthwith  by boarding the  evening

train from Amritsar on 3.8.2000 as he had official Dak in his possession.

He did not do so although he had already collected the official Dak.   

He reported  for  duty on  7.8.2000.   An enquiry was  initiated.   He

could  not  give  a  satisfactory  reply  before  the  Commandant.   He  was

awarded 7 days’ Rigorous Imprisonment (RI) in the custody of the force for

absence without leave.  The said punishment was imposed as the offence

was committed by him for the second time during service.  According to

respondents, earlier he had committed the following offences.

“1. Disobeyed the lawful command of then 21C of his Unit.

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2. Kept official Dak with him for 4 days.

3. Absented himself from duty for 4 days.”

While in the custody of the force, he is said to have committed the

following offences:

“a. Refused to take meals w.e.f. 10/08/2000 to 11/08/2000 in protest of punishment.

b. Refused  to  do  the  pack  drill  on  all  seven days  while  undergoing  RI,  which  is  total defiance of authority.”

He was put to trial  before a Summary Security Force Court on the

aforementioned  two  charges  in  terms  of  the  provisions  of  the  Border

Security  Force  Act,  1968  (for  short,  “the  Act”)  and  the  rules  framed

thereunder.

4. He  pleaded  guilty  to  both  the  charges.   He  was  dismissed  from

service.  A statutory petition filed by him under Section 117 of the Act was

rejected by the Director General of Border Security Force by an order dated

28.6.2001. Legality and/ or validity of the said order came to be questioned

by the appellant by filing a Writ Petition before the Punjab & Haryana High

Court at Chandigarh which was marked as Criminal Writ Petition No. 872

of 2003.

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5. Before the High Court, principally two contentions were raised, (1) he

had not been given an opportunity to engage the services of a counsel, and

(2) the punishment imposed is disproportionate to the gravity of the offence

charged against.

6. Both the said contentions were rejected by the High Court by reason

of the impugned judgment.  

7. Mr. Shiv Prakash Pandey, learned counsel appearing on behalf of the

appellant apart from the contentions raised before the High Court, urged:  

i. As  ‘Kalipada  Mandal’,  another  constable  of  the  Border

Security  Force  having  also  absented  from the  duties  and  no

action  having  been  taken  against  him,  the  entire  proceeding

against appellant is vitiated in law.  

ii. The purported misconduct having been committed by appellant

while he was in prison, it does not come within the purview of

‘misconduct’ within the meaning of Section 22 of the Act.  

8. Mr.  A.  Sharan,  learned  Additional  Solicitor  General,  on  the  other

hand, submitted:

i. Appellant  being  in  uniform  service,  where  discipline  is

considered  to  be  of  utmost  importance,  and  in  view  of  the

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indisciplined conduct on the part  of the appellant,  it  is  not a

case where he deserves a lesser punishment.  

ii. The plea that  he  was not  permitted  to  engage  a counsel  has

never been raised by appellant and as admittedly, in terms of

Rule 157 of the Border Security Force Rules, 1969, one Shri

Ashim Biswas, Assistant Commandant was detailed as a friend

of the accused in the trial, the same should not be allowed to be

raised.

iii. Appellant pleaded guilty to both the charges; he did not adduce

any evidence; he purported to have offered an explanation that

he  was  suffering  from stomachache  and,  therefore,  he  could

neither take any food nor could participate in the pack drilling,

which have been found to be incorrect, this Court should not

interfere with the impugned judgment.  

9. The question as to whether he was discriminated against vis-à-vis the

aforementioned Kalipada Mandal having not been raised by him before the

High Court, we are of the opinion that it is not possible for us to consider

the said contention which has been raised for the first  time.  Mr. Pandey

submitted that such a contention had been raised in the Writ Petition.  It

might have been raised but it does not appear from the impugned judgment

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that the same was pressed before the High Court.  This Court is bound by

the Judge’s record.  If the High Court, as contended by Mr. Pandey, despite

raising a contention in that behalf did not deal therewith, the only remedy

available to him was to move the High Court drawing its attention thereto.

Apart from the fact that the said procedure was not adopted by appellant,

even before  us,  neither  the  counsel  appearing  in  the  High  Court  nor  the

appellant,  affirmed any affidavit  that such a contention, in fact, had been

raised before the High Court.  It is, therefore, not possible for us to accept

that the contention as regards the discrimination against the appellant vis-à-

vis the said Kalipada Mandal was raised.  

10. In  State of Maharashtra v.  Ramdas Shrinivas Nayak [(1982) 2 SCC

462], this Court held:

“4.  When  we  drew  the  attention  of  the  learned Attorney-General  to  the  concession  made  before the High Court, Shri A.K. Sen, who appeared for the  State  of  Maharashtra  before  the  High  Court and led  the  arguments  for  the  respondents  there and  who  appeared  for  Shri  Antulay  before  us intervened and protested that he never made any such  concession  and  invited  us  to  peruse  the written  submissions  made  by  him  in  the  High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable.  They  are  not  open  to  doubt. Judges  cannot  be  dragged  into  the  arena.

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‘Judgments cannot be treated as mere counters in the  game  of  litigation.’  (Per  Lord  Atkinson  in Somasundaram  Chetty  v.  Subramanian  Chetty.) We  are  bound  to  accept  the  statement  of  the Judges  recorded  in  their  judgment,  as  to  what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at  the  hearing,  recorded  in  the  judgment  of  the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other  evidence.  If  a  party  thinks  that  the happenings in court  have been wrongly recorded in  a  judgment,  it  is  incumbent  upon  the  party, while the matter is still  fresh in the minds of the Judges,  to  call  the  attention  of  the  very  Judges who  have  made  the  record  to  the  fact  that  the statement made with regard to his conduct was a statement  that  had been made in error  (Per Lord Buckmaster  in  Madhu  Sudan  Chowdhri  v. Chandrabati Chowdhrain.) That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led  to  gross  injustice;  but,  he  may  not  call  in question the very fact of making the concession as recorded in the judgment.”

[See also Bhavnagar University v. Palitana Sugar Mill (P) Ltd. (2003)

2 SCC 111 and Dhanabhai Khalasi v. State of Gujarat, (2007) 4 SCC 241]

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11. Appellant  did  not  even  raise  any  contention  before  the  Summary

Security  Force  Court  that  he  intended to  consult  a  lawyer  or  to  select  a

friend of his choice as provided for in Rule 157 of the Rules.  The High

Court, therefore, in our opinion, has rightly opined that such a contention

cannot be permitted to be raised.  

12. So far as the question of imposition of disproportionate punishment

on the appellant is concerned, suffice it to note that he pleaded guilty.  It

was an unconditional plea.  He might have offered an explanation, but as it

was not found to be correct; he should have proved the same.  No medical

record was produced to show that he had been suffering from any kind of

ailment. Evidently, he refused to take meals only as a measure of protest

when he had been imposed a sentence of seven days R.I.  He was bound to

follow the rules.  He is presumed to know the consequences of violation

thereof.  It may or may not be that he committed acts of insubordination by

not taking food but he did not even participate in the pack drilling, which,

concededly, is imperative. It is, therefore, not a case where the High Court

could come to the conclusion that the punishment imposed is shocking to

the conscience.

The doctrine of proportionality in a given case may be invoked by the

Superior  Courts  in  exercise  of  its  jurisdiction  under  Article  226  of  the

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Constitution of India.  It was so held in Ranjit Thakur     vs. Union of India &

Ors. [(1987) 4 SCC 611], stating:

“25. Judicial  review  generally  speaking,  is  not directed against a decision, but is directed against the "decision making process". The question of the choice and quantum of punishment  is  within  the jurisdiction  and  discretion  of  the  Court-Martial. But the  sentence has to  suit  the offence and the offender.  It  should  not  be  vindictive  or  unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of  proportionality,  as  part  of  the  concept  of judicial  review,  would  ensure  that  even  on  an aspect  which  is,  otherwise,  within  the  exclusive province of  the Court-Martial,  if  the  decision  of the  Court  even  as  to  sentence  is  an  outrageous defiance of logic, then the sentence would not be immune  from  correction.  Irrationality  and perversity  are  recognised  grounds  of  judicial review…”

13. In the facts of the present case, however, we are of the opinion that

the said doctrine should not have been invoked.  Appellant was in uniform

service.  BSF is a disciplinary force.  Appellant pleaded guilty to both the

charges.   He  could  not  show  any  mitigating  circumstances.    He  had

committed a similar offence earlier.  He had been asked to report back to

duty as he had been carrying a bank draft, which was necessary for payment

of the electricity bill as it was required to be deposited by the due date.  He

not only disobeyed the said order but also in fact reported three days after

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the  date  he  was  asked  to  arrive  at  Amritsar.   In  any event,  we are  not

concerned  with  the  justification  of  imposition  of  the  sentence  or  the

quantum thereof in the disciplinary proceedings.   The order imposing the

said sentence is not in question before us.  The purported harsh punishment

as submitted by Mr. Pandey is, therefore, not a matter of which we can take

cognizance at this stage.  

14. The question as to whether refusal to take food by itself would come

within the purview of Section 41 of the Army Act, 1950, this Court in Ranjit

Thakur (supra) held:

“The submission that a disregard of an order to eat food does not by itself amount to a disobedience to a lawful command for purposes of Section 41 has to be examined in the context of the imperatives of the high and rigorous discipline to be maintained in  the  Armed  Forces.  Every  aspect  of  life  of  a soldier  is  regulated  by  discipline.  Rejection  of food  might,  under  circumstances,  amount  to  an indirect  expression  of  remonstrance  and resentment  against  the  higher  authority.  To  say that,  a  mere  refusal  to  eat  food  is  an  innocent, neutral act might be an over-simplification of the matter. Mere in-action need not always necessarily be neutral. Serious acts of calumny could be done in  silence.  A  disregard  of  a  direction  to  accept food might  assume the complexion of  disrespect to, and even defiance of authority. But an unduly harsh and cruel  reaction to the expression of the injured  feelings  may  be  counter-productive  and even by itself be sub verse of discipline. Appellant was  perhaps  expressing  his  anguish  at,  what  he considered,  an  unjust  and  disproportionate

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punishment  for  airing  his  grievances  before  his superior officers.”

It was not a case where the quantum of punishment for violating the

regulation applicable to the inmates of a prison was involved.  Therein the

delinquent employee was sentenced to one year’s R.I. and further dismissed

from service with the added disqualification of being declared unfit for any

future civil employment.  The charge of misconduct that he refused to eat

his food was found to be strikingly disproportionate.   

15. A punishment of simplicitor dismissal from service, in a situation of

this nature, cannot, however, be held to be disproportionate to the gravity of

misconduct.  

16. In  Union of India  vs.  Narain Singh  [(2002) 5 SCC 11], this Court

held:

“7. This Court has, in the case of Union of India v. Sardar Bahadur [(1972) 4 SCC 618], held that there  are  limits  of  the  powers  which  can  be exercised by a Single Judge under Article 226 of the Constitution and, similarly, there are limits to the powers  of  a  Division  Bench while  sitting  in appeal over the judgment of a Single Judge. This Court  has  held  that  where  there  are  relevant materials  which  support  the  conclusion  that  the officer is guilty, it is not the function of the High Court  to arrive at an independent  finding.  It  has been held that if an enquiry has been properly held

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the question of adequacy or reliability of evidence cannot be canvassed before the High Court.

8.  In  the  case  of  Apparel  Export  Promotion Council v. A.K. Chopra [(1999) 1 SCC 759], it has been  held  by  this  Court  that  it  is  within  the jurisdiction  of  the  competent  authority to  decide what  punishment  is  to  be  imposed  and  the question of punishment is outside the purview of High  Court's  interference  unless  it  is  so disproportionate  to  the  proved  misconduct  as  to shock the conscious of the Court. It has been held that  reduction  of  sentence  by  the  High  Court would have a demoralising effect and would be a retrograde  step.  It  has  been  held  that repentance/unqualified  apology  at  the  last appellate stage does not call for any sympathy or mercy.”

17. Yet again in Union of India & ors. vs. Datta Linga Toshatwad [(2005)

13 SCC 709], this Court opined:

“8. The present case is not a case of a constable merely  overstaying  his  leave  by  12  days.   The respondent  took leave from 16.6.1997 and never reported for duty thereafter.  Instead he filed a writ petition  before  the  High  Court  in  which  the impugned order has been passed.  Members of the uniformed  forces  cannot  absent  themselves  on frivolous pleas, having regard to the nature of the duties enjoined on these forces.  Such indiscipline, if  it  goes  unpunished,  will  greatly  affect  the discipline of the forces.  In such forces desertion is a serious matter.  Cases of this nature, in whatever manner  described,  are  cases  of  desertion particularly  when  there  is  apprehension  of  the member of the force being called upon to perform onerous duties in difficult  terrains or an order of deputation which he finds inconvenient, is passed.

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We cannot  take such matters  lightly,  particularly when it relates to uniformed forces of this country. A member of a uniformed force who overstays his leave  by  a  few  days  must  be  able  to  give  a satisfactory explanation.   However,  a member of the force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying  his  leave.   He  must  be  treated  as  a deserter.  He appears on the scene for the first time when  he  files  a  writ  petition  before  the  High Court,  rather  than  reporting  to  his  Commanding Officer.   We  are  satisfied  that  in  cases  of  this nature,  dismissal  from  the  force  is  a  justified disciplinary  action  and  cannot  be  described  as disproportionate to the misconduct alleged.”

18. The  last  contention  raised  on  behalf  of  the  appellant  in  regard  to

construction of Section 22 of the Act may now be considered.   

Section 22 of the Act reads as under:

“22  -  Insubordination  and  obstruction -  Any person subject to this Act who commits any of the following offences, that is to say,--

(a) being  concerned  in  any  quarrel,  affray  or disorder, refuses to obey any officer, though of inferior rank, who orders him into arrest, or  uses  criminal  force  to  or  assaults  any such officer; or

(b) uses  criminal  force  to,  or  assaults  any person, whether subject to this Act or not, in whose  custody  he  is  lawfully  placed,  and whether he is or is not his superior officer; or

(c) resists  an  escort  whose  duty  it  is  to apprehend him or to have him in charge; or

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(d) breaks out of barracks, camp or quarters; or

(e) neglects to obey any general, local or other order; or

(f) impedes  the  Force  Police  referred  to  in section 63 or any person lawfully acting on his behalf, or when called upon, refuses to assist  in the execution of his  duty a Force Police or any person lawfully acting on his behalf,

shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend,  in  the  case  of  the  offences  specified  in clauses (d) and (e), to two years, and in the case of the offences specified in the other clauses, to ten years, or in either case such less punishment as is in this Act mentioned.”

19. It is  wide in nature.  It  is  neither in dispute nor doubt that even a

person while in custody would be subject to the Act.  The custody of the

appellant  was  an  internal  custody,  he  having  been  imposed  with

punishment.   

It  is  not  a case  where  a  prisoner  is  governed  by a  separate  set  of

legislation.  It is also not a case where a prisoner is sent to an independent

authority.  Even while he is in custody, he is a member of the force.  He,

therefore, in terms of clause (e) of Section 22 of the Act neglected to obey

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any general, local or other order.  Even while in custody a member of the

force serving the sentence would still be an officer of the Force.  

20. However, it is well known that except the cases where the punishment

is  shockingly  disproportionate,  the  Superior  Courts  would  not  ordinarily

interfere with the quantum of punishment.

21. In  The Managing Director State Bank of Hyderabad & Anr.  vs.  P.

Kata Rao [2008 (6) SCALE 575], this Court held:  

“18.  There  cannot  be any doubt  whatsoever  that the  jurisdiction  of  superior  courts  in  interfering with  a  finding of  fact  arrived  at  by the  Enquiry Officer  is  limited.  The  High  Court,  it  is  trite, would  also  ordinarily  not  interfere  with  the quantum of punishment...”

22. We, therefore, do not find any infirmity in the judgment of the High

Court.  The appeal is dismissed.   However, there shall be no order as to

costs.  

……………….…..………….J. [S.B. Sinha]

..………………..……………J. [Cyriac Joseph]

New Delhi;

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December 18, 2008

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