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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: SHRI IQBAL SINGH CHEEMA

DATE OF JUDGMENT16/10/1995

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) NANAVATI G.T. (J)

CITATION:  1996 AIR  426            1995 SCC  Supl.  (4)  84  1995 SCALE  (6)137

ACT:

HEADNOTE:

JUDGMENT:                             WITH                 CIVIL APPEAL NO 9580 OF 1995              (Arising out of S.L.P. No.9235/92)         Shri I.S. Cheema                .. appellant                              V.        Union of India & Anr.           .. respondents                          O R D E R      Leave granted  in both the special leave petitions Nos. 8416 and 9235 of 1992.      Special leave  petition  No.  8416  of  1992  has  been presents by  the Union of India and its officers against the judgment and  order dated  February 26,  1992 passed  by the High Court  of Gauhati in Civil Rule No. 208 of 1990 and the other Special  leave petition  No. 9235  of  1992  has  been preferred by  the appellant  I.S. Cheema  against  the  same order Passed  by Gauhati  High Court.  In  a  Court  Martial proceeding initiated  against I.S.  Cheema under  the Border Security Force Act, 1968 and the consequential punishment of dismissal, a writ petition was moved before the Gauhati High Court by  I.S. Cheema  who at  the relevant time was holding the post  of Commandant (Selection Grade ) in the B.S.F. The Court Martial  proceeding  was  initiated  on  a  charge  of corruption by  directing subordinate officers to arrange for weekly  payments  to  the  said  Commandant  by  encouraging smuggling activities  in the  border. Before the High Court, the said  I.S. Cheema  contended that  the Court Martial had not been  properly conducted in view of the fact that he had been  denied  reasonable  opportunity  of  being  heard  and contest the said proceedings. It was also contended that the Court Martial  itself was  not properly  constituted because one of  the members  was a Commandant in the Border Security Force but  such member  was junior  to him  in seniority. It appears that  by the  impugned   order, the  High Court  has accepted both  the contentions  and accordingly  interferred with the impugned order of dismissal from service.

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    The learned  Additional Solicitor  General appearing in support of  the appeal  preferred by  the Union of India has contended that under the rules constitution of Court Martial was to  be made  with officials  not below  the  rank  of  a Commandant for  trial of a member of B.S.F. holding the rank of Commandant.  It is  not necessary that such Commandant in the Court  Martial Board should also be senior to Sri Cheema who was  also a Commandant in B.S.F. It was contended by Sri Cheema that  since he was a Commandant (Selection Grade), he must be  held senior  to the Commandant not in the Selection Grade. The learned Additional Solicitor General has referred to a  decision of  this Court in Union of India and Anr. Vs. S.S. Ranade  (1995(4) SCC  462 In  the said decision, it has been held  that the  Commandant (Selection  Grade)  and  the Commandant not  in the  selection grade both are governed by the same  rules and  they belong  to same  rank  and  cadre. Therefore,  Commandant   (Selection  Grade)   cannot   claim superannuation at  the age  of 58  Years  when  the  age  of superannuation of  a Commandant  is  55  Years.  Mr.  Tulsi, learned Additional  Solicitor General, has submitted that as the Court  Martial was  constituted with  a Commandant,  the provision of  the rules  had been complied with and the High Court had gone wrong in holding that Cheema being Commandant (Selection Grade)  was  senior  to  Commandant  not  in  the Selection Grade  and such  junior  Commandant  cannot  be  a member in  the Board.  In our  view, such  contention of the learned Additional Solicitor General is justified. The Board in our  view had  been  constituted  properly  by  taking  a Commandant in  it  and  it  was  not  necessary  to  have  a Commandant (Selection Grade) in the Board because Sri Cheema was a  Commandant (Selection  Grade). In  the facts  of  the case, it  also does not appear that Court Martial proceeding was vitiated  for not  giving reasonable  opportunity to Sri Cheema to defend him in the Court Martial proceeding.      It, however, appears to us that Sri Cheema has attained the age  of superannuation  in the  year 1992. Even if it is held that  proper opportunity  of being  heard was  not made available to  him, it  will be impractical now to direct for constitution of  a Court  Martial for holding a fresh trial. We have considered the materials on record and it appears to us  that   the  finding  by  the  Court  Martial  about  the complicity of  Sri Cheema  in the  offence charged cannot be held  as  unjustified.  It,  however,  appears  to  us  that initially the Court Martial proposed for forfeiture of seven years’ service  for the  purpose of promotion and pensionary benefits against  Sri Cheema,  but  such  proposal  was  not accepted and the impugned order of dismissal was passed.      In the  facts of  the case,  we feel  that the  ends of justice will be met if the order of dismissal is replaced by the proposed  punishment viz.  forfeiture of  promotion  and pensionary benefits  for seven  years. The impugned order of the High  Court is set aside and punishment of Sri Cheema is altared to the aforesaid extent.      We only  add that  the  charge  of  corruption  alleged against the  said officer  is quite  serious which  requires that a  deterrent punishment  should be  passed. However, in the peculiar  facts  of  this  case,  we  have  awarded  the aforesaid iessor  punishment and  we may  indicate that this case should  not be  treated as a precedence for other cases of corruption.      Both the appeals ate accordingly disposed of.