Full Judgment Text
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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.