UNION OF INDIA AND ORS. versus MUDRIKA SINGH

[2021] 11 S.C.R.

AUNION OF INDIA AND ORS.

MUDRIKA SINGH

(Civil Appeal No. 6859 of 2021)

BDECEMBER 03, 2021

[DR. DHANANJAYA Y CHANDRACHUD ANDA.S. BOPANNA, JJ.]

Border Security Force Act, 1968 – s.24(a) – BSF Rules 1969– Unamended r.51 and amended r.51 (amendement in 2011) –CDisgraceful conduct – Punishment under – The incident in questionis alleged to have taken place on the night intervening 16 and 17April 2006 – The complainant, Constable in the BSF, was on Nakaduty between 02:00 to 06:00 hours when the respondent-HeadConstable is alleged to have committed an act of sexual assault onDhim – Record of Evidence (RoE) was submitted to the Commandant– The Commandant noted that there was an inconsistency in thestatements of the witnesses as regards the date on which the incidenthad occurred – The Commandant called for the preparation of anadditional RoE – Summary Security Force Court (SSFC) foundrespondent guilty and demoted him to the rank of Constable as aEpunishment – The Appellate Authority-the Director-General of BSFcommuted the sentence of reduction to the rank of Constable bysubstituting it with the following: (i) To forfeit 05 years services forthe purpose of promotion; (ii) To forfeit 07 years past service forthe purpose of pension; and (iii) To be severely reprimanded – AFwrit petition was filed by the respondent before the High Court,which was allowed and order of the punishment was set aside –Before the Supreme Court, two questions of law were raised: (i)whether the Commandant has the jurisdiction to direct preparationof an additional RoE; and (ii) whether the SSFC is under anobligation to record reasons under Rule 159 of the BSF Rules 1969Gwhen it determines the guilt of an accused – Held: The unamendedsub-rule (2) of Rule 51, as was applicable to the facts of the presentcase, cannot be construed to impose prohibition on theCommandant to seek clarification, and for that purpose of orderingan additional RoE, to facilitate or aid the further processing of theHcase – Rule 51(2) does not contain any such prohibition – On the

contrary, sub-rule(1) to Rule 48 indicates that the officer orderingthe RoE may either prepare an RoE himself or detail another officerto do so – Sub-rule(4) to Rule 48 empowers the officer to ask anyquestion that may be necessary to clarify the evidence – If such apower is conferred upon the officer ordering the RoE while preparingthe RoE himself, it would follow by necessary implication, that sucha power is available to the Commandant even when the RoE isordered to be prepared by another officer – The mere fact that aspecific provision empowering the Commandant to call for furtherevidence was introduced in 2011 cannot result in the conclusionthat absent such power being expressly incorporated, the powerdid not vest in the Commandant – As far as obligation of SSFC torecord reasons is concerned, Rule 149 does not either expressly orby necessary implication impose mandate on the SSFC to recordreasons when it renders its findings of guilt on case referred to it– Thus, the punishment which was imposed on the respondent is incompliance with clauses (a) to (g) of s.48(1).BSF Rules 1969 – Unamended r.51 and amended r.51(amendement in 2011) – Effect of amendment in r.51 – Clarificatorynature – The complainant, Constable in the BSF, was on Nakaduty between 02:00 to 06:00 hours on the night intervening 16 and17 April 2006 when the respondent-Head Constable is alleged tohave committed an act of sexual assault on him – Record of Evidence(RoE) was submitted to the Commandant – The Commandant notedthat there was an inconsistency in the statements of the witnesses asregards the date on which the incident had occurred and orderedan additional RoE – Whether the commandant prior to theamendment of r.51 in 2011 had jurisdiction to direct preparation ofan additional RoE – Held: When an amendment is purely clarificatoryor declaratory in nature, it is deemed to operate retrospectively –The fact that the incident took place in the present case prior to thedate of the amendment, i.e., 25.11.2011, would make no differenceonce the amendment, in the true sense of the expression, is construedto be clarificatory in nature – Against this backdrop, theCommandant was acting within his jurisdiction in ordering anadditional RoE to clarify the date of the incident.

Interpretation of Statutes – Amendment to statute –Clarificatory nature – Held: An amendment to statute or to statutoryrules may often be clarificatory in nature – It is clarificatory in the

Asense that it expressly recognizes power that already vests in theauthority – In those circumstances, when an amendment is purelyclarificatory or declaratory in nature, it is deemed to operateretrospectively.

Service Law – Highlighting rising trend of invalidation ofBproceedings inquiring into sexual misconduct, on hyper-technicalinterpretations of the applicable service rules – Discussed.

Disposing of the appeal, the Court

HELD: 1. Jurisdiction of the Commandant

C1.1 The unamended sub-rule (2) of Rule 51 of BSF Rules1969, as was applicable to the facts of the present case, cannotbe construed to impose prohibition on the Commandant to seekclarification, and for that purpose of ordering an additional RoE,to facilitate or aid the further processing of the case. Rule 51(2)does not contain any such prohibition. On the contrary, sub-rule(1)Dto Rule 48 indicates that the officer ordering the RoE may eitherprepare an RoE himself or detail another officer to do so. Sub-rule(4) to Rule 48 empowers the officer to ask any question thatmay be necessary to clarify the evidence. If such power isconferred upon the officer ordering the RoE while preparing theERoE himself, it would follow by necessary implication, that such apower is available to the Commandant even when the RoE isordered to be prepared by another officer. The purpose of seekingsuch clarification is to facilitate the emergence of the truth asregards the genesis of an incident which is the subject matter ofthe enquiry. The mere fact that specific provision empoweringFthe Commandant to call for further evidence was introduced in2011 cannot result in the conclusion that absent such powerbeing expressly incorporated, the power did not vest in theCommandant. [Para 20][1122-G-H; 1123-A-C]

1.2 An amendment to statute or to statutory rules mayGoften be clarificatory in nature. It is clarificatory in the sense thatit expressly recognizes power that already vests in the authority.In those circumstances, when an amendment is purely clarificatoryor declaratory in nature, it is deemed to operate retrospectively.[Para 21][1123-C-D]H

1.3 This Court has often recognized amendments to servicerules as clarificatory in nature, thereby having retrospectiveoperation. In our view, the power to order additional RoE isincidental to realize the purpose of Rules 48 and 51. In any event,residual powers under Rule 6 would protect this action. Sincethe express power to direct additional RoE under Rule 51 wasincidental to the exercise of the existing powers, the amendmentto Rule 51 which was brought in 2011 must be construed to beclarificatory. In fact, the High Court proceeded on this line ofanalysis by observing that the amendment is clarificatory.However, it chose to not take it to its logical conclusion onthe tenuous ground that no submission had been put forth byeither side to throw light on the relevant provision. [Para 22][1125-B-D]

1.4 The fact that the incident took place in the present caseprior to the date of the amendment, i.e., 25 November 2011, wouldmake no difference once the amendment, in the true sense ofthe expression, is construed to be clarificatory in nature. Againstthis backdrop, the Commandant was acting within his jurisdictionin ordering an additional RoE to clarify the date of the incident.As this is not case of insufficient evidence. During the courseof the RoE, the respondent himself stood by the complainant‘sversion of the date and time on which the alleged incident tookplace, which was the night when the respondent was detailed toNaka duty as Head Constable. The only issue for which additionalRoE was warranted was in regard to the confusion in regard tothe precise date on which the incident took place, consideringthe confusion caused by the incident having occurred on theintervening night of 16 and 17 April 2006. Save and except forthis, the RoE which was prepared initially was comprehensive innature and contained all necessary details of the incident,which were sufficient to sustain the final conclusion.[Para 23][1125-D-G]

2. Recording of reasons

2.1 The decision in Dinesh Kumar which is based upon theview of the Constitution Bench in S N Mukherjee and Som DattDutta provides clear answer and negates the finding of the HighCourt on the mandate of recording reasons by the SSFC when

Adelivering its finding under Rule 149. Rule 149 does not eitherexpressly or by necessary implication impose mandate on theSSFC to record reasons when it renders its findings of guilt on acase referred to it. [Para 29][1134-E-G]

S N Mukherjee v. Union of India (1990) 4 SCC 594 :B[1990] 1 Suppl. SCR 44 – followed.Shyam Sunder v. Ram Kumar (2001) 8 SCC 24:[2001]1 Suppl. SCR 115; Zile Singh v. State of Haryana (2004)8 SCC 1: [2004] 5 Suppl. SCR 272; Union of India v.Dinesh Kumar (2010) 3 SCC 161: [2010] 2 SCR 830;CSom Datt Datta v. Union of India AIR 1969 SC 414 :[1969] SCR 177 – relied on.

S Bhattacharjee v. S Majumdar, (2007) 10 SCC513 : [2007] 6 SCR 743; O P Lather v. Satish KumarKakkar, (2001) 3 SCC 110 : [2001] 1 SCR 827; UnionDof India v. Dinesh Kumar (2010) 3 SCC 161: [2010] 2SCR 830 – referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No.6859 of2021.G

From the Judgment and Order dated 18.12.2018 of the High Courtof Calcutta in FMA No.859 of 2010.

Ms. Madhavi Divan, ASG, Ms. Swarupama Chaturvedi, SatyaLipsu Ray, Ms. Deepanwita Priyanka, Manish, Ms. Vaishali Verma, A.HK. Sharma, Advs. for the Appellants.

Rabin Majumder, Ms. Mousumi Roy, Joydeep Mukherjee, Ms.AAkansha Srivastava, Nand Ram, Advs. for the Respondent.

The Judgment of the Court was delivered by

DR. DHANANJAYA Y CHANDRACHUD, J.

DConclusion................................................................31

Introduction

1. The Union of India and officials of the Border Security Force[1]are in appeal against judgment of Division Bench of the CalcuttaHigh Court dated 18 December 2018 which quashed disciplinaryproceedings against the respondent and reinstated him to his initial positionin the BSF.

2. In April 2006, at the time of the alleged misconduct, therespondent was Head Constable in the BSF and was deployed to theSeventy-second Battalion. On 2 May 2006, the Commandant directedthe Deputy Commandant to prepare record of evidence[2] against therespondent for an offence constituting “disgraceful conduct” underSection 24(a) of the Border Security Force Act 1968[3]. The specificallegation, as set out in the order, was as follows:

“DISGRACEFUL CONDUCT OF AN UNNATURAL KIND

In that he, between 0200 Hrs to 0600 Hrs on 16.04.2006 while onNaka duty under BOP Sahab Khan committed sodomy on theperson of No. [xyz] Const [xyz] of the sam(e) Battalion.”

3. The incident in question is alleged to have taken place on thenight intervening 16 and 17 April 2006. The complainant, Constable in

* The Index is as per the Original Judgment.

1 “BSF“

2 “RoE“

3 “BSF Act 1968“

Athe BSF, was on Naka duty between 02:00 to 06:00 hours when therespondent is alleged to have committed an act of sexual assault on him.The complainant submitted written complaint on 19 April 2006. Underthe BSF Act 1968, such conduct is liable to be prosecuted under Section24(a) which reads as follows:B“24.Certain forms of disgraceful conduct.—Any personsubject to this Act who commits any of the following offences,that is to say,—

(a) is guilty of any disgraceful conduct of cruel, indecent orunnatural kind; or

shall, on conviction by Security Force Court, be liable to sufferimprisonment for term which may extend to seven years orsuch less punishment as is in this Act mentioned.”

D4. The RoE was prepared by the Deputy Commandant andsubmitted to the Commandant. On 10 June 2006, the Commandant notedthat on scrutiny of the RoE proceedings, it was found that there wasan inconsistency in the statements of the witnesses as regards the dateon which the incident had occurred. Hence, on 10 June 2006, theCommandant called for the preparation of an additional RoE. FollowingEthe receipt of the additional RoE, the Commandant issued an order toconvene Summary Security Force Court[4] to try the respondent. In thecourse of the evidence which was recorded pursuant to the direction ofthe Commandant seeking an additional RoE, the complainant stated thatthe incident took place on 17 April 2006. The respondent was providedFwith copies of the RoE, additional RoE and the charge sheet on 3 August2006.

5. On 7 August 2006, the SSFC convened at the Headquarters ofthe seventy-second Battalion of the BSF, at Narayanpur, Malda (WestBengal) for enquiring into the charge under Section 24(a) the BSF Act1968. The respondent pleaded not guilty to the charge. Four prosecutionGwitnesses were examined and the respondent was furnished with anopportunity to cross-examine them and to call for defence witnesses.The SSFC found the respondent guilty of the charge and demoted him tothe rank of Constable as punishment.

H4 “SSFC“

6. On 6 September 2006, the respondent filed statutory petitionunder Section 117[5] of the BSF Act 1968 before the Director-General ofthe BSF to challenge the conviction recorded by the SSFC on 7 August2006. The statutory petition was heard by the appellate authority – theDirector-General of BSF and was disposed of by an order dated 18October 2006. While the charge against the respondent was found tohave been established, the punishment of reduction to the rank ofConstable was commuted, having regard to the fact that the respondenthad over 22 years of unblemished service with 21 rewards to his credit.The respondent was informed that the Director-General of the BSF hadcommuted the sentence of reduction to the rank of Constable bysubstituting it with the following:

“(i) ‘To forfeit 05 years services for the purpose of promotion’;

(ii) ‘To forfeit 07 years past service for the purpose of pension’;and

(iii) ‘To be severely reprimanded.”

7. The respondent moved the High Court at Calcutta under Article226 of the Constitution. Single Judge of the High Court, by an orderdated 7 May 2009, set aside the order of punishment on the ground that:

(i)The original RoE was insufficient to prove the charge; and

(ii)The order of the Commandant for preparing an additionalRoE was beyond jurisdiction.

8. The judgment of the Single Judge has been upheld by theimpugned judgment of the Division Bench of the High Court on 18October 2018 on the ground that:

5 “117. Remedy against order, finding or sentence of Security Force Court.—(1)Any person subject to this Act who considers himself aggrieved by any order passedby any Security Force Court may present petition to the officer or authority empoweredto confirm any finding or sentence of such Security Force Court, and the confirmingauthority may take such steps as may be considered necessary to satisfy itself as to thecorrectness, legality or propriety of the order passed or as to the regularity of anyproceeding to which the order relates.

(2) Any person subject to this Act who considers himself aggrieved by finding orsentence of any Security Force Court which has been confirmed, may present petitionto the Central Government, the Director-General, or any prescribed officer superior incommand to the one who confirmed such finding or sentence, and the Central Government,the Director-General, or the prescribed officer, as the case may be, may pass such orderthereon as it or he thinks fit.”

A(i)The Commandant did not have jurisdiction to direct thepreparation of an additional RoE under Rule 51 of the BorderSecurity Force Rules 1969[6] as it stood at the relevant time;and

(ii)No reasons were furnished by the SSFC or the AppellateBAuthority - Director General of BSF - for holding therespondent guilty.

Submissions

9. Ms Madhavi Divan, Additional Solicitor General appearing onbehalf of the appellants has urged the following submissions:

(i)The High Court has taken hyper-technical view of thematter and has failed to appreciate that the provisions ofthe BSF Act 1968 and BSF Rules 1969 are robust enoughto cover the present case;

(ii)The Commandant directed the preparation of an additionalDRoE by his order dated 10 June 2006. It is evident from areading of the original RoE and additional RoE that this isnot case of “insufficient evidence” as envisaged underRule 59 of the BSF Rules 1969, but case of “clarificatoryevidence”;

E(iii)In minor inaccuracy, the complainant had stated that theincident took place on 16 April 2006 when he was detailedto Naka duty, whereas the incident actually took place onthe intervening night of 16 April 2006 and 17 April 2006. Itwas this inaccuracy which was sought to be corrected inthe additional RoE;F

(iv)There is no provision under the statute or under the rulesprohibiting the Commandant from directing the recordingof additional evidence;

(v)In 2011, Rule 51 was amended by the insertion of clause(2) under which an express power has been conferred onGthe Commandant to direct the recording of further evidence.This provision is clarificatory in nature;

(vi)In any event, Rule 6 is wide enough to cover any allegedlimitation in Rule 51. Rule 6 provides:

H6 “BSF Rules 1969“

“6. Case unprovided for. - In regard to any matter not specificallyprovided for in these rules, it shall be lawful for the competentauthority to do such thing or take such action as may be just andproper in the circumstances of the case.”

(vii)The conclusion of the High Court that the Commandant didnot possess the authority to order the recording of additionalevidence and that he had usurped the power of the superiorauthority under Rule 59, is perverse; and

(viii) Neither the provisions of Rule 149 nor those of Section117(2) require the SSFC or the Director-General to givereasons in support of their decision. This principle is settledCby the judgment of this Court in Union of India v. DineshKumar[7].

10. On the other hand, Mr Rabin Majumder appearing on behalfof the respondent has urged the following submissions:

(i)Rule 6 of the BSF Rules 1969 applies only to matter whichis not specifically provided in the Rules. On the contrary,Rule 51 specifically enunciates the power of theCommandant. In the absence of specific conferment ofpower to order the preparation of an additional RoE at thematerial time, the Commandant had no power to do so;E

(ii)The power to record further evidence is conferred only ona superior authority convening Court under Rule 59;

(iii)Where Commandant decides under Rule 51(2)(iv) to applyto competent officer to convene court for the trial of aperson, only such officer or authority can exercise any ofthe powers provided in Rule 59 which includes returningthe case for recording further evidence, if the evidence onrecord is insufficient;

(iv)As result of the order of the Commandant, the evidenceof the same witnesses was recorded twice over and withoutthe authority of law. In the process of doing so, theCommandant usurped the power of the superior officer orauthority who exercises specific powers under Rule 59;

7 (2010) 3 SCC 161

A(v)The SSFC has not recorded any reason to support theconclusion that the charge against the respondent wasproved;

(vi)The facts of the case would indicate that:

(a)The RoE prepared by the officer detailed by theCommandant by his order dated 2 May 2006 wasinsufficient to prove the charge;

(b)The preparation of the additional RoE was orderedto furnish the prosecution witnesses who had alreadyCbeen examined, cross-examined and re-examined –with second chance to prove the charge; and

(c)The authority which decided the statutory petitionunder Section 117 has not found that the RoEprepared in accordance with the order of theDCommandant dated 2 May 2006 was insufficient toprove the charge;

(vii)The decision of the SSFC is vitiated by incurable illegality,since the order passed on the basis of additional RoEprepared in terms of Commandant’s order dated 10 JuneE2006 was without jurisdiction;

(viii) The Division Bench of the High Court was justified in holdingthat the SSFC is required to furnish modicum of reasonsin support of its conclusion of guilt, and some application ofmind must be demonstrated. Rule 151 requires reasons toFbe furnished for awarding the sentence when finding ofguilt is returned. range of sentences has been prescribedand reasons to support the order of particular sentence isnecessary; and

(ix)The High Court was justified in holding that the finding ofGguilt cannot be based on an ipse dixit order of the superiorofficers. Unless the ultimate decision is informed by reason,it will fall foul of Article 14 of the Constitution.

11. The rival submissions will now be analysed.

Analysis

12. Essentially, down to its core, the controversy in the presentcase turns upon two aspects: firstly, whether the Commandant prior tothe amendment of Rule 51 in 2011 had jurisdiction to direct the preparationof an additional RoE; and secondly, whether the finding of guilt whichhas been recorded by the SSFC stands vitiated in the absence of reasons.Now, before we analyse the first of the above two facets, it becomesnecessary to understand the circumstances in which the Commandantdirected the Assistant Commandant to prepare an additional RoE on 10June 2006.

13. On 2 May 2006, the Deputy Commandant of the Seventy-second Battalion was detailed to prepare RoE on the allegation thatthe respondent had committed an offence under Section 24(a) of theBSF Act 1968. The allegation was that when he was on Naka duty from02:00 hours to 06:00 hours on 16 April 2006, the respondent had committedan act of sexual assault on Constable. In the course of preparing theRoE, the complainant, examined as PW1, reported that:

“I joined 72 BN BSF on 19 Feb 2006 and further posted to B-Coyof Unit B-Coy is deployed in Sahebkhale Sub-Sector. I went toBOP Sahebkhali on 03 April 06 and afterward had been performingduty in BOP Sahebkhali. I was on Naka/Patrolling duty from0200Hrs to 0600 Hrs on 16 April 06 alongwith No.84001083 HCMudrika Singh. At 0400Hrs on 16 April 06 while both of us weresitting on OP Machan (OP No.2) HC Mudrika Singh caught myPenis. HC Mudrika Singh bounded me to undergo sex with himby force. Which incident I reported to Coy Commder on sameday at 0800 hrs. But I did not do sex with him.”

Besides the complainant, the evidence included the statement ofPW2, who produced an extract of the General Duty Register on 17April 2006. PW2 deposed that the respondent and the complainant leftfor patrolling at 01:50 hours on 17 April 2006 and returned at 06:25 hourson 17 April 2006.

14. PW2’s evidence demonstrates that there was an evident errorin PW1’s reference to 16 April 2006. The incident took place in the nightwhich intervened 16 and 17 April 2006, i.e.,in the early hours of 17 April2006. It was in this backdrop, that on 10 June 2006, the Commandantordered the Assistant Commandment to prepare an additional RoE so as

Ato clarify the date on which the incident had occurred. Significantly,after the SSFC’s order dated 7 August 2006 by which the respondent’srank was reduced to that of Constable, in the course of his statutorypetition he clearly stated that:

“That I was charged with false allegation that at about 4.00 hrsBon 17th April, 2006 while on Nake duty in AOR of BOP SahebkhaliI caught hold of the Penis of No. [xyz] constable [xyz] of thesame Unit.”

The defence of the respondent was that:

“That I categorically say that because constable [xyz] was lyingCor Machan on 17.4.2006 at about 04.50 hrs. and was sleeping Iawoke him and told him to keep watch upon the weapons andsets otherwise there can be stolen and I further told him that if hesleeps during duty hours then I would report (sic) him to the (sic)Commandant. I say that because I gave the warning to [xyz] forhis negligence in duty he made false allegation against me forDtaking revenge.”

The above extract would make it abundantly clear that there wasno ambiguity, insofar as the respondent is concerned that the allegedconduct with which he was charged, had taken place in the early hoursof 17 April 2006. As matter of fact, the defence of the respondent alsoEpertains to the same incident on 17 April 2006 and the respondentcontended that the complainant had levelled false allegation upon beingfound to be sleeping while on duty.

15. In this backdrop, it becomes necessary to emphasize that theadditional RoE which was ordered by the Commandant was essentiallyFin the nature of clarification having regard to the discrepancy aboutthe date of the incident namely, whether it was on 16 or 17 April 2006.This was evidently because the incident took place on the interveningnight of 16 and 17 April. As noted above, the respondent himself has inthe course of his statutory petition, sought to highlight the events whichGhad transpired in the early hours of 17 April 2006 when he was on duty.After settling the issue of insufficiency of evidence, we advert to thetwo questions of law that have been raised in the appeal: (i) whether theCommandant has the jurisdiction to direct preparation of an additionalRoE; and (ii) whether the SSFC is under an obligation to record reasonsunder Rule 159 of the BSF Rules 1969 when it determines the guilt of anHaccused.

C.1 Jurisdiction of the Commandant

16. The unamended Rule 51 of the BSF Rules 1969 provided as

follows:

“51. Disposal of case against an enrolled person byCommandant after record or abstract of evidence.-

(1) Where an officer has been detailed to prepare the record ofevidence or to make an abstract thereof, he shall forward thesame to the Commandant.

(2) The Commandant may, after going through the record orabstract of evidence including additional evidence:

(i)Dismiss the charge, or

(ii)rehear the charge and award one of the summarypunishments; or

(iii)try the accused by Summary Security Force CourtDwhere he is empowered so to do, or

(iv)apply to competent officer or authority to convenea Court for the trial of the accused.”

Under sub-rule (1) of Rule 51, an officer who is detailed to preparethe RoE has to forward it to the Commandant[8]. Thereafter under Rule51 (2), the Commandant may, after going through the record, proceedwith any of the course of actions detailed in (i) to (iv), which includestrying the accused by an SSFC. The High Court has noticed that as aresult of the amendment in 2011[9], what is previously included in Rule51(2) has been, in substance, incorporated in Rule 51(3) of the amendedBSF Rules 1969. new sub-rule (2) has been introduced which readsas follows:

“(2) if the Commandant considers the evidence recordedinsufficient but considers that further evidence may be available,he may remand the case for recording additional evidence.”

8 Section 2(1)(f) of the BSF Act 1968 defines it thus: “2. (1)(f) ‘Commandant’, whenused in any provision of this Act with reference to any unit of the Force, means theofficer whose duty it is under the rules to discharge with respect to that unit, thefunctions of Commandant in regard to matters of the description referred to in thatprovision”

9 S.O. 2628(E) on 25 November 2011

AThe amended Rule 51 of the BSF Rules 1969 thus provides forthe following:

“51. Disposal of case against enrolled person by Commandantafter record or abstract of evidence.—

(1) Where an officer has been detailed to prepare the record ofBevidence or to make an abstract thereof, he shall forward thesame to the Commandant.

(2) If the Commandant considers the evidence recorded insufficientbut considers that further evidence may be available, he mayremand the case for recording additional evidence.

(3) The Commandant may, after going through the record orabstract of evidence including additional evidence, if any:—

(i) dismiss the charge after recording the reasons thereof[sic]; or

(ii) rehear the charge and award summary punishments; or

(iii) try the accused by Summary Security Force Court wherehe is empowered so to do:

Provided that the Commandant while convening Court mayreframe the charge; or

E(iv) apply to competent officer or authority to convene Courtfor the trial of the accused.”

17. The High Court inferred that “the incorporation of theamendment demonstrates that at the relevant point of time, theCommandant did not have the power to direct additional evidence to beFrecorded”. Yet, the High Court also observed that the 2011 amendmentto the BSF Rules 1969 could be of clarificatory nature:

“At the same time, the amendment can be regarded to beclarificatory in nature, in the sense that it was not required to bespecifically provided but was inherent to the general authority ofGthe Commandant; and the amendment has been brought by wayof abundant caution and to clarify the powers of the Commandantinstead of conferring any new authority unto such officer.”

However, the High Court declined to inquire further into this lineof interpretation on the ground that “there is no submission which hasbeen put forth by either side to throw any light on the relevant provision”.H

On this ground, the Division Bench held that the view of the SingleJudge “appears to be possible view” and does not call for interference.The legal position needs to be analysed.

18. Rule 48 of the BSF Rules 1969 provides for the preparation ofa record of evidence:

“48. Record of evidence.- (1) The officer ordering the recordof evidence may either prepare the record of evidencehimself or detail another officer to do so.

(2) The witnesses shall give their evidence in the presence of theaccused and the accused shall have right to cross-examine allwitnesses who give evidence against him:

Provided that where statement of any witness at court of inquiryis available, examination of such witness may be dispensed withand the original copy of the said statement may be taken on record.A copy thereof shall be given to the accused and he shall have theright to cross-examine if he was not afforded an opportunity tocross -examine the witness at the Court of Inquiry.

(3) After all the witnesses against the accused have beenexamined, he shall be cautioned in the following terms; “You maymake statement if you wish to do so, you are not bound to makeone and whatever you state shall be taken down in writing andmay be used in evidence.” After having been cautioned in theaforesaid manner whatever the accused states shall be taken downin writing.

(4) The accused may call witnesses in defence and the officerrecording the evidence may ask any question that may benecessary to clarify the evidence given by such witnesses.

(5) All witnesses shall give evidence on oath or affirmation:Provided that, no oath or affirmation shall be given to the accusednor shall he be cross-examined.

(6) (a) The statements given by witnesses shall ordinarily berecorded in narrative form and the officer recording the evidencemay, at the request of the accused, permit any portion of theevidence to be recorded in the form of question and answer.

(b) Witnesses shall sign their statements after the same have beenread over and explained to them.

A(6A) The provisions of section 89 of the Act shall apply forprocuring the attendance of the witnesses before the officerpreparing the Record of Evidence.

(7) Where witness cannot be compelled to attend or is notavailable or his attendance cannot be procured without an undueBexpenditure of time or money and after the officer recording theevidence has given certificate in this behalf, written statementsigned by such witness may be read to the accused and includedin the record of evidence.

(8) After the recording of evidence is completed the officerCrecording the evidence shall give certificate in following form :-“Certified that the record of evidence ordered by.....Commandant... .....................................................was madein the presence and hearing of the accused and the provisions ofrule 48 have been complied with”.

(emphasis supplied)

19. Rule 48 of the BSF Rules 1969 clarifies that an officer orderingthe RoE may either prepare it himself or detail any officer to do so. Thewitnesses have to give their evidence in the presence of the accusedwho has right to cross-examine them. The accused may call witnessesEin defence. An officer recording the evidence is empowered under sub-rule (4) of Rule 48 to ask question that may be necessary to clarify theevidence given by witness. It is on the basis of the RoE (or the abstractof evidence, as the case may be) that the Commandant is empowered totake the actions which are referred to in the unamended sub-rule (2) ofFRule 51, as it then stood. Under Rule 51(2) which was applicable then,the Commandant was empowered to dismiss the charge; re-hear thecharge and award one of the summary punishments; try the accused bySSFC; or apply to competent officer or authority to convene courtfor the trial of the accused.

20. The unamended sub-rule (2) of Rule 51, as was applicable toGthe facts of the present case, cannot be construed to impose prohibitionon the Commandant to seek clarification, and for that purpose of orderingan additional RoE, to facilitate or aid the further processing of the case.Rule 51(2) does not contain any such prohibition. On the contrary, sub-rule(1) to Rule 48 indicates that the officer ordering the RoE may eitherHprepare an RoE himself or detail another officer to do so. Sub-rule(4) to

Rule 48 empowers the officer to ask any question that may be necessaryto clarify the evidence. If such power is conferred upon the officerordering the RoE while preparing the RoE himself, it would follow bynecessary implication, that such power is available to the Commandanteven when the RoE is ordered to be prepared by another officer. Thepurpose of seeking such clarification is to facilitate the emergence ofthe truth as regards the genesis of an incident which is the subject matterof the enquiry. The mere fact that specific provision empowering theCommandant to call for further evidence was introduced in 2011 cannotresult in the conclusion that absent such power being expresslyincorporated, the power did not vest in the Commandant.21. An amendment to statute or to statutory rules may often beclarificatory in nature. It is clarificatory in the sense that it expresslyrecognizes power that already vests in the authority. In thosecircumstances, when an amendment is purely clarificatory or declaratoryin nature, it is deemed to operate retrospectively.[10] For instance, aConstitution Bench in Shyam Sunder v. Ram Kumar[11 ]held that anamending act or declaratory act need not explicitly mention itsdeclaratory nature to be operative retrospectively. Speaking on behalfof the Constitution Bench, Justice V N Khare (as he then was) noted:

“39. Lastly, it was contended on behalf of the appellants that theamending Act whereby new Section 15 of the Act has beensubstituted is declaratory and, therefore, has retroactive operation.Ordinarily when an enactment declares the previous law, it requiresto be given retroactive effect. The function of declaratorystatute is to supply an omission or to explain previousstatute and when such an Act is passed, it comes into effectwhen the previous enactment was passed. The legislativepower to enact law includes the power to declare what was theprevious law and when such declaratory Act is passed, invariablyit has been held to be retrospective. Mere absence of use ofthe word “declaration” in an Act explaining what was thelaw before may not appear to be declaratory Act but if the

10 P Singh, Principles of Statutory Interpretation (13th edn, 2012); Commissioner ofIncome Tax v. Vatika Township, (2015) 1 SCC 1, para 32 (Constitution Bench);Ghanshyam Mishra and Sons v. Edelweiss Asset Reconstruction Company, 2021SCC OnLine SC 313 (three-judge Bench)11 (2001) 8 SCC 24

1124SUPREME COURT REPORTS

Acourt finds an Act as declaratory or explanatory, it has tobe construed as retrospective. Conversely where statuteuses the word “declaratory”, the words so used may not besufficient to hold that the statute is declaratory Act as wordsmay be used in order to bring into effect new law.”

(emphasis supplied)

In Zile Singh v. State of Haryana[12], Chief Justice R Lahoti,speaking for three-judge bench elaborated on the principle ofretrospective operation applicable to clarificatory statutes thus:

“13…. Unless there are words in the statute sufficient to showCthe intention of the legislature to affect existing rights, it is deemedto be prospective only — “nova constitutio futuris formamimponere debet non praeteritis” — new law ought to regulatewhat is to follow, not the past. (See Principles of StatutoryInterpretation by Justice G.P. Singh, 9th Edn., 2004 at p.D438.) It is not necessary that an express provision be madeto make statute retrospective and the presumption againstretrospectivity may be rebutted by necessary implication especiallyin case where the new law is made to cure an acknowledgedevil for the benefit of the community as whole (ibid., p. 440).

E14. The presumption against retrospective operation is notapplicable to declaratory statutes…. In determining, therefore,the nature of the Act, regard must be had to the substance ratherthan to the form. If new Act is “to explain” an earlier Act, itwould be without object unless construed retrospectively.An explanatory Act is generally passed to supply an obviousFomission or to clear up doubts as to the meaning of the previousAct. It is well settled that if statute is curative or merelydeclaratory of the previous law retrospective operation is generallyintended…. An amending Act may be purely declaratory to cleara meaning of provision of the principal Act which was alreadyGimplicit. clarificatory amendment of this nature will haveretrospective effect (ibid., pp. 468-69).

16. Where statute is passed for the purpose of supplyingan obvious omission in former statute or to “explain”

former statute, the subsequent statute has relation back tothe time when the prior Act was passed. The rule againstretrospectivity is inapplicable to such legislations as areexplanatory and declaratory in nature.”

(emphasis supplied)

22. This Court has often recognized amendments to service rulesas clarificatory in nature, thereby having retrospective operation[13]. Inour view, the power to order additional RoE is incidental to realize thepurpose of Rules 48 and 51. In any event, residual powers under Rule 6would protect this action. Since the express power to direct additionalRoE under Rule 51 was incidental to the exercise of the existing powers,the amendment to Rule 51 which was brought in 2011 must be construedto be clarificatory. In fact, the High Court proceeded on this line ofanalysis by observing that the amendment is clarificatory. However, itchose to not take it to its logical conclusion on the tenuous ground that nosubmission had been put forth by either side to throw light on the relevantprovision.

23. In our view, and for the reasons that we have indicated, thefact that the incident took place in the present case prior to the date ofthe amendment, i.e., 25 November 2011, would make no difference oncethe amendment, in the true sense of the expression, is construed to beclarificatory in nature. Against this backdrop, the Commandant was actingwithin his jurisdiction in ordering an additional RoE to clarify the date ofthe incident. As we have seen earlier, strictly speaking, this is not caseof insufficient evidence. During the course of the RoE, the respondenthimself stood by the complainant’s version of the date and time on whichthe alleged incident took place, which was the night when the respondentwas detailed to Naka duty as Head Constable. The only issue for whichadditional RoE was warranted was in regard to the confusion in regardto the precise date on which the incident took place, considering theconfusion caused by the incident having occurred on the interveningnight of 16 and 17 April 2006. Save and except for this, the RoE whichwas prepared initially was comprehensive in nature and contained allnecessary details of the incident, which were sufficient to sustain thefinal conclusion.

13 S Bhattacharjee v. S Majumdar, (2007) 10 SCC 513 (two-judge Bench); O PLather v. Satish Kumar Kakkar, (2001) 3 SCC 110 (two-judge Bench)

A24. The submission of the respondent that the Commandant hasusurped the power of superior officer or authority under Rule 59 ispatently incorrect. Rule 59 provides for the action which has to be takenby superior authority on receiving the application for convening court.In that context, Rule 59(1) provides as follows:

B“59. Action by Superior Authority on receiving anapplication for convening court.- (1) As soon as superiorofficer receives an application for convening court, he shallscrutinise the charge and the evidence against the accused, wherenecessary in consultation with the Chief Law Officer or LawOfficer and he:C

(i) shall direct the Commandant to dismiss the charge where theevidence against the accused is insufficient and further evidenceis not likely to be available and may direct him to do so if heconsiders it inadvisable to proceed with the trial; or

(ii) may return the case to Commandant for being tried by aSummary Security Force Court or being dealt with summarily ifhe considers that the same can be adequately so tried or dealtwith; or

(iii) may return the case for recording further evidence, if heEconsiders the evidence recorded insufficient but considers thatfurther evidence may be available; or

(iv) may dispose of the case administratively under chapter IV ofthese rules if competent to do so, or refer it to the competentFauthority for disposal, where he is of the opinion that the chargeagainst person is serious but the trial by Security Force Court isinexpedient or not reasonably practicable for the reasons to berecorded in writing; or

(v) may, after recording the reasons, dispose of the caseGadministratively under chapter XIV of these rules if competentto do so, or refer it to the competent authority for disposal, wherehe is of the opinion that the charge against the officer or thesubordinate officer, as the case may be, does not deserve to bedismissed but also not so serious as to warrant trial by SecurityForce Court.

(2) (a) In any other case he may either himself convene Courtor if he considers that higher type of Court should be convenedand he is not empowered to convene such Court, forward thecase to higher authority with recommendation that such Courtmay be convened.

(b) The higher authority on receiving the case may exercise anyof the powers given in sub-rule (1) of this rule:

Provided that superior officer or higher authority beforeconvening General Security Force Court or Petty SecurityForce Court shall take the advice of the Chief Law Officer or aLaw officer.

Provided further that the superior authority or higher authoritywhile convening Court may reframe the charge sheet on whichthe accused is to be tried.”

Clause (iii) of sub-rule (1) of Rule 59 indicates that one of thecourses of action open to the superior authority is to return the case forrecording evidence if the evidentiary record is considered to be insufficientbut the superior authority considers that further evidence may be available.The provisions of Rule 59(1)(iii) cannot be stretched to mean that absentthe conferment of specific or express power to the Commandant insimilar terms, the Commandant had no jurisdiction to seek clarificationor order an additional RoE. The power of the Commandant to do so isimplicit, as noticed earlier in Rules 48 and 51, read with Rule 6. Hence,it cannot be postulated that by ordering an additional RoE, theCommandant had usurped the power of superior authority or actedcontrary to the jurisdiction conferred upon him.

C.2 Recording of reasons

25. The second ground on which the Division Bench of the HighCourt held the findings of the SSFC to be vitiated is that under Rule 148,the SSFC was required to furnish at least “a modicum of reasons”.Rules 148 and 149 provide as follows:

“148. Verdict.- The Court shall after the evidence for prosecutionand defence has been heard, give its opinion as to whether theaccused is guilty or not guilty of the charge or charges.

149. Finding.- (1) The finding on every charge upon whichthe accused is arraigned shall be recorded and except as

[2021] 11 S.C.R.

Amentioned in these rules shall be recorded simply as afinding of “Guilty” or of “Not Guilty”.

(2) When the Court is of opinion as regards any charge that thefacts proved do not disclose the offence charged or any offenceof which he might under the Act legally be found guilty on theBcharge as laid, the Court shall find the accused “Not Guilty” ofthat charge.

(3) When the Court is of opinion as regards any charge that thefacts found to be proved in evidence differ materially from thefacts alleged in the statement of particulars in the charge, but areCnevertheless sufficient to prove the offence stated in the charge,and that the difference is not so material as to have prejudiced theaccused in his defence, it may, instead of finding of “Not Guilty”record special finding.

(4) The special finding may find the accused guilty on chargesubject to the statement of exceptions or variations specifiedDtherein.

(5) The Court shall not find the accused guilty on more than oneof two or more charges laid in the alternative, even if convictionupon one charge necessarily connotes guilt upon the alternativecharge or charges.”E

(emphasis supplied)

The provisions of Rule 149 of the BSF Rules 1969 came up forinterpretation before two-judge Bench of this Court in Union of Indiav. Dinesh Kumar[14]. This Court was considering over sixty-two appealsFfrom members of the BSF on the sole ground that orders of the SSFCwere illegal since they did not state the reasons for arriving at theirconclusion. Speaking on behalf of this Court, Justice V S Sirpurkar framedthe issues for consideration as follows:

“3. The common questions that falls for consideration in all theseappeals can be stated as under:G

Whether the Summary Security Force Court (SSFC) is requiredto give reasons in support of its verdict?

Similarly,

Whether the appellate authority under Section 117(2) is requiredto give reasons while considering the correctness, legality orpropriety of the order passed?”

The Court noted that under the scheme of the BSF Act 1968,Section 64 provides for three kinds of courts, namely: (a) General SecurityForce Courts; (b) Petty Security Force Courts; and (c) Summary SecurityForce Courts. Under Section 74(4) the SFCC may pass any sentenceexcept the sentence of death or imprisonment for term exceeding thetime limits specified in sub-Section (5), which indicated that the SSFChad the jurisdiction to try all offences, but had limited powers with respectto the sentence[15]. This Court observed that Rule 149 forms part ofChapter XI of the BSF Rules 1969 which deals with the procedure forthe SSFC. In contradistinction, Chapter IX of the Rules deals with theprocedure for allSecurity Force Courts. Chapter IX includes the amendedRule 99(1), which mandates the recording of reasons. After theamendment in 2003, the amended Rule 99(1) reads as follows:

“99. Record and announcement of finding.—(1) The findingon every charge upon which the accused is arraigned shall berecorded and except as provided in these Rules, shall be recordedsimply as finding of ‘Guilty’ or of ‘Not Guilty’. After recordingthe finding on each charge, the Court shall give brief reasonsin support thereof. The Law Officer or, if there is none, thePresiding Officer shall record or cause to be recorded such briefreasons in the proceedings. The above record shall be signed anddated by the Presiding Officer and the Law Officer, if any.”

Therefore, under Rule 99(1), it became necessary for the SSFCto give brief reasons in support of the findings, where the procedureof the SSFC was being followed.”

(emphasis supplied)

Noting the lack of an amendment to Rule 149, this Court held:“17. It is needless to mention that Rule 99 will not apply toSSFC. The procedure for the SSFC is provided in ChapterXI (Rules 133 to Rule 161), which alone is relevant here.It must be noted here that though Rule 99 was amendedrequiring authority of General Security Force Court or PettySecurity Force Court to give reasons in support of their

Afindings, no such amendment was made to Rule 149 whichis applicable in the case of the SSFC. Shri Malhotra, learnedAdditional Solicitor General, therefore, rightly argued that sinceRule 149 was left intact in contradistinction to Rule 99, theauthorities of the SSFC were not required to give reasons in supportof their findings in all these cases and the High Court has gravelyBerred in setting aside the orders of authorities on that count alone.”

(emphasis supplied)

While arriving at the above conclusion in Dinesh Kumar (supra),the Court also placed reliance on the decision of Constitution Bench inCS N Mukherjee v. Union of India[16].

26. The Constitution Bench in S N Mukherjee (supra)hadaffirmed and followed the decision of Constitution Bench of this Courtin Som Datt Datta v. Union of India[17 ]which had considered the dutyof furnishing reasons on the Chief of Army Staff and the UnionGovernment when confirming the proceedings of Court-martial underDthe Army Act, 1950. The Court, in Som Datt Datta (supra), held thatthe requirement of furnishing reasons does not apply in every caseconcerning finding by statutory tribunal. Justice V Ramaswami (I),speaking on behalf of the Constitution Bench, held:

“9. In the present case it is manifest that there is no expressEobligation imposed by Section 164 or by Section 165 of the ArmyAct on the confirming authority or upon the Central Governmentto give reasons in support of its decision to confirm the proceedingsof the Court Martial. Mr Dutta has been unable to point out anyother section of the Act or any of the Rule made therein fromFwhich necessary implication can be drawn that such duty iscast upon the Central Government or upon the confirming authority.Apart from any requirement imposed by the statute or statutoryrule either expressly or by necessary implication, we are unableto accept the contention of Mr Dutta that there is any generalprinciple or any rule of natural justice that statutory tribunalGshould always and in every case give reasons in support of itsdecision.

16 (1990) 4 SCC 594 (“S N Mukherjee”)H17 AIR 1969 SC 414 (“Som Datt Datta“)

As already stated, there is no express obligation imposed in thepresent case either by Section 164 or by Section 165 of the IndianArmy Act on the confirming authority or on the CentralGovernment to give reasons for its decision. We have also notbeen shown any other section of the Army Act or any otherstatutory rule from which the necessary implication can be drawnthat such duty is cast upon the Central Government or upon theconfirming authority. We, therefore, reject the argument of thepetitioner that the order of the Chief of the Army Staff, datedMay 26, 1967 confirming the finding of the Court Martial underSection 164 of the Army Act or the order of the CentralGovernment dismissing the appeal under Section 165 of the ArmyAct are in any way defective in law.”

27. Following the decision in Som Datt Datta (supra), theConstitution Bench in S N Mukherjee (supra) considered the provisionsof the Army Act and concluded that none of the provisions, eitherexpressly or by necessary implication, confer duty on the aforesaidauthorities to furnish reasons. Justice S Agrawal, speaking on behalfof the Constitution Bench, analysed the provisions of the Army Act 1950on the anvil of the principles of natural justice:

“36. Reasons, when recorded by an administrative authority in anorder passed by it while exercising quasi-judicial functions, wouldno doubt facilitate the exercise of its jurisdiction by the appellateor supervisory authority. But the other considerations, referred toabove, which have also weighed with this Court in holding that anadministrative authority must record reasons for its decision, areof no less significance. These considerations show that therecording of reasons by an administrative authority serves asalutary purpose, namely, it excludes chances of arbitrariness andensures degree of fairness in the process of decision-making.The said purpose would apply equally to all decisions and itsapplication cannot be confined to decisions which are subject toappeal, revision or judicial review. In our opinion, therefore, therequirement that reasons be recorded should govern the decisionsof an administrative authority exercising quasi-judicial functionsirrespective of the fact whether the decision is subject to appeal,revision or judicial review. It may, however, be added that it is notrequired that the reasons should be as elaborate as in the decision

of court of law. The extent and nature of the reasons woulddepend on particular facts and circumstances. What is necessaryis that the reasons are clear and explicit so as to indicate that theauthority has given due consideration to the points in controversy.The need for recording of reasons is greater in case where theorder is passed at the original stage. The appellate or revisionalauthority, if it affirms such an order, need not give separate reasonsif the appellate or revisional authority agrees with the reasonscontained in the order under challenge.

39. The object underlying the rules of natural justice “is to preventmiscarriage of justice” and secure “fair play in action”. As pointedout earlier the requirement about recording of reasons for itsdecision by an administrative authority exercising quasi-judicialfunctions achieves this object by excluding chances of arbitrarinessand ensuring degree of fairness in the process of decision-making.Keeping in view the expanding horizon of the principles of naturaljustice, we are of the opinion, that the requirement to record reasoncan be regarded as one of the principles of natural justice whichgovern exercise of power by administrative authorities. The rulesof natural justice are not embodied rules. The extent of theirapplication depends upon the particular statutory frameworkwhereunder jurisdiction has been conferred on the administrativeauthority. With regard to the exercise of particular power by anadministrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power,may feel that it would not be in the larger public interest that thereasons for the order passed by the administrative authority berecorded in the order and be communicated to the aggrieved partyand it may dispense with such requirement. It may do so bymaking an express provision to that effect as those contained inthe Administrative Procedure Act, 1946 of U.S.A. and theAdministrative Decisions (Judicial Review) Act, 1977 of Australiawhereby the orders passed by certain specified authorities areexcluded from the ambit of the enactment. Such an exclusion canalso arise by necessary implication from the nature of the subjectmatter, the scheme and the provisions of the enactment. The publicinterest underly-ing such provision would outweigh the salutarypurpose served by the requirement to record the reasons. Thesaid requirement cannot, therefore, be insisted upon in such acase.”

The Court conducted detailed analysis of the provisions of theArmy Act 1950 and held there was no requirement of furnishing reasonsfor the Chief of Army Staff or the Union Government when it confirmedproceedings of court-martial:

44. From the provisions referred to above it is evident that thejudge-advocate plays an important role during the course of trialat general court martial and he is enjoined to maintain an impartialposition. The court martial records its findings after the judge-advocate has summed up the evidence and has given his opinionupon the legal bearing of the case. The members of the courthave to express their opinion as to the finding by word of mouthon each charge separately and the finding on each charge is to berecorded simply as finding of “guilty” or of “not guilty”. It is alsorequired that the sentence should be announced forthwith in opencourt. Moreover Rule 66(1) requires reasons to be recorded forits recommendation in cases where the court makes arecommendation to mercy. There is no such requirement in otherprovisions relating to recording of findings and sentence. Rule66(1) proceeds on the basis that there is no such requirementbecause if such requirement was there it would not have beennecessary to make specific provision for recording of reasonsfor the recommendation to mercy. The said provisions thusnegative requirement to give reasons for its finding and sentenceby the court martial and reasons are required to be recorded onlyin cases where the court martial makes recommendation tomercy. In our opinion, therefore, at the stage of recording offindings and sentence the court martial is not required to recordits reasons and at that stage reasons are only required for therecommendation to mercy if the court martial makes such arecommendation.”

Accordingly, on an analysis of the scope and statutory purpose ofthe Army Act, 1950, the Constitution Bench in S N Mukherjee (supra)concluded that there was no requirement of furnishing reasons.

ABC

1134SUPREME COURT REPORTS

A28. After adverting to the principles enunciated by the ConstitutionBench in S N Mukherjee (supra) and Som Datt Datta (supra), thisCourt in Dinesh Kumar (supra) in the context of Rule 149 of the BSFRules 1969, held:

“23.In this backdrop, it is clear that the provisions for the SSFCBand the appellate authority are pari materia, more particularly incase of Rule 149 and Section 117(2) of the Act, with the provisionswhich were considered in both the above authorities. Therefore,there cannot be any escape from the conclusion that as heldby the Constitution Bench, the reasons would not berequired to be given by the SSFC under Rule 149 or by theCappellate authority under Section 117(2) of the Act. Thisposition is all the more obtained in case of SSFC, particularly,as the legislature has chosen not to amend Rule 149, thoughit has specifically amended Rule 99 w.e.f. 9-7-2003. It waspointed out that in spite of this, some other view was taken by theDDelhi High Court in Nirmal Lakra v. Union of India [(2003) 102DLT 415] . However, it need not detain us, since Rule 149 did notfall for consideration in that case. Even otherwise, we would bebound by law declared by the Constitution Bench in S.N.Mukherjee v. Union of India [(1990) 4 SCC 594 : 1990 SCC(Cri) 669 : 1991 SCC (L&S) 242 : (1991) 16 ATC 445] .”E

(emphasis supplied)

29. The decision in Dinesh Kumar (supra) which is based uponthe view of the Constitution Bench in S N Mukherjee (supra) andSom Datt Dutta (supra) provides clear answer and negates the findingFof the High Court on the mandate of recording reasons by the SSFCwhen delivering its finding under Rule 149. Rule 149 does not eitherexpressly or by necessary implication impose mandate on the SSFC torecord reasons when it renders its findings of guilt on case referred toit.

ConclusionG

30. In the above circumstances, the High Court was in error onboth the grounds which have weighed in its ultimate decision. Therewas no error of jurisdiction on the part of the Commandant in seekingclarification in regard to the date of the incident by calling for an additionalRoE. As we have noted, the respondent was not prejudiced since heH

understood the allegations against him as pertaining to the events whichtranspired on the night when he was on duty, intervening 16 and 17 April2006, and more specifically in the early hours of 17 April 2006.

31. On the second aspect, the decision of the High Court hasfailed to notice the judgment of this Court in Dinesh Kumar(supra)[which in turn is based on paragraph 40 of the principles enunciatedby the Constitution Bench in S N Mukherjee (supra)]. The chargeagainst the respondent was found to have been duly substantiated byevidence on the record. While dealing with the respondent’s statutorypetition under Section 117, the Director-General of BSF, reduced thequantum of sentence. He was empowered to do so in accordance withthe provisions of Section 48 of the BSF Act 1968. Section 48 provides asfollows:

“48. Punishments awardable by Security Force Courts.—1) Punishments may be inflicted in respect of offences committedby persons subject to this Act and convicted by Security ForceCourts according to the scale following, that is to say,— (a) death;(b) imprisonment which may be for the term of life or any otherlesser term but excluding imprisonment for term not exceedingthree months in Force custody; (c) dismissal from the service; (d)imprisonment for term not exceeding three months in Forcecustody; (e) reduction to the ranks or to lower rank or grade orplace in the list of their rank in the case of an under-officer; (f)forfeiture of seniority of rank and forfeiture of all or any part ofthe service for the purpose of promotion; (g) forfeiture of servicefor the purpose of increased pay, pension or any other prescribedpurpose; (h) fine, in respect of civil offences; (i) severe reprimandor reprimand except in the case of persons below the rank of anunder-officer; (j) forfeiture of pay and allowances for periodnot exceeding three months for an offence committed on activeduty; (k) forfeiture in the case of person sentenced to dismissalfrom the service of all arrears of pay and allowances and otherpublic money due to him at the time of such dismissal; (l) stoppageof pay and allowances until any proved loss or damage occasionedby the offence for which he is convicted is made good. (2) Eachof the punishments specified in sub-section (1) shall be deemed tobe inferior in degree to every punishment preceding it in the abovescale.”

DEF

AThus, the punishment which has been imposed on the respondentis in compliance with clauses (a) to (g) of Section 48(1). For the abovereasons, we are of the view that the appeal should be allowed.

32. Before we conclude our analysis, we would also like to highlighta rising trend of invalidation of proceedings inquiring into sexualBmisconduct, on hyper-technical interpretations of the applicable servicerules. For instance, the Sexual Harassment of Women at Workplace(Prevention, Prohibition, and Redressal) Act 2013 penalizes severalmisconducts of sexual nature and imposes mandate on all public andprivate organizations to create adequate mechanisms for redressal.However, the existence of transformative legislation may not come toCthe aid of persons aggrieved of sexual harassment if the appellatemechanisms turn the process into punishment. It is important that courtsuphold the spirit of the right against sexual harassment, which is vestedin all persons as part of their right to life and right to dignity underArticle 21 of the Constitution. It is also important to be mindful of theDpower dynamics that are mired in sexual harassment at the workplace.There are several considerations and deterrents that subordinateaggrieved of sexual harassment has to face when they consider reportingsexual misconduct of their superior. In the present case, the complainantwas constable complaining against the respondent who was the headconstable – his superior. Without commenting on the merits of the case,Eit is evident that the discrepancy regarding the date of occurrence wasof minor nature since the event occurred soon after midnight and onthe next day. Deeming such trivial aspect to be of monumental relevance,while invalidating the entirety of the disciplinary proceedings against therespondent and reinstating him to his position renders the complainant’sFremedy at nought. The history of legal proceedings such as these is amajor factor that contributes to the deterrence that civil and criminalmechanisms pose to persons aggrieved of sexual harassment. The HighCourt, in this case, was not only incorrect in its interpretation of thejurisdiction of the Commandant and the obligation of the SSFC to furnishreasons under the BSF Act 1968 and Rules therein, but also demonstratedGa callous attitude to the gravamen of the proceedings. We implore courtsto interpret service rules and statutory regulations governing theprevention of sexual harassment at the workplace in manner that metesout procedural and substantive justice to all the parties.

33. The appeal is accordingly allowed and the impugned judgmentHand order of the Division Bench of the Calcutta High Court of 18

December 2018 and of the Single Judge of the Calcutta High Court on 7AMay 2009 are set aside. In consequence, the writ petition filed by therespondent shall stand dismissed.

34. The appeal is disposed of in the above terms.

35. Pending application(s), if any, shall stand disposed of.

Ankit Gyan

Appeal disposed of.