2021 (12) TMI 1530 - SC - Indian Laws

Appeal allowed; disciplinary proceedings reinstated after additional evidence clarified incident date; SSFC not required to record reasons under BSF Rules

The SC allowed the appeal, set aside the Calcutta HC orders that had quashed disciplinary proceedings, and dismissed the respondent's writ petition. The ... Quashing of disciplinary proceedings against the respondent and reinstated him to his initial position in the BSF - offence constituting “disgraceful conduct” under Section 24(a) of the Border Security Force Act 1968 - whether the Commandant prior to the amendment of Rule 51 in 2011 had jurisdiction to direct the preparation of an additional RoE (record of evidence)? - whether the finding of guilt which has been recorded by the SSFC stands vitiated in the absence of reasons? HELD THAT:- The fact that the incident took place in the present case prior to the date of the amendment, i.e., 25 November 2011, would make no difference once the amendment, in the true sense of the expression, is construed to be clarificatory in nature. Against this backdrop, the Commandant was acting within his jurisdiction in ordering an additional RoE to clarify the date of the incident. As we have seen earlier, strictly speaking, this is not a case of insufficient evidence. During the course of the RoE, the respondent himself stood by the complainant‘s version of the date and time on which the alleged incident took place, which was the night when the respondent was detailed to Naka duty as Head Constable. The only issue for which additional RoE was warranted was in regard to the confusion in regard to the precise date on which the incident took place, considering the confusion caused by the incident having occurred on the intervening night of 16 and 17 April 2006. Save and except for this, the RoE which was prepared initially was comprehensive in nature and contained all necessary details of the incident, which were sufficient to sustain the final conclusion. Clause (iii) of sub-rule (1) of Rule 59 indicates that one of the courses of action open to the superior authority is to return the case for recording evidence if the evidentiary record is considered to be insufficient but the superior authority considers that further evidence may be available. The provisions of Rule 59(1)(iii) cannot be stretched to mean that absent the conferment of a specific or express power to the Commandant in similar terms, the Commandant had no jurisdiction to seek clarification or order an additional RoE. The power of the Commandant to do so is implicit, as noticed earlier in Rules 48 and 51, read with Rule 6. Hence, it cannot be postulated that by ordering an additional RoE, the Commandant had usurped the power of a superior authority or acted contrary to the jurisdiction conferred upon him. Recording of reasons - HELD THAT:- Rule 149 does not either expressly or by necessary implication impose a mandate on the SSFC to record reasons when it renders its findings of guilt on a case referred to it. The High Court was in error on both the grounds which have weighed in its ultimate decision. There was no error of jurisdiction on the part of the Commandant in seeking clarification in regard to the date of the incident by calling for an additional RoE. The respondent was not prejudiced since he understood the allegations against him as pertaining to the events which transpired on the night when he was on duty, intervening 16 and 17 April 2006, and more specifically in the early hours of 17 April 2006 - The High Court, in this case, was not only incorrect in its interpretation of the jurisdiction of the Commandant and the obligation of the SSFC to furnish reasons under the BSF Act 1968 and Rules therein, but also demonstrated a callous attitude to the gravamen of the proceedings. The impugned judgment and 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 7 May 2009 are set aside. In consequence, the writ petition filed by the respondent shall stand dismissed - Appeal allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether the Commandant, prior to the 2011 amendment to Rule 51 of the Border Security Force Rules, 1969, had jurisdiction to direct the preparation of an additional Record of Evidence (RoE) to clarify discrepancies in the original RoE. 2. Whether a Summary Security Force Court (SSFC) is obliged under Rule 149 (and related provisions) to record reasons in support of its finding of guilt, and whether the absence of such reasons vitiates the conviction and punishment. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Jurisdiction of the Commandant to order additional RoE Legal framework: Rules 48 and 51 of the BSF Rules, 1969 (pre-amendment Rule 51(2)); Rule 6 (residual power); Rule 59 (powers of superior authority on receiving application to convene a court); statutory definition of 'Commandant'. Precedent treatment: Principles on clarificatory/amendatory legislation and retrospective operation of clarificatory amendments drawn from authority on statutory interpretation (including decisions recognizing clarificatory nature of amendments to service rules). No direct precedent restricting Commandant's implicit powers was applied to negate such power. Interpretation and reasoning: Rule 48 authorises the officer ordering the RoE to prepare it himself or to detail another officer, permits cross-examination and empowers the officer recording evidence to ask questions necessary to clarify evidence. Rule 51(2), as then framed, empowered the Commandant to act after going through the RoE (dismiss, rehear, try by SSFC, or apply to a competent officer to convene a court). The power to seek clarification via additional evidence is implicit and incidental to the effective exercise of the powers vested in the Commandant under Rules 48 and 51 and is further supported by residual authority under Rule 6. The later insertion in 2011 of an express provision authorising remand for additional evidence is clarificatory and declaratory of an existing power rather than the conferral of a new power; clarificatory amendments operate retrospectively where they only explain or record previously existing law. Rule 59(1)(iii), which expressly allows a superior authority to return a case for further evidence, does not implicitly oust the Commandant's ability to seek clarificatory evidence when necessary to resolve manifest discrepancies in the RoE. Ratio vs. Obiter: Ratio - the Commandant had jurisdiction to order an additional RoE prior to the 2011 amendment as an incidental/implicit power under Rules 48 and 51 read with Rule 6, and the 2011 amendment is clarificatory. Obiter - broader policy observations about legislative drafting and comparative procedural structures. Conclusions: The Commandant acted within jurisdiction in directing an additional RoE to clarify a narrow discrepancy (date/time) arising from an incident occurring across midnight. The absence of an express provision before 2011 did not render the action ultra vires; the amendment merely clarified an existing power. Issue 2 - Obligation of SSFC to record reasons for findings Legal framework: Rules 148-149 (Chapter XI procedure for SSFC) and Rule 99 (Chapter IX amendments requiring brief reasons for General/Petty Courts); Section 117(2) appeal mechanism; constitutional principles including Article 14 and principles of natural justice; precedents interpreting analogous duties under service statutes and court-martial jurisprudence. Precedent treatment: Reliance on a two-judge Bench decision holding that SSFC need not give reasons because Rule 149 was not amended in parity with Rule 99, and on authoritative Constitution Bench decisions establishing that in the absence of an express or necessarily implied statutory requirement, administrative/quasi-judicial authorities are not universally obliged to give reasons for findings (while recognizing the salutary value of reasons as a principle of natural justice and circumstances where reasons are necessary). Interpretation and reasoning: Chapter XI governs SSFC procedure and contains Rule 149 which prescribes that findings shall be recorded simply as 'Guilty' or 'Not Guilty' and provides for special findings in certain circumstances; no statutory amendment comparable to Rule 99 imposed a requirement to give reasons for SSFC findings. Precedents (including the Constitution Bench's analysis of the Army Act and allied authorities) establish that the requirement to record reasons must arise either expressly or by necessary implication from the statutory scheme; absent such provision, the SSFC is not under a legal duty to record reasons for its findings. The appellate authority under Section 117(2) may exercise supervisory power and reduce or commute sentences; recording of reasons is required where the rules expressly mandate it (e.g., when awarding particular sentences or recommendations to mercy) or where necessary to prevent arbitrariness by necessary implication. Rule 149 contains no such express or necessarily implied mandate. Ratio vs. Obiter: Ratio - SSFC is not required under Rule 149 to furnish reasons for its finding of guilt; absence of reasons does not, per se, vitiate the conviction. Obiter - observations on the salutary value of reasons and the importance of protecting complainants in sexual misconduct proceedings while ensuring procedural regularity. Conclusions: The SSFC was not statutorily obligated under Rule 149 to record reasons for its finding of guilt; the absence of express reasons did not invalidate the SSFC's finding where the RoE on record satisfactorily substantiated the charge and the appellate authority lawfully commuted the punishment under statutory power. The High Court erred in setting aside the conviction solely on the ground of absence of reasons. Interrelation of Issues and Final Determination Cross-reference: The jurisdictional validity of the Commandant's order for additional RoE (Issue 1) is material to the procedural regularity of the SSFC's trial record relied upon in Issue 2. The decision on Issue 1 negates the High Court's premise that the additional RoE was recorded without authority and thereby tainted the SSFC proceedings; the decision on Issue 2 negates the High Court's second premise that the SSFC's finding required recorded reasons as a precondition of validity. Overall reasoning and outcome: The additional RoE in the facts of the case was a limited, clarificatory exercise to resolve a date/time discrepancy caused by an event occurring across midnight; the Commandant had jurisdiction to order such clarification. Rule 149 did not require the SSFC to record reasons for its finding; the conviction, supported by RoE and confirmed (with commutation of sentence) by the appellate authority under Section 117(2), was not vitiated for lack of reasons. The High Court's quashing of the disciplinary proceedings on the twin grounds of lack of jurisdiction for additional RoE and absence of reasons was unsustainable. Concluding Ratio The Commandant possessed implicit jurisdiction, supported by Rules 48 and 51 read with Rule 6 and vindicated by the clarificatory nature of the 2011 amendment, to direct recording of additional RoE for clarificatory purposes; and the SSFC was not required by Rule 149 to furnish reasons for its finding of guilt. Consequently, the disciplinary proceedings and resultant conviction and sentence (subject to lawful commutation by the appellate authority) stand valid and the High Court's order setting aside those proceedings was overturned.