Kalipada Acharya V. Union of India and others

OJC/5456/2001

AI Insights

Kalipada Acharya, a constable in the Border Security Force, was dismissed from service following a trial by a Summary Security Force Court for allegedly outraging the modesty of a woman, a civil offence under Section 46 of the BSF Act, 1968, punishable under Section 354 IPC. The dismissal was challenged in the High Court of Orissa, which found procedural and jurisdictional flaws in the trial and the subsequent appellate decision. The court held that the Summary Security Force Court did not have the jurisdiction to try the offence as it was not a simple hurt or theft, and thus the dismissal was void.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 816521 (HC-CUTTACK)
• Appeal Type: Others
• Pronouncement Date: 07-12-2018
• Assessment Year: misc
• Other Referred Cases: Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED), Pawan Kumar Agrawala v. General Manager-II and Appointing Authority, State Bank of India, Apparel Export Promotion Council v. A.K. Chapra, Siemens Engg. Mfg. Co. of India Ltd. v. Union of India, Maneka Gandhi v. Union of India, CIT v. Walchand & Co. (P) Ltd., S.N. Mukherjee v. Union of India, Union of India v. Mohan Lal Capoor, Sanjay Kumar Rout v. State of Orissa, Indira Nehru Gandhi v. Raj Narain, Raval & Co. V. K.G. Ramachandran
• Laws Referred To: Border Security Force Act, 1968, Indian Penal Code
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: D N LENKA
• Assessee Lawyers: JAYANT DAS; A N DAS
• Keywords: Civil Offence; Dismissal from Service; Jurisdiction; Reinstatement; Summary Security Force Court
• Section: 46; 226; 227; 354

Judgement Text

"HIGH COURT OF ORISSA : CUTTACK OJC NO. 5456 OF 2001 In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------- Kalipada Acharya .....… Petitioner -Versus- Union of India and others ......... Opp. Parties For petitioner : Mr. Jayant Das, Sr. Advocate along with M/s. A.N. Das, A.N. Patnaik, N. Sarkar, R.K. Mohapatra and D.K. Rout, Advocates For opp. parties : Mr. D.N. Lenka, Advocate Central Government Counsel --------------- PRESENT: THE HONOURABLE DR. JUSTICE B.R. SARANGI --------------------------------------------------------------------------------- Date of hearing : 30.11.2018 :: Date of Judgment:07.12.2018 --------------------------------------------------------------------------------- DR. B.R. SARANGI, J. The petitioner, who was working as constable in the Border Security Force, has filed this writ application seeking following reliefs:- 2 “The petitioner, therefore, most respectfully prays that your Lordships may be pleased to admit this writ application and issue rule NISI to the Opp.Parties to show cause as to why the order dtd.07.3.2001 in Annexure-4 and order dtd.14.9.2001 in Annexure-7 shall not be quashed; And further why a direction shall not be issued to the Opp.Parties directing them to reinstate the petitioner with all financial benefits; And on their failing to show-cause or showing insufficient cause issue a writ in the nature of certiorari quashing the order dtd.07.03.2001 in Annexure-4 and order dtd.14.9.2001 in Annexure- 7; And issue a writ in the nature of mandamus or any other appropriate writ directing the Opp.Parties to reinstate the petitioner along with all financial benefits, which he is entitled to.” 2. Factual matrix of the case, in hand, is that the petitioner, by following due procedure of selection, was appointed and joined as constable in Border Security Force (BSF) on 02.04.1987 bearing no. 87655462 in 142 BN and posted to ‘C’ Coy. He was discharging his duty assigned to him and as such there was no adverse remark against him at any point of time. On 27.02.2001, while he was deputed for RP duty at BSF Gate No.2 of 142 BN HQ, Khemkaran, Punjab, he was charged for committing a civil offence under 3 Section 46 of Border Security Force Act, 1968 (in short “BSF Act, 1968”), punishable under Section 354 IPC. On the same day, he was arrested and was under the charge of Guard Commander of Quarters Guards’ vide order of Deputy Commandant. Charge sheet was filed against him on 01.03.2001 under Section 46 of BSF Act, 1968 in committing a civil offence alleging outraging the modesty of a woman. Thereafter, a decision was taken by the competent authority for having a trial by Summery Security Force Court and he was intimated, vide letter dated 05.03.2001, to take assistance of any Officer/SO/Legal Practitioner during the trial proceeding. While he was under the charge of Guard Commander he was not able to take assistance of any Officer/SO/Legal Practitioner. During trial on 07.03.2001, the petitioner was given the assistance of one Asst. Commandant. As many as ten witnesses, including the petitioner, were examined during the trial and on the same day he was dismissed from service with immediate effect without financial/pensionary benefit. 4 2.1 Though the petitioner denied all the allegations, but due to animosity and previous grudge he was falsely implicated. Needless to say, while the petitioner was posted at Gate No.2 on 27.02.2001, he was helping the School children in crossing the road. Seeing the victim girl crossing the road hurriedly, the petitioner took hold of the victim girl, scolded her and helped her in crossing the road. But on the allegation of the minor girl, her father lodged an FIR, on basis of which the petitioner proceeded under Section 46 of the BSF Act, 1968. The victim girl was also examined by the Chief Medical Officer (C.M.O.), 142 BN, B.S.F.. The medical report does not reveal any injury or any type of sexual abuse by the petitioner, but with an oblique motive, by adopting a trial of summary security force, major penalty of dismissal from service with immediate effect was inflicted on 07.03.2001. The petitioner, after receiving the order of major penalty, preferred statutory appeal on 21.03.2001 before the Director General, Border Security Force-opposite party no.2 with a prayer to set aside the order of punishment of dismissal from service and sought for reinstatement in 5 service with all benefits. The appellate authority, without considering the grievance of the petitioner, rejected the appeal in a cryptic manner vide order dated 14.09.2001 in Annexre-7, hence this writ application. 3. Mr. Jayant Das, learned Senior Counsel appearing along with Mr. N. Sarkar, learned counsel for the petitioner contended that as per the provisions of the BSF Act, 1968 and Rules framed thereunder, Summary Security Force Court is not competent and lacks jurisdiction to try the civil offences under Section 46 of the BSF Act, 1968, except simple hurt and theft. Civil offences under Section 46 of the BSF Act are excluded from the jurisdiction of the Summary Security Force Court. Therefore, the Summary Security Force Court, having no power and jurisdiction to try any offence under Section 46 of the BSF Act, 1968 (other than simple hurt and theft), the punishment/sentences so imposed by it was ab-initio void, illegal, non est and not sustainable in the eye of law. It is further contended that opposite parties have not followed the prescribed procedure and not given adequate 6 opportunity to the petitioner as provided under Rules 54, 63, 101, 151 and 157 of the Border Security Force Rules, 1969 (in short “the BSF Rules, 1969”). Therefore, the impugned sentence/punishment, being not in conformity with Sections 46 and 48 of the BSF Act, 1968 read with Rule 47 of the Rules, and the order of rejection made by the appellate authority, being a non-speaking one without assigning any reason, are to be quashed. It is further contended that the petitioner has been without any gainful employment and is living in penury and thereby, he raises preliminary objection regarding lack of jurisdiction of Summary Security Force Court relating to Section 354, IPC read with Section 46 of BSF Act, 1968 and Rule 47 of the BSF Rules, 1969 and claims for reinstatement in service with all consequential benefits. To substantiate his contention he has relied upon the judgment of the apex Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED), (2013) 10 SCC 324 and Pawan Kumar Agrawala v. General 7 Manager-II and Appointing Authority, State Bank of India (2015) 15 SCC 184. 4. Mr. D.N. Lenka, learned Central Government Counsel argued with vehemence justifying the punishment imposed on the petitioner and contended that the petitioner, having committed a civil offence, that is to say outraging the modesty of a woman punishable under Section 354 IPC, was tried by Summary Security Force Court keeping in view the gravity of the case, and sentenced to be dismissed from service. It is further contended that on conjoint reading of Section 46 of BSF Act, 1968 read with Rule 47 of Rules, 1969 Summary Security Force Court has jurisdiction to try the civil offence under Section 46 of the BSF Act, punishable under Section 354 of IPC. It is further contended that outraging a modesty of a woman or attempt to sexually molest are to be examined on the broader probabilities of a case and not swayed by insignificant discrepancies or narrow technicalities. Such cases ought to be dealt with great sensitivity. 8 To substantiate his contention he has relied upon the judgment in Apparel Export Promotion Council v. A.K. Chapra, (1999) 1 SCC 759. 5. This Court heard Mr. Jayant Das, learned Senior Counsel appearing along with Mr. N. Sarkar, learned counsel for the petitioner, and Mr. D.N. Lenka, learned Central Government Counsel. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 6. In view of the above narrated facts, which are undisputed, the following issues are formulated:-- (i) Whether the petitioner is guilty of committing civil offence under Section 46 of the Border Security Force Act, 1968 punishable under Section 354, IPC and consequentially whether Summary Security Force Court has got jurisdiction to try such offence? (ii) Whether the appellate authority, while rejecting the appeal of the petitioner, has passed a reasoned and speaking order? (iii) Any other relief or reliefs which the petitioner is entitled to? 9 7. To answer issue no.(i) with regard to jurisdiction of the Summary Security Force Court, reliance has been placed on the following provisions of BSF Act, 1968:- “2(d). “civil offence” means an offence which is triable by a Criminal Court.” xx xx xx 2(g) “Criminal Court” means a Court of ordinary criminal justice in any part of India.” xx xx xx “46. Civil offences.— Subject to the provisions of section 47, any person subject to this Act who at any place in, or beyond, India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section shall be liable to be tried by a Security Force Court and, on conviction, be punishable as follows, that is to say,— (a) if the offence is one which would be punishable under any law in force in India with death, he shall be liable to suffer any punishment, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and (b) in any other case, he shall be liable to suffer any punishment, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.” “47. Civil offences not triable by a Security Force Court.— A person subject to this Act who commits an offence of murder or of culpable homicide not amounting to murder against, or of rape in relation to, a person not subject to this Act shall not be deemed to be guilty of an offence against this Act and shall not be tried by a 10 Security Force Court, unless he commits any of the said offences,— (a) while on active duty; or (b) at any place outside India; or (c) at any place specified by the Central Government by notification in this behalf.” “48. Punishments awardable by Security Force Courts.— (1) Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by Security Force Courts according to the scale following, that is to say,— (a) death; (b) imprisonment which may be for the term of life or any other lesser term but excluding imprisonment for a term not exceeding three months in Force custody; (c) dismissal from the service; (d) imprisonment for a term not exceeding three months in Force custody; (e) reduction to the ranks or to a lower rank or grade or place 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 of the service for the purpose of promotion; (g) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose; (h) fine, in respect of civil offences; (i) severe reprimand or reprimand except in the case of persons below the rank of an under-officer; (j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active duty; 11 (k) forfeiture in the case of person sentenced to dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such dismissal; (l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence for which he is convicted is made good. (2) Each of the punishments specified in sub-section (1) shall be deemed to be inferior in degree to every punishment preceding it in the above scale.” xx xx xx “64. Kinds of Security Force Courts.— For the purposes of this Act there shall be three kinds of Security Force Courts, that is to say,— (a) General Security Force Courts; (b) Petty Security Force Courts; and (c) Summary Security Force Courts.” xx xx xx “69. Composition of a Petty Security Force Court.— A Petty Security Force Court shall consist of not less than three officers each of whom has held the post of Deputy Superintendent of Police for not less than two whole years.” “70. Summary Security Force Court.— (1) A Summary Security Force Court may be held by the Commandant of any unit of the Force and he alone shall constitute the Court. (2) The proceedings shall be attended throughout by two other persons who shall be officers or subordinate officers or one of either, and who shall not as such, be sworn or affirmed.” xx xx xx 12 “80. Choice between Criminal Court and Security Force Court.— When a Criminal Court and a Security Force Court have each jurisdiction in respect of an offence, it shall be in the discretion of the Director- General, or the Inspector-General or the Deputy Inspector-General within whose command the accused person is serving or such other officer as may be prescribed, to decide before which court the proceedings shall be instituted, and, if that officer decides that they shall be instituted before a Security Force Court, to direct that the accused person shall be detained in Force custody.” 8. In exercise of powers conferred by sub-sections (1) and (2) of Section 141 of the Border Security Force Act, 1968, the Central Government framed a rule called “the Border Security Force Rules, 1969”, relevant provision of which necessary for proper adjudication of the case, are extracted hereunder:- “47. Charges not to be dealt with summarily.-A charge for an offence under section 14 or section 15 or clauses (a) and (b) of section 16 or section 17 or clause (a) of section 18 or clause (a) section 20 or clause (a) section 24 or section 46(other than that for simple hurt or theft) or a charge for abetment of or an attempt to commit any of these offences shall not be dealt with summarily.” xx xx xx “54. Charges.-(1) There shall be a separate charge for each offence. (2) (a) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts 13 which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once or he may be charged in the alternative with having committed some one of the said offences. (b) The charge for the more serious offence shall precede the one for the less serious offence. (3) Each charge shall consist of two parts, namely: (a) statement of offence, and (b) particulars of the offence. (4) The offence shall be stated, if not a civil offence, as nearly as practicable, in the words of the Act, and if a civil offence, in such words as would sufficiently describe that offence. (5) (a) The particulars shall state the time and place of the alleged offence and the person (if any) against whom, or the thing (if any) in respect of which, it was committed and these should be sufficient to give the accused notice of the matter with which he is charged. (b) In case such particulars are not sufficient to give the accused notice of the matter with which he is charged, the charges shall also contain such particulars of the manner in which the offence was committed as will be sufficient for that purpose.” xx xx xx “63. Preparation of defence by the accused.- (1) An accused, who has been remanded for trial, shall be afforded proper opportunity for preparing his defence and shall be allowed proper communication with his defending officer or counsel and with his witnesses. (2) A defending officer shall be appointed to defend an accused who has been remanded for trial unless the accused states in writing that he does not wish such an appointment to be made. (3) if the prosecution is to be undertaken by a legally qualified officer or by a counsel the accused shall be notified of this fact in sufficient time to enable him, if he so desires to make arrangement for a legally qualified officer or counsel to defend him. (4) As soon as practicable after a decision has been taken to place the accused on trial and in any case not less than four days before his trial he shall be given; 14 (a) a copy of the charge-sheet; (b) an unexpurgated copy of the record or abstract of evidence showing the passages (if any), which have been expurgated in the copy sent to the senior member; (c) notice of any additional evidence which the prosecution intends to adduce; and (d) if the accused so requires, a list of the ranks, names and units of the members who are to form the Court and of any waiting members. (5) when an accused is given a copy of the charge- sheet and of the record or abstract of evidence in accordance with this rule, he shall: (a) have the charge explained to him; and (b) be informed that, upon his making a written request to his Commandant not less than twenty four hours before his trial requiring the attendance at his trial of a witness (other than a witness for the prosecution) whom he desire to call in his defence (such witness to be named by him), reasonable steps will be taken in accordance with these rules to procure the attendance of any such witness at his trial. (6) The provisions of sub-rules (2) and (3) shall not apply in relation to a trial before a Summary Security Force Court and in relation to such a trial the period of four days referred to in subrule (4) shall be construed as twenty four hours.” xx xx xx “101. Procedure on Conviction.- (1) If the finding on any charge is ‘‘guilty’’, then, for the guidance of the Court in determining its sentence, and of the confirming authority in 1. subs by SO 2628(E) dated 25th Nov 2011 considering the sentence, the Court, before deliberating on the sentence, shall, whenever possible, take evidence of and record the general character, age, service, rank, any recognised acts of gallantry or distinguished conduct of the accused, any previous convictions of the accused either by Security Force Court or a criminal court, any previous punishments awarded to him by an officer exercising authority under section 53 or 55 as the case may be; the length of time he has been in arrest or in confinement on any previous sentence, and any decoration, or reward, of which he may be in possession or to which he is entitled. 15 (2) Evidence on the above matters may be given by a witness verifying a statement which contains a summary of entries in the service books respecting the accused and identifying the accused as the person referred to in that summary. (3) The accused may cross-examine any such witness and may call witnesses to rebut such evidence; and if the accused so requests, the service books or a duly certified copy of the material entries therein, shall be produced and if the accused alleges that the summary is in any respect not in accordance with the service books or such certified copy, as the case may be, the Court shall compare the summary with those books or copy and if it finds that it is not in accordance therewith, shall cause summary to be corrected or the objection of the accused to be recorded. (4) When all the evidence on the above matters has been given, the accused may address the Court thereon and in mitigation of punishment.” xx xx xx “151. Procedure on finding of “Guilty”.- (1) Where the finding on any charge is “Guilty” the Court may record of its own knowledge, or take evidence of any record, the general character, age, service, rank, and any recognised acts of gallantry, or distinguished conduct of the accused, and previous convictions of the accused either by a Security Force Court, or a Criminal Court, any previous punishment awarded to him by an officer exercising authority under section 53, the length of time he has been in arrest or in confinement on any previous sentence, and any decoration, or reward of which he may be in possession or to which he may be entitled. (2) Where the Court does not record the matters mentioned in this rule of its own knowledge, evidence on these matters may be taken in the manner directed in rule 101 for similar evidence.” xx xx xx “157. Friend of the accused.- During a trial at a Summary Security Force Court an accused may take the assistance of any person, including a legal practitioner as he may consider necessary; 16 Provided that such person shall not examine or cross- examine witnesses or address the Court.” xx xx xx “160. Review of Proceedings.- The proceedings of a Summary Security Force Court shall, immediately on promulgation be forwarded through the Chief Law Officer, or a Law Officer to the Deputy Inspector General under whom the accused may have been serving.” 161. Action by the Deputy Inspector-General - (1) Where the Deputy Inspector-General to whom the proceedings of a Summary Security Force Court have been forwarded under rule 160, is satisfied that injustice has been done to the accused by reason of any grave irregularity in the proceedings or otherwise, he may ,- (a) set aside the proceedings of the Court; or (b) reduce the sentence or commute the punishment awarded to one lower in the scale of punishment given in 1 [Section 48 and return it to the unit of the accused for promulgation]. (2) Where no action under sub-rule (1) has been taken he shall countersign the proceedings 2 (***). (3) The proceedings shall, after its promulgation 3 [under sub rule (1) or counter signature under sub-rule (2)] be forwarded to the Chief Law Officer for custody.” 9. As per the provisions contained in Section 2(d), “civil offence” has been defined to mean an offence which is triable by a Criminal Court. The “Criminal Court” has also been defined under Section 2(g) to mean a Court of ordinary criminal justice in any part of India. Section 46, which deals with “civil offences”, stipulates that subject to the provisions of Section 47, any person subject to the BSF Act, 1968, who 17 at any place in, or beyond, India commits any civil offence shall be deemed to be guilty of an offence against the said Act and, if charged therewith under Section 46 of the BSF Act, 1968 shall be liable to be tried by a Security Force Court and, on conviction, be punishable as mentioned in sub- clause (a) and (b) of the said section. Section 47 specifically speaks about the civil offences not triable by a Security Force Court. Section 64 states about kinds of Security Force Courts, namely, (a) General Security Force Courts; (b) Petty Security Force Courts; and (c) Summary Security Force Courts. Sections 65 and 66 deal with power to convene a General Security Force Court and Petty Security Force Court respectively, whereas Section 67 states about the contents of warrants issued under Sections 65 and 66. The composition of General Security Force Court has been prescribed under Section 68. Section 69 deals with composition of a Petty Security Force Court, whereas Section 70 deals with Summary Security Force Court. Section 80 deals with choice between Criminal Court and Security Force Court and stipulates that when a Criminal Court and a Security Force 18 Court have each jurisdiction in respect of an offence, it shall be in the discretion of the Director-General, or the Inspector- General or the Deputy Inspector-General within whose command the accused person is serving or such other officer as may be prescribed, to decide before which Court the proceedings shall be instituted, and if that officer decides that they shall be instituted before a Security Force Court, to direct that the accused person shall be detained in Force custody. 10. Rule 47 of BSF Rules, 1969 speaks about charges not to be dealt with summarily and stipulates that a charge for an offence under section 14 or section 15 or clauses (a) and (b) of section 16 or section 17 or clause (a) of section 18 or clause (a) of section 20 or clause (a) of section 24 or section 46 (other than that for simple hurt or theft) or a charge for abetment of or an attempt to commit any of these offences shall not be dealt with summarily. On close reading of Rule 47 it clearly provides that the charge for an offence under Section 46 (other than that of simple hurt or theft) 19 shall not be dealt with summarily. Meaning thereby, by using the expression “other than”, it indicates carving out a specific class from the generic class. Therefore, the offence under Section 354, IPC, under which a charge has been framed against the petitioner, shall not be dealt with summarily under the provisions of Rule 47 of the BSF Rules, 1969. The use of phrase “other than” had come up for consideration by the apex Court in Gem Granites v. CIT, Tamil Nadu, (2005) 1 SCC 289 and, while considering the provisions contained under Section 80 HHC and 2(b) of the Income Tax Act, 1961, the apex Court held as follows- “The use of phrase ‘other than’ in clause (b) sub-section 2 of Section 80HHC (as it stood prior to 1991) of the Act indicates the craving out of a specific class from the generic class of ‘minerals and ores’ which would mean that the specified processed minerals and ores would have been covered by the words ‘minerals and ores’.” 11. Applying the same analogy to the present context, Section 46, which deals with civil offences subject to provisions of Section 47, only permits to deal with an offence of simple hurt and theft. Thereby, except simple hurt and theft, no other offence shall be dealt with summarily under 20 Rule 47. As such, the offence under Section 354, IPC has been excluded from the purview of the meaning of Section 46 of civil offences and cannot be triable by a Summary Security Force Court, as classified under Section 64 read with Section 70 of the BSF Act, 1968. Under Section 80 though choice has been left with the authority to approach the Criminal Court or Security Force Court, it only empowers the authority concerned to decided to institute the case before the Security Force Court, then to direct that the accused person shall be detained in Force custody. There is thus no dispute with regard to choice between the Criminal Court and Security Force Court, as prescribed under Section 80 of the BSF Act, 1968, but when a specific provision has been made under Section 46 of the Act with regard to civil offences and read with Rule 47 it is also mentioned which offences are to be charged summarily, the offence committed under Section 354, IPC cannot be included within the meaning of Section 46 of civil offences so as to be tried summarily by Summary Security Force Court. 21 12. The definition under Section 2(d) specifically states that civil offence means an offence which is triable by Criminal Court and Criminal Court has been defined under Section 2(g) means a Court of ordinary criminal jurisdiction in any part of India. If the civil offence, as defined under Section 2(d), can be tried by Criminal Court, in that case choosing a forum and deciding the same by Summary Security Force Court, cannot have any justification and that too the same is contrary to the provisions of law. 13. Chapter-VIII of BSF Rules, 1969 deals with charges and matters antecedent of trial. Rule 54 deals with charges, whereas Rule 63 deals with preparation of defence by the accused. Rule 101 deals with procedure on conviction and Rule 151 deals with procedure on finding of “Guilty”. Unless there is a finding of “guilty” by the Court, who record of its own knowledge, or take evidence of any record, the general character, age, service, rank and any recognized acts of gallantry, or distinguished conduct of the accused, and previous convictions of the accused either by a Security 22 Force Court, or a Criminal Court, any previous punishment awarded to him by an officer exercising authority under Section 53, the procedure of conviction under Rule 101 having not been followed and charges having not been framed under Rule 54, the imposition of punishment cannot have any justification and, therefore, the same is required to be interfered with. 14. In view of the aforesaid facts and circumstances, this Court is of the considered view that the Summary Security Force Court is not competent and lacks jurisdiction to try civil offences under Section 46 of the BSF Act, 1968, except simple hurt or theft. Thereby, the punishment so imposed on the petitioner cannot sustain in the eye of law. 15. Answering issue no.(ii) as it reveals from Annexure-7, the appellate authority, without assigning any reason, rejected the appeal preferred by the petitioner being devoid of merit. This clearly shows non-application of mind by the appellate authority, while passing the impugned order dated 14.09.2001 in Annexure-7. 23 16. In Siemens Engg. Mfg. Co. of India Ltd. v. Union of India, AIR 1976 SC 1785 the apex Court held that the rule requiring reasons to be recorded by quasi-judicial authorities in support of the orders passed by them is a basic principle of natural justice. Hon’ble Justice Bhagwati (as he then was), speaking for the Court, observed as follows: “If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative Law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law.” The same view has been reiterated in Maneka Gandhi v. Union of India, AIR 1978 SC 597. 24 17. In CIT v. Walchand & Co. (P) Ltd., AIR 1967 SC 1435 the apex Court observed: “The practice of recording a decision without reasons in support cannot but be deprecated.” 18. In S.N. Mukherjee v. Union of India, AIR 1990 SC 1984 the apex Court observed: “Except in cases where the requirement of recording reasons has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions must record reasons in support of their decisions. The considerations for recording reasons are :1) such decisions are subject to the appellate jurisdiction of the Supreme Court under Article 136 as well as supervisory jurisdiction of the High Courts under Article 227; 2) it guarantees consideration by the adjudicating authority; 3) it introduces clarity in the decisions; and 4) it minimizes chances of arbitrariness and ensures fairness in the decision-making process.” 19. Reasons being a necessary concomitant to passing an order, the appellate authority can thus discharge its duty in a meaningful manner either by furnishing the same expressly or by necessary reference to those given by the original authority. 25 In Union of India v. Mohan Lal Capoor, AIR 1974 SC 87 it has been held: “Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt support to the conclusion and decision reached. Recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is vital for the purpose of showing a person that he is receiving justice.” The decisions, referred to above, have been followed in Sanjay Kumar Rout v. State of Orissa, AIR 2018 ORISSA 162, rendered by a Division Bench of this Court, where Dr. Justice B.R. Sarangi is a member. In view of the above, the impugned order of appellate authority in Annexure-7, having been passed without assigning any reason, cannot sustain in the eye of law. 20. Coming to issue no.(iii), reliance has been placed by the learned counsel for the petitioner in Deepali Gundu Surwase (supra), wherein the apex Court held that for 26 wrongful/illegal termination of service, the petitioner was entitled to get back wages. Similar view has also been taken in Pawan Kumar Agrawala (supra), wherein the apex Court held that in absence of evidence of being gainfully employed elsewhere, order of reinstatement without full back wages is unjustified. The apex Court directed reinstatement with full back wages from the date of removal till date of attaining the age of superannuation on basis of periodical revisions of salary and pension amount paid, to be deducted from back wages. 21. Reliance has been placed by learned Central Government Counsel on Apparel Export Promotion Council (supra) in which sexual harassment in working place was under consideration by the apex Court. While considering the act of superior against female employee that is against moral sanctions and does not withstand test of decency and modesty not amount to sexual harassment and was not a good conduct and not expected behavior from superior officer. Therefore, punishment imposed by the employer 27 commensurate with gravity of his objectionable behavior was sustained by the apex Court. And while sustaining such punishment, the apex Court held as follows: “In a case involving charge of sexual harassment or attempt to sexually molest, the courts are required to examine the broader probabilities of a case and not get swayed by insignificant discrepancies or narrow technicalities or dictionary meaning of the expression molestation. They must examine the entire material to determine the genuineness of the complaint. The statement of the victim must be appreciated in the background of the entire case. Where the evidence of the victim inspires confidence, as is the position in the instant case, the courts are obliged to rely on it. Such cases are required to be dealt with great sensitivity. Sympathy in such cases in favour of the superior officer is wholly misplaced and mercy has no relevance. ” The law laid down by the apex Court in Apparel Export Promotion Council (supra) so far as sexual harassment on women in working place is concerned there is no dispute on that but that ipso facto cannot have any application to the present context, because of the reason that here jurisdiction of the Court is under consideration. 22. In view of the foregoing discussions, the Summary Security Force Court cannot have any jurisdiction to try the offence under Section 354, IPC, considering as civil offence defined under Section 2(d) and clarified under Section 46 of 28 the BSF Act, 1968 and, as such, imposition of punishment of removal from service is absolutely without jurisdiction and nullity in the eye of law. If Section 2(d) defines “civil offences”, means the offence which is triable by Criminal Court, and Criminal Court has been defined under Section 2(g), therefore, Section 46 of the BSF Act, 1968 precludes jurisdiction of the Summary Security Force Court. The definition as prescribed under Section 2(d) and (g), do not take away the ordinary and natural meaning of words, but are used: (i) to extend the meaning of a word to include or cover something, which would not normally be covered or included; and (ii) to interpret ambiguous words and words which are not plain or clear. The definition must ordinarily determine the application of the word or phrase defined; but the definition must itself be interpreted first before it is applied. Therefore, a Court should not lay down a rigid definition and crystallize the law, when the legislature, in its wisdom has not done so. 29 23. In Indira Nehru Gandhi v. Raj Narain, (1975) Supp SCC 1, the apex Court held as follows: “A definition clause in a statute is a legislative device with a view to avoid making different provisions of the statute cumbersome. Where a word is defined in the statute and that word is used in a provision to which that definition is applicable, the effect is that wherever the word defined is used in that provision, the definition of the word gets substituted. Where, however, the definition is preceded by the words “unless the context otherwise requires” the connotation is that normally it is the definition given in the section which should be applied and given effect to. This normal rule may, however, be departed from, if there be something in the context to show that the definition should not be applied.” 24. In Raval & Co. V. K.G. Ramachandran, (1974) 1 SCC 424, the apex Court, while considering the construction of a definition clause, has held as follows:- “A definition clause is not to be taken as substituting one set of words for another or as strictly defining what the meaning of a term must be under all circumstances, but as merely declaring what may be comprehended. It would, therefore, always be a matter of interpretation whether or not a particular meaning given in the definition clause applied to the word as used in the statutory provision. That would depend on the subject and the context. Moreover, it is equally well established that the meaning of words used in a statute is to be found, not so much in strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used and the object which is intended to be achieved. The context, the collocation and the object of the words may show that they are not intended to be used in the sense which they ordinarily bear, but are meant to be used in a narrow and limited sense.” 30 25. Applying the same analogy to the present context, if the “civil offence” as defined under Section 2(d) of the definition clearly specifies the offence which is triable by a criminal Court and the criminal Court has been defined in Section 2(g), subsequent meaning or clarifying under Section 46 only to the extent that offence committed by Security Force for simple hurt or theft, the Summary Security Force Court may have jurisdiction but not otherwise. 26. In view of the fact and law discussed above, this Court is of the considered view that the imposition of punishment of dismissal from service in Annexure-4 dated 07.03.2001 by the Summary Security Force Court is without jurisdiction and nullity in the eye of law, and consequential order dated 14.09.2001 in Annexure-7 rejecting the appeal, without assigning any reason and simply stating as “being devoid of merit”, cannot sustain in the eye of law and are liable to be quashed and accordingly the same are hereby quashed. As a consequence thereof, the petitioner is entitled 31 to be reinstated in service with full back wages from the date of dismissal from service till date, which shall be implemented within a period of three months from the date of communication of this judgment. 27. The writ petition is thus allowed. No order to costs. Sd/- (DR. B.R. SARANGI) JUDGE True Copy Sr. Steno Orissa High Court, Cuttack The 7th December, 2018, Ajaya/GDS "