Union of India & Ors Vs. Shri Iqbal
Singh Cheema  INSC 562 (16 October 1995)
G.N. (J) Ray, G.N. (J) Nanavati G.T. (J)
1996 AIR 426 1995 SCC Supl. (4) 84 1995 SCALE (6)137
APPEAL NO 9580 OF 1995 (Arising out of S.L.P. No.9235/92) Shri I.S. Cheema .. appellant
V. Union of India & Anr. .. respondents
O R D
granted in both the special leave petitions Nos. 8416 and 9235 of 1992.
leave petition No. 8416 of 1992 has been presents by the Union of India and its
officers against the judgment and order dated February 26, 1992 passed by the
High Court of Gauhati in Civil Rule No. 208 of 1990 and the other Special leave
petition No. 9235 of 1992 has been preferred by the appellant I.S. Cheema against
the same order Passed by Gauhati High Court. In a Court Martial proceeding
initiated against I.S. Cheema under the Border Security Force Act, 1968 and the
consequential punishment of dismissal, a writ petition was moved before the Gauhati
High Court by I.S. Cheema who at the relevant time was holding the post of
Commandant (Selection Grade ) in the B.S.F. The Court Martial proceeding was
initiated on a charge of corruption by directing subordinate officers to
arrange for weekly payments to the said Commandant by encouraging smuggling
activities in the border. Before the High Court, the said I.S. Cheema contended
that the Court Martial had not been properly conducted in view of the fact that
he had been denied reasonable opportunity of being heard and contest the said
proceedings. It was also contended that the Court Martial itself was not
properly constituted because one of the members was a Commandant in the Border
Security Force but such member was junior to him in seniority. It appears that
by the impugned order, the High Court has accepted both the contentions and
accordingly interferred with the impugned order of dismissal from service.
learned Additional Solicitor General appearing in support of the appeal
preferred by the Union of India has contended that under the rules constitution
of Court Martial was to be made with officials not below the rank of a
Commandant for trial of a member of B.S.F. holding the rank of Commandant. It
is not necessary that such Commandant in the Court Martial Board should also be
senior to Sri Cheema who was also a Commandant in B.S.F. It was contended by
Sri Cheema that since he was a Commandant (Selection Grade), he must be held
senior to the Commandant not in the Selection Grade. The learned Additional
Solicitor General has referred S.S. Ranade (1995(4) SCC 462 In the said
decision, it has been held that the Commandant (Selection Grade) and the
Commandant not in the selection grade both are governed by the same rules and
they belong to same rank and cadre.
Commandant (Selection Grade) cannot claim superannuation at the age of 58 Years
when the age of superannuation of a Commandant is 55 Years. Mr. Tulsi, learned
Additional Solicitor General, has submitted that as the Court Martial was
constituted with a Commandant, the provision of the rules had been complied
with and the High Court had gone wrong in holding that Cheema being Commandant
(Selection Grade) was senior to Commandant not in the Selection Grade and such
junior Commandant cannot be a member in the Board. In our view, such contention
of the learned Additional Solicitor General is justified. The Board in our view
had been constituted properly by taking a Commandant in it and it was not
necessary to have a Commandant (Selection Grade) in the Board because Sri Cheema
was a Commandant (Selection Grade). In the facts of the case, it also does not
appear that Court Martial proceeding was vitiated for not giving reasonable
opportunity to Sri Cheema to defend him in the Court Martial proceeding.
however, appears to us that Sri Cheema has attained the age of superannuation
in the year 1992. Even if it is held that proper opportunity of being heard was
not made available to him, it will be impractical now to direct for
constitution of a Court Martial for holding a fresh trial.
have considered the materials on record and it appears to us that the finding
by the Court Martial about the complicity of Sri Cheema in the offence charged
cannot be held as unjustified. It, however, appears to us that initially the
Court Martial proposed for forfeiture of seven years' service for the purpose
of promotion and pensionary benefits against Sri Cheema, but such proposal was
not accepted and the impugned order of dismissal was passed.
facts of the case, we feel that the ends of justice will be met if the order of
dismissal is replaced by the proposed punishment viz. forfeiture of promotion
and pensionary benefits for seven years. The impugned order of the High Court
is set aside and punishment of Sri Cheema is altared to the aforesaid extent.
only add that the charge of corruption alleged against the said officer is
quite serious which requires that a deterrent punishment should be passed.
However, in the peculiar facts of this case, we have awarded the aforesaid iessor
punishment and we may indicate that this case should not be treated as a
precedence for other cases of corruption.
the appeals ate accordingly disposed of.