SC upholds dismissal of ITBP sentry who robbed cash box, says 'guardian become looter'

New Delhi, Jun 7 (PTI) The Supreme Court has upheld the decision of the Indo-Tibetan Border Police (ITBP) dismissing from service a constable who had robbed money from a cash box meant for salary payment of personnel saying, "All members of the force must note that there is zero tolerance for such brazen misconduct, where the guardian of the cash box became its looter".

A bench of Justices Surya Kant and N Kotiswar Singh set aside the Uttarakhand High Court order, which asked the ITBP to reconsider its punishment of dismissal from service awarded to the constable.

The bench said, "On being found guilty of gross misconduct involving moral turpitude, it became the bounden duty of the Disciplinary Authority to impose a befitting punishment upon the respondent (constable). This duty is amplified, especially in Para Military Forces, where discipline, ethics, loyalty, dedication to service, and reliability are essential to the job. All members of the force must note that there is zero tolerance for such brazen misconduct, where the guardian of the cash box became its looter." Finding fault with the reasoning of the high court order, the bench said, "The high court's reasoning that 'livelihood of a person has to be evaluated keeping the overall conduct of an official' would fail to overcome the undesirable trails of misconduct left by the respondent over the years." It said the high court ought not to have exercised its discretionary jurisdiction to compel the authorities to impose a punishment less than dismissal from service.

"In fact, the misconduct proved against the respondent is so grave and alarming that any punishment less than dismissal from service would prove inadequate and insufficient," the bench said in its order of May 20, uploaded recently.

The bench allowed the plea of the ITBP through the Union of India and set aside the high court's September 27, 2018 order of the division bench which affirmed the November 8, 2012 order of the single judge to the extent of directing reconsideration of the punishment imposed.

The top court said the constable Jageshwar Singh was a member of a disciplined para military force, posted in a sensitive border area.

It noted that Singh was performing the duties of Sentry on the consequential night, fully aware of the cash amount lying in the cash box and was obligated to perform his duties and guard the cash boxes with utmost dedication, honesty, commitment and discipline.

"However, contrary to the faith and trust reposed in him by his superiors, he broke open the cash box. He has, therefore, committed robbery of the cash amount, which he was designated to protect. The allegation has been duly proved against the respondent in the summary court proceedings based upon the multiplicity of evidence, including the confessional statement made by respondent," it said.

The top court said the fairness of the summary inquiry or the genuineness of the constable's confession has not been doubted by the high court and a positive finding, upholding the inquiry as well as the voluntary confession, has been given.

It noted that the past service record of the constable also dissuades any sympathy as it is on record that he was found guilty of minor misconduct on eight separate occasions, where punishments were awarded.

"It may be true that the previous punishments would ordinarily not be a factor to determine the quantum of punishment with respect to the subject misconduct," the bench said.

The constable was recruited into the ITBP on November 30, 1990 and was performing the duty of Sentry during the intervening night of July 4, 2005 and July 5, 2005 at Kote, where cash boxes containing lakhs of rupees for disbursement to the Company personnel were kept.

Singh allegedly broke open the lock and took the cash, thereafter concealed the cash box about 200 yards away from the Kote, and ran away from the Post.

When the incident came to the notice of the Company Commander, he immediately made a search of the nearby area as well as the vehicle going towards Uttarkashi, but the respondent could not be traced.

The Company commander then reported the matter to the Commanding Officer of the Battalion and subsequently an FIR was lodged on July 6, 2005 against the constable.

The FIR was followed by a Court of Enquiry, in which it was duly established that Singh was guilty of committing the crime. On being arrested, Singh confessed to the crime after which he was dismissed from service on November 14, 2005.

Aggrieved by the order, he challenged it before the high court and claimed that his confessional statement was made under duress.

However, the high court did not agree with his argument that the confessional statement was made under duress but asked the ITBP to reconsider its decision of punishment of dismissal of service awarded to him. PTI MNL MNL KSS KSS