‘Unequals can’t be treated as equals’: Why Calcutta High Court refused to save BSF constable caught for cattle smuggling bribe

Case of dismissal over bribe

• The petitioner, a BSF constable, was charged alongside a head constable for an incident occurring on the intervening night of November 9 and 10, 2007.
• While on ambush duty at the Indo-Bangladesh border, the two were accused of conniving with a civilian to allow the illegal crossing of 12 to 15 pairs of cattle in exchange for a bribe of Rs 7,000 per pair.
• Upon holding a Summary Security Force Court (SSFC) against the petitioner, he was awarded a punishment which he assailed by way of a petition.
• He subsequently challenged his dismissal in the high court before a single judge, alleging that the proceedings were perverse and that he was a victim of discrimination because the head constable, who faced identical charges, received only a punishment of reversion.
• The single judge upheld the decision of the authority by saying that it found no reason to interfere with the punishment.
• Following the single judge’s order, the petitioner approached the division bench.

‘Unequals cannot be treated equally’

• The petitioner had suffered four prior convictions within just six years of service, whereas the head constable had a long tenure with no prior disciplinary record.
• The petitioner was not in a position to claim parity with the head constable.
• The petitioner’s claim for equality is founded merely on a consideration of the charges being the same against the petitioner and the head constable. But that is not the only relevant consideration.
• The fact that the petitioner has four prior convictions in service, and that the head constable does not have a single prior conviction in service, distinguishes the petitioner from the other accused.
• The apex court in this regard has stated in its judgment delivered in the case of Uttar Pradesh Power Corporation Limited v. Ayodhya Prasad Mishra and Another that though it is settled that equals cannot be treated unequally, it is well settled that unequals cannot be treated equally.

• The top court has laid down that treating unequals as equals would offend the doctrine of equality enshrined in Articles 14 (equality before law) and 16 (equality of opportunity in public employment)of the Constitution of India.
• Six witnesses have supported the allegation against the petitioner.
• We find no force in the submission of the petitioner’s advocate that in the proceeding, the appellant’s confession has been recorded under threat and duress.
• The petitioner’s confession is recorded in the proceeding with a signature of the petitioner, without raising any contemporaneous demurrer (existing objection).
• Even if we were to discard confession, the same would not be to the petitioner’s benefit.
• Still, there would remain an unimpeached deposition made by six witnesses in the SSFC.
• Taking into consideration the recurrent delinquency of the petitioner throughout his career, the disciplinary authority inflicted a punishment of dismissal.