Altamas Kabir, Asit Kumar Bisi

( 1 ) THIS appeal at the instance of the Deputy Inspector General, Border security Force, North Bengal Frontier Headquarter, Siliguri, has been filed against the judgment and order dated 18th February, 2004 passed by the learned single eludge in W. P. No. 12508 (W) of 2003, allowing the writ application and quashing the show-cause notice issued by the Commandant, 97 Battalion, Border security Force. The present application has been made for stay of the order and judgment of the learned Single Judge impugned in the appeal.

( 2 ) APPEARING in support of the application for stay, Mr. Pradip Ghosh, learned senior Counsel contended that in the instant case after the writ petitioner had been acquitted of the charges levelled against him by the Summary Security force Court (hereinafter referred to as the "ssfc"), the matter was referred to the Commandant (SHQ), the Officiating DIG of the concerned area, in terms of rule 160 of the Border Security Force Rules, 1969. After going through the proceedings of SSFC, the said authority differed with the findings of the SSFC and observed that under the circumstances, the SSFC proceedings is not approved being against the weight of evidence. The said authority went on to direct the Commandant to invoke the provision of Rule 22 of the Border Security force Rules and to proceed to terminate the services of the writ petitioner administratively after following the due process of law. It is after the said order was passed by the Officiating DIG that the Commandant issued the show-cause notice dated 1st August, 2003 to the writ petitioner requiring him to show-cause as to why his services should not be terminated, by virtue of the powers vested in the said Commandant under section 11 (2) of the Border Security force Act, 1968 read with Rule 22 of the Border Security Force Rules, 1969. It was also observed that considering the contents of the show-cause notice, it was not expedient and impracticable to hold a trial by the SSFC resulting in invocation of the provisions of Rule 22 of the aforesaid Rules.

( 3 ) AS mentioned hereinbefore, the said show-cause notice along with the invocation of Rule 22 of the Border Security Force Rules, was the subject-matter of challenge in the writ petition.

( 4 ) THE learned Single Judge after considering the various provisions of the act and the Rules, came to the conclusion that once the writ petitioner had been acquitted of the charges levelled against him, it was no longer open to the concerned authorities to invoke the provisions of Rule 22, which contemplated the awarding of punishment without holding a separate proceeding by the SSFC. On such findings, the learned Single Judge quashed the impugned notice to show cause issued on the basis of the orders passed by the Officiating DIG upon disagreeing with the findings of the SSFC.

( 5 ) APPEARING in support of the application for stay, Mr. Ghosh contended that the learned Single Judge had erred in not considering the provisions of section 115 of the Border Security Force Act, 1968, which, according to Mr. Ghosh, would have to be read with Rule 22 of the Border Security Force Rules, 1969 so as to give a harmonious construction to the provisions of the Act or the rules in a case where the concerned authority differed with the findings of the ssfc and was of the view that the delinquent deserved to be punished. Mr. Ghosh submitted that this is an issue which requires consideration in the appeal and that, as an interim measure, the judgment and order passed by the learned single Judge was required to be stayed.

( 6 ) OPPOSING the application on behalf of the writ petitioner, Mr. Kalyan bandopadhyaya, learned Senior Advocate, submitted that the learned Single judge had not committed any error in allowing the writ application upon coming to a finding that once a finding of not guilty was pronounced in a proceeding by the SSFC, it was no longer open to the authority to reverse such fin

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