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IN THE HIGH COURT AT CALCUTTA
LAPITA BANERJI, J.
Shri Sanjay Kumar - Petitioner
Versus
Union of India & Ors. - Respondents
WPA No. 18440 of 2023
Decided On : 10-08-2023
BSF ACT - TERMINATION OF SERVICE - BSF ACT, 1968 SECTIONS 40, 75, 107, 113 - BSF RULES, 1969 RULE 20 - COURT HELD THAT THE DG DID NOT LACK JURISDICTION TO ISSUE THE SHOW-CAUSE FOR TERMINATION UNDER RULE 20 OF THE BSF RULES, 1969.
Fact of the Case:
The petitioner, a Second-in-Command with the Border Security Force (BSF), was issued a show-cause notice proposing termination of service on account of misconduct. He was found guilty of two charges related to facilitating cattle smuggling and sentenced by the General Security Force Court (GSFC). The Confirming Authority remanded the case for revision of findings on the third charge and the sentence on the first two charges. The revised findings and sentence were not confirmed by the Confirming Authority, leading to the issuance of the show-cause notice.
Finding of the Court:
The court held that the DG did not lack jurisdiction to issue the show-cause notice for termination under Rule 20 of the BSF Rules, 1969. The court also observed that the petitioner's conduct in agitating the same cause of action before two different courts was not appreciated.
Issues: 1. Whether the DG lacked jurisdiction to issue the show-cause notice for termination under Rule 20 of the BSF Rules, 1969? 2. Whether the petitioner's conduct in agitating the same cause of action before two different courts was appropriate?
Ratio Decidendi: 1. The court relied on the judgment in Amiya Ghosh vs. Union of India & Ors. to hold that the confirming authority did not lack the jurisdiction to issue the impugned show-cause notice. 2. The court observed that the petitioner's conduct in agitating the same cause of action before two different courts was not appreciated.
Final Decision: The court dismissed the writ petition as being premature.
JUDGMENT :
1. The petitioner has challenged a show cause notice dated June 20, 2023. The said show cause notice was issued by the Deputy Inspector General on behalf of DG, BSF seeking reply from the petitioner on the proposal for termination from service on account of misconduct. The petitioner was working in the rank of Second-in-Command with the Border Security Force (BSF). On 11th April, 2019 cattle were smuggled from India to Bangladesh from the Sodepur border and Soladana under the control of 85 Bn, BSF. Three articles of charges were framed against the petitioner, which are reproduced hereinbelow :
| FIRST CHARGE BSF ACT, 1968 SECTION-40 | AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE
In that he, On 11th April 2019, at about 1850 hrs, while performing duty as Second-in-Command of 85 Bn BSF gave illegal instruction telephonically from his Mob No.7739577117 to his subordinate officer, No.873657710 ASI (G) Ravindra Kumar, Offg Inspector (G) of 85 Bn BSF on his mobile No.7894983557 to facilitate cattle smuggling from India to Bangladesh through the AoR of BOP Sodepur, 85 Bn BSF on the night intervening 11-12 April 2019. |
| SECOND CHARGE BSF ACT, 1968 SECTION-40 | AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE
In that he, On 11th April 2019, at about 1850 hrs, while performing duty as Second-in-Command of 85 Bn BSF induced his subordinate officer, No.100092637 Inspector (GD) J Jebaraj of ‘C’ Coy telephonically by making whatsapp call from his mobile No.7739577117 to the mobile no.9600420796 used by J Jebrj to facilitate cattle smuggling from India to Bangladesh through the AoR of BOP Sodepur on the night intervening 11-12 April 2019. |
| THIRD CHARGE BSF ACT, 1968 SECTION-40 | AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE
In that he, After he had telephonically instructed No.873657710 ASI (G) Ravindra Kumar, Offg Inspector (G) of 85 Bn BSF No.100092637 Inspector (GD) J Jebaraj to tell No.958550069 HC(G) Raju Shahi of 85 Bn BSF to talk to him on whatsapp and when HC(G) Raju Shahi called him on whatsapp sometime between 1900-2000 hrs on 11th April 2019, the accused officer induced him to facilitate smuggling of cattle from India to Bangladesh through the AoR of BOP Sodepur, 85 Bn BSF on the night intervening 11-12 April 2019. |
2. The petitioner was tried by the General Security Force Court (GSFC). The petitioner pleaded “not guilty” to the aforesaid 3 charges. Upon conducting the trial and holding the examination of witnesses for prosecution and defence, the GSFC found the petitioner guilty of the first and second charges but “not guilty” of the third charge. Reasons were recorded for such findings. The GSFC sentenced the petitioner “to take rank and precedence as if his appointment as Second-in-Command bore the date, first day of June 2022”. The said sentence was sent before the Confirming Authority for confirmation. The Confirming Authority scrutinised the trial proceedings of the GSFC. It observed that the finding of “not guilty” on the third charge was against the weight of evidence on record and the sentence awarded by the Court on the first and second charges were also very lenient and not commensurate to the gravity of the charges proved against the officer.
3. Accordingly, as per the provision of Section 113 (1) of the BSF Act, 1968 the case of the petitioner was remanded for revision of findings of the third charge. Also it had to be considered whether the sentence awarded on the second and third charges was commensurate to the gravity of the charges.
4. The revision trial was conducted with effect from August 8, 2022 to August 10, 2022. The GSFC found that the petitioner was “not guilty” on the third charge but sentenced afresh on the aforesaid first two charges. The petitioner was sentenced “to
The DG did not lack jurisdiction to issue the show-cause notice for termination under Rule 20 of the BSF Rules, 1969.
Confirming authority must provide clear justifications for disagreeing with Security Force Court findings and follow principles of natural justice in disciplinary actions.
Termination of service is permissible under Section 10 of the Border Security Force Act when the trial is deemed impracticable or inexpedient, especially after non-confirmation of charges by the Conf....
The principle of double jeopardy and the authority of the Confirming Authority to confirm findings and sentences under the Army Act.
Judicial review under Article 226 extends to the examination of the decision-making process in disciplinary proceedings, ensuring the findings are rational and supported by credible evidence.
Dismissal without adherence to natural justice principles and statutory procedures is invalid, necessitating reinstatement of the employee.
Punishments must be proportionate to the misconduct and not shock the conscience of the court.
The main legal point established in the judgment is that the proceedings conducted in accordance with the BSF Act and Rules, and the plea of guilty entered by the petitioner during the Summary Securi....
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