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IN THE HIGH COURT AT CALCUTTA
RAJA BASU CHOWDHURY, J.
Hazer Biswas – Petitioner
Versus
Union of India and Others – Respondents
WPA No. 18232 of 2003
Decided On : 20-06-2023
CONSTITUTIONAL LAW - BSF RULES - DISCIPLINARY PROCEEDINGS - SECOND ENQUIRY - JURISDICTION - VALIDITY - SUMMARY SECURITY FORCE COURT (SSFC) - CHARGE-SHEET - SECTION 46 - ATTACHMENT TO ANOTHER UNIT - FAIRNESS - NATURAL JUSTICE - DOUBLE JEOPARDY - WRIT PETITION - DISMISSAL - FACTUAL AND LEGAL ANALYSIS.
Fact of the Case:
The petitioner, a BSF constable, was dismissed from service after a disciplinary proceeding for allegedly committing a civil offense under Section 46 of the BSF Act. He challenged the dismissal order, arguing that the second departmental enquiry was invalid and illegal as he was exonerated from the same allegations in a previous enquiry. He also contended that the charge-sheet issuing authority lacked jurisdiction, that he was not permitted to choose a friend of the accused, that the defense witnesses' statements were not recorded, and that he was not allowed to cross-examine the prosecution witnesses properly.
Finding of the Court:
The court found that the petitioner was reinstated without prejudice to the rights and contentions of the parties, and that the second enquiry was not barred by the principle of double jeopardy. It also held that the petitioner was granted an opportunity to defend himself and that the proceedings were conducted in a free and fair manner. The court further found that the Appellate Authority had duly considered the petitioner's case and had dismissed the same by a detailed judgment.
Issues: 1. Whether a second departmental enquiry can be initiated against an employee who was exonerated in a previous enquiry for the same allegations? 2. Whether the charge-sheet issuing authority had jurisdiction to initiate the second enquiry? 3. Whether the petitioner was denied the right to choose a friend of the accused? 4. Whether the defense witnesses' statements were not recorded? 5. Whether the petitioner was not allowed to cross-examine the prosecution witnesses properly?
Ratio Decidendi: 1. The court held that the second enquiry was not barred by the principle of double jeopardy as the petitioner was reinstated without prejudice to the rights and contentions of the parties, meaning that the right to proceed afresh was reserved. 2. The court found that the charge-sheet issuing authority had jurisdiction to initiate the second enquiry as the petitioner was attached to another unit to remove any allegation of unfairness. 3. The court held that the petitioner was not denied the right to choose a friend of the accused as there was no contemporaneous document to demonstrate that he was denied such right. 4. The court found that the defense witnesses' statements were recorded and that the petitioner was permitted to cross-examine the minor girl, who was the main prosecution witness. 5. The court held that the petitioner was not prevented from cross-examining the prosecution witnesses properly as the extent of cross-examination revealed that the petitioner had left no stone unturned.
Final Decision: The court dismissed the writ petition, finding no irregularity in the order passed by the SSFC or by the Appellate Authority dated 23rd October 2003.
JUDGMENT :
RAJA BASU CHOWDHURY, J.
1. The present application has been filed, inter-alia, challenging the order dated 23rd October, 2003 issued by the Director General, Border Security Force (in short BSF).
2. It is the petitioner’s case that the petitioner was appointed as a Constable in the BSF in 84-Battalion in the year 1981. In course of his employment he was transferred and posted at several places and he worked as per direction of the higher authorities.
3. In the year 1992, the petitioner was transferred and posted at 12Battalion, Simanagar, Nadia. While working as Naik at Simanagar, he claims to have been falsely implicated in a case initiated on 8th July, 1993, on the basis of a complaint made by one Gorak Nath Prosad before the Deputy Inspector General, B.S.F., Calcutta, alleging therein that on 29th September, 1992, the petitioner had outraged the modesty of his minor daughter.
4. Following the aforesaid, the petitioner was placed under suspension and a charge-sheet dated 30th November, 1993 was issued. After holding a Summary Trial, before Summary Security Force Court, the petitioner was dismissed from service and struck off from the strength of the unit with effect from 3rd January, 1994 (AN).
5. The petitioner claims that subsequently, vide order dated 5th March, 1994, the Competent Authority, being the DIG, Security, Headquarters, Calcutta, on a review of the Summary Trial before the Summary Security Force Court (in short SSFC), in the writ petitioner’s case had set aside the proceedings, including conviction and sentence on the ground of procedural irregularities in the said proceedings and had accordingly directed reinstatement of the petitioner without prejudice to the rights and contentions of the parties.
6. Following the aforesaid, the petitioner was reinstated in service and was also put under suspension vide order dated 11th May, 1994. Simultaneously, a charge-sheet under Rule 53(2) of the BSF Rules, 1969 (hereinafter referred to as the said Rules) was served on the petitioner. It was categorically provided therein that the proceedings shall be held before SSFC. The aforesaid charge is reproduced herein-below:
Rule - 53(2)
The accused No. 81844028 LNK (Now NK) Hazer Biswas of 12 Bn BSF (now attached with 92 Bn BSF) is charged with:
BSF ACT: COMMITTING A CIVIL OFFENCE THAT IS TO SAY
Sec 46: USING CRIMINAL FORCE TO A WOMAN WITH INTENT TO OUTRAGE HER MODESTY PUNISHABLE U/S 354 IPC.
In that he,
While performing the duties of Nursing Assistant in 12 Bn BSF M I Room, on 29th Sept’ 92; used criminal force to Miss X, age 12 Yrs, daughter of No. 74002877 LNK Gorakh Nath Prasad of 12 Bn BSF (Now posted to 173 Bn BSF) intending to outrage her modesty.
PLACE: HQ92 BN BSF
Dated: 11.05.1994
(VIMAL MOHAN)
COMMANDANT
92 BN BSF
To be tried by SSFC.”
Note: In this order the name of the minor girl has been masked and renamed as Miss X.
7. Simultaneously, the petitioner was also served with a notice dated 12th May, 1994, intimating that the proceedings of the court shall take place on 14th May, 1994 and the petitioner shall be entitled as per the provisions of the BSF Act and Rules framed thereunder to choose any friend who can remain present during trial.
8. After conclusion of such proceedings, by an order dated 8th June, 1994, sentence was promulgated by the court and the petitioner was dismissed from service and accordingly, struck off from the strength of the 12-Battalion with effect from 8th June, 1994.
9. Challenging the aforesaid order of dismissal, a writ petition was filed before this Hon’ble Court, which was registered as C.O. 701 (W) of 1994.
10. By an order dated 1st April, 1998, a coordinate Bench of this Hon’ble Court was pleased to dismiss the said application ex-parte on merit, inter-alia, by holding as follows:
The involvement of a prosecution witness as the "friend of the accused" in a disciplinary proceeding violates the principles of natural justice and renders the proceedings invalid.
The main legal point established in the judgment is that the respondents followed the mandate of the BSF Act, 1968 and the Rules of 1969 in conducting the proceedings against the petitioner, leading ....
The court emphasized the importance of adhering to court directions and ensuring fairness in the disciplinary proceeding.
The Summary Security Force Court lacked jurisdiction to try civil offences under Section 46 of the BSF Act, except for simple hurt or theft, as per Rule 47 of BSF Rules.
Disciplinary proceedings require clear communication of specific charges and independent consideration of a respondent's objections to uphold principles of natural justice.
The court emphasized the importance of adhering to procedural fairness in conducting inquiries and highlighted that the proportionality of punishment should be considered in light of the seriousness ....
The sufficiency of evidence, compliance with procedural rules, and the gravity of the offence committed by the petitioner were the central legal points established in the judgment.
The principles of natural justice, including the right to be heard and the right to a fair and impartial hearing, must be adhered to in disciplinary proceedings against government employees.
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