The Commandant of a unit can issue a chargesheet and preside over a Summary Security Force Court without violating principles of natural justice, provided the accused is given adequate opportunity to defend themselves.

JUDGMENT :

Tapabrata Chakraborty, J.

1. The present appeal has been preferred by Union of India and its functionaries challenging the judgment dated 24.11.2022 delivered by the learned Single Judge in the writ petition preferred by one Suvasis Dey (hereinafter referred to as Suvasis) being WPA 2074 of 2008.

2. The facts in brief are as follows. Suvasis was initially appointed to the post of Constable under the 46 battalion (in short, 46 Bn) of the Border Security Force (hereinafter referred to as BSF) on 18.02.2003. While he was working in the said post, the Commandant of the 46 Bn being the respondent no.6/ the appellant no.5 herein suspended Suvasis vide memo dated 10.06.2007 in contemplation of a disciplinary proceeding. Thereafter, pursuant to a memo dated 23.07.2007 issued by the appellant no.5, the Record of Evidence (in short ROE) proceedings were initiated. The ROE was prepared upon hearing Suvasis and granting him opportunity to cross-examine the prosecution witnesses and to produce defence witnesses. Upon conclusion of the said proceedings, the copies of the same were served upon Suvasis vide memo dated 22.09.2007 issued by the appellant no.5. Thereafter vide memo dated 22.09.2007, the appellant no.5 took a decision to try Suvasis by holding a Summary Security Force Court (in short SSFC). Suvasis was thereafter tried by SSFC and vide memo dated 24.09.2007, the said appellant no.5 imposed a punishment of dismissal from service and Suvasis was struck off from the strength of 46 Bn. Aggrieved by the said order, Suvasis submitted a statutory petition on 08.10.2007 but the same was dismissed by an order dated 31.12.2007. Challenging inter alia the order of the appellate authority, Suvasis preferred the writ petition in the year 2008 and the same was disposed of about 14 years thereafter by the judgment impugned in the present appeal.

3. Records further reveal that the stay application filed in connection with the appeal was disposed of by an order dated 01.04.2024. The operative part of the said order runs as follows:

‘Prima facie, we do not find any reason to interfere with the order passed by the learned Single Judge. However, the appellants upon depositing a sum of Rs. 18 lacs with the learned Registrar General within a period of three weeks from date shall be entitled to stay of operation of the impugned order till the disposal of the appeal. There shall be an unconditional stay of operation of the impugned order for a period of three weeks However, in the event the aforesaid sum is deposited in the meantime, the stay shall continue till the disposal of the appeal’.

Pursuant to such direction the amount of Rs. 18 lacs was deposited by the appellants.

4. Drawing our attention to the definition of Commandant as provided under Section 2 (f), Section 70 of the BSF Act and Rule 51 (3) (iii) of the Border Security Force Rules, 1969 (in short, BSF Rules), Mr. Majumder, the learned Assistant Additional Solicitor General submits the Commandant of the unit is the sole person competent to constitute and conduct the SSFC. Neither in the statutory petition nor in the writ petition it was alleged that the Commandant of the unit had no jurisdiction to issue the chargesheet or to hold the SSFC and as such the impugned judgment was delivered considering an issue alien to the pleadings. Such argument, as advanced, was glossed by the learned Single Judge and no finding was returned on the same.

5. He argues that no prejudice had been caused to Suvasis since the Commandant of Suvasis’s unit issued the chargesheet and held the SSFC. It is not a case that the Suvasis was denied cross-examination of the witnesses or was prevented from citing his defence witnesses. In the said conspectus, there had been no violation of the principles of natural justice.

6. Placing reliance upon an unreported judgment delivered by the Hon’ble Supreme Court in case of Union of India versus Shri Dickson Chand Marak, Mr. Majumder argues that the said judgment is clearly