Confirming authority must provide clear justifications for disagreeing with Security Force Court findings and follow principles of natural justice in disciplinary actions.

JUDGMENT :

Sujoy Paul, J.

1. In this intra Court appeal, the challenge is mounted to the order dated 11.01.2017 passed by the learned Single Judge in WP 10263 (W) of 2015 whereby writ application was allowed and all show cause notices impugned therein and the basic order dated 01.03.2013 were set aside.

Factual background:

2. The appellant was working as constable in the Border Security Force. The second respondent issued a charge-sheet dated 20th May, 2011 to the respondent/employee under Section 46 of Border Security Force Act, 1968 (BSF Act). The employee was committed to be tried by a General Security Force Court (GSFC). After examining the witnesses, the GSFC prepared its findings on 11.06.2011. In turn, the second respondent by order dated 22.06.2011 declared that the disciplinary proceeding against the employee has been finalized by the GSFC and employee has been acquitted from all charges.

3. Since, the said finding of GSFC was subject to confirmation under Section 103 and 107 of BSF Act, the matter was placed before the competent/confirming authority.

4. The Special Director General (East)/3rd respondent was the confirming authority who passed the orders dated 01.03.2013 and 01.05.2013.

5. On conclusion of revision proceeding, the revisional authority presided over by 5th respondent announced its findings subject to confirmation by competent authority. The revisional GSFC opined that it adhered to its earlier finding that employee is ‘not guilty’ of the charge. Since, finding requires a confirmation by the statutory authority, the said finding was presented for confirmation before 3rd respondent, the Additional Director General. The said authority opined that he does not confirm the findings of the GSFC because it is against the weight of evidence. He further recorded that trial of accused person is inexpedient or impracticable as fresh trial for the said offence by another security force court is not permissible. However, on account of the misconduct as per available evidence on record, in his opinion, further retention of accused person was undesirable and detrimental to the discipline of the force. Hence, he directed commandant to take necessary action to terminate the services after observing prescribed procedure under Section 11 of BSF Act read with Rule 22 (2) of the Border Security Force Rules, 1969 (BSF Rules).

6. In purported compliance with the said order of Additional Director, a notice dated 15.04.2015 was issued by commandant 125th Battalion of BSF as to why services of employee should not be terminated because of alleged misconduct. This show cause notice along with other similar notices were called in question in WP 10263 (W) of 2015. The learned Single Judge set aside the basic order dated 01.03.2013 and all the impugned show cause notices. The present intra court appeal assails this order of learned Single Judge dated 11.01.2017.

Contention of appellant:

7. The first and foremost contention is that the Director General or any prescribed officer in exercise of power under Section 118 of BSF Act may annul the proceedings of Security Force court on the ground that they are illegal and unjust. Thus, in the instant case, the decision of confirming authority is in consonance with the