JUDGMENT

Dr. S.Muralidhar, J.

1. This appeal is directed against the impugned order dated 18th January 2002 passed by the learned Single Judge dismissing the Appellant's Civil Writ Petition No. 410 of 2002.

2. The Appellant was enrolled with the Border Security Force ('BSF') as a Constable on 8th January 1989. In July 2000 he was posted on the Indo-Bangladesh Border. On 29th July 2000 he was on duty at No.2 BOP Kanchantar along with Constable Narendra Prasad from 7 am in the morning. There are two versions of what happened on that day. According to the Adjutant Mange Ram he along with Constable/Driver Bharat Singh were coming from BOP Alipur towards BOP Kanchantar. At about 8.15 am when he reached OP No.1 of BOP Alipur he noticed 25 to 30 cattle heads going from the Indian side to the Bangladesh by the side of OP No.2 of Kanchantar BOP along the bandh. According to the Adjutant when he reached OP No.2 of BOP Kanchantar he observed that the Appellant Constable Raj Kumar was on the OP Tower and the Constable Narendra Kumar was sitting in the OP hut. On questioning them as to how cattle were found going from India to Bangladesh in their presence, they failed to give any reply. He then summoned the BOP Commandant Kanchantar SI C.K. Muddappa to the site showing him the fresh hoof marks of cattle heads going towards Bangladesh side and fresh cow dung. He directed the SI to change the personnel at the OPs.

3. The Appellant's version is different. According to him at about 8 am 20 to 25 cattle heads came from the Bangladesh side and started crossing near the Indian border. He then told Constable Narendra Prasad that the Bangladeshi cattle should be pushed back. Some cattle from the Indian side were also crossing from the area which was a routine occurrence. The Appellant admits that the Adjutant Mange Ram came from the BOP Alipur side on a motor cycle and enquired about the cattle and that Constable Narendra Prasad replied that cattle were from the Bangladesh and crossing near the Indian border and were just being pushed back. The Adjutant Mange Ram then showed them the foot marks, the cow dung and dirty water and the Appellant and Narendra Prasad replied that these were of the Indian cattle which were crossing there. However, upon questioning by SI C.K. Muddappa they replied that they had not caused any cattle to cross from India to Bangladesh.

4. It appears that on 29th July 2000 a report was prepared against the Appellant that he had while on duty at OP No.2 BOP Kanchantar "improperly and without authority allowed to cross approximately 20 to 30 cattle heads towards Bangladesh" and thereby committed an act "prejudicial to the good order of the Force" in terms of Section 40 of the Border Security Force Act, 1968 ('BSF Act'). Two days thereafter on 31st July 2000 the hearing of the charge and recording of evidence commenced. On the side of the prosecution Mange Ram, the Adjutant of 102 Batallion was examined as PW-1, SI C.K. Muddappa as PW-2, Constable Bharat Singh as PW-3, Constable Santan Singh as PW-4, Constable Ramesh Chand as PW-5 and Inspector Mohan Singh as PW-6. The examination of these witnesses concluded on 4th August 2000 itself. Thereafter the statement of the Appellant was recorded on the next date i.e. 5th August 2000. Additional evidence was recorded on 10th September 2000 of all these witnesses and a further statement of the accused was recorded.

5. At the end of the proceedings on 27th September, 2000 a charge sheet was issued to the Appellant in terms of Rule 53(2) of the BSF Rules, 1969 ('BSF Rules') to the effect that while on duty at OP No.2 of Kanchantar BOP, the Appellant had shown negligence in the discharge of his duties and had "improperly and without authority allowed to cross approximately 25 to 30 cattle heads towards Bangladesh." On the very next date i.e. 28th September 2000 the Commandant passed an order finding the Appellant guilty of the charge and sentenced him to be dismissed from service