JUDGMENT

Anil Kumar, J.

1. The petitioner has challenged the Summary Security Force Court trial conducted against him and his consequent dismissal from service by order dated 28th April, 1999 and he has also sought the quashing of the same on the ground of being unconstitutional and violative of Articles 14 & 16 of the Constitution. The petitioner has further sought the quashing the order in appeal passed by the respondents, dismissing his appeal. He has in addition sought his reinstatement with full back wages and all consequential reliefs.

2. Brief relevant facts to comprehend the dispute are that the petitioner was enrolled with the Border Security Force at BSF STC Bangalore and after his enrollment he completed his basic training. Thereafter, he was posted to the unit on 18th February, 1994. The petitioner was thereafter, posted in `A' Coy which was deployed at Border Out Post (BOP) Govindpur.

3. On 7th September, 1998, the petitioner was on operation duty at Gate No.16 of IBB fencing, which was the responsibility of `A' Coy. The duty schedule of `A' Coy was from 0600 hours to 1200 hours.

4. At about 0945 hours on the same day, Inspector Murari Singh came to the O.P and asked the petitioner whether six men had tried to push through six heads of cattle towards Bangladesh from gate No.16. According to the petitioner, he replied that the said cattle were grazing at about 150 feet inside the Indian territory. Thereafter, the Inspector ordered the petitioner and the Sentry at O.P duty to catch both the men and their cattle. They were chased by the petitioner, however, they still managed to enter the village and therefore could not be caught.

5. According to the respondents, Inspector Murari Singh had rather observed that few heads of cattle were going from the side of the village Govindpur and heading towards the international border and were about to reach Bangladesh through gate No.16. On seeing through his binoculars, he saw that six heads of cattle with six persons were rushing towards gate No.16. On realizing the seriousness of the situation, he rushed on a motorcycle to gate No.16 and noticed that 10 cattle with 10 persons were to cross the international border (IB). Inspector Murari Singh had asked the petitioner and Ex.Lnk Durug Singh as to how 10 cattle had crossed through Gate No.16 and were about to cross the international border with men. However, neither the petitioner nor the other person could give any satisfactory reply. Inspector Murari Singh then had ordered the petitioner to catch the six persons running away with their cattle, however, all the six persons took their cattle to village Govindpur and thereby could not be caught. Inspector Murari Singh thus observed that the petitioner deliberately showed no interest in catching the escaping cattle with smugglers and on checking the gate register, it was also realized that no entry was made in the register of the cattle crossing the IB through gate No.16 which is a mandatory requirement as per SOP.

6. The Company Commander also made enquiries, however, no satisfactory replies were given. Therefore, a detailed report of the case was forwarded to Bn.HQ. The petitioner was, thereafter, called to Bn.HQ and an ROE vide order No.14421-24 dated 15th September, 1998 was ordered. On completion of the ROE, the SSFC trial was held on 28th April, 1999 which ultimately passed the sentence of dismissal of the petitioner from service which was thereafter also confirmed by the DIG, BSF, Calcutta on 26th July, 1999.

7. According to the petitioner, after the incident of 7th September, 1998 an order was issued on 15th September, 1998 suspending the petitioner and his companion and after 4 days an ROE was ordered in terms of Rule 45 of the BSF Rules on the charge under Section 40 of the BSF Act for failing to detect 16 cattle crossing over to Bangladesh.

8. The petitioner asserted that the SSFC was ordered only after 7 months on 19th April, 1999 since the incident