The Summary Security Force Court proceedings were flawed due to significant delay and lack of adherence to natural justice, rendering the dismissal of the petitioner unlawful.

JUDGMENT :

SHALINDER KAUR, J.

1. The present petition has been filed by the petitioner, who was enrolled in the Border Security Force (BSF) on 15.04.2008 as a Constable and was dismissed from service on 10.02.2017, assailing the Order dated 15.09.2017, whereby his Statutory Petition under Section 117(2) of the BSF Act, 1968, filed before the Director General (DG), BSF against the Order of dismissal from service dated 10.02.2017, passed by the Summary Security Force Court (SSFC), was dismissed. The petitioner has also prayed for setting aside of the SSFC proceedings, the findings thereof, and the sentence imposed on the petitioner.

2. The petitioner has impleaded the Union of India as respondent no. 1, the Director General, BSF, New Delhi as respondent no. 2, the Commandant 5^th Battalion (Bn.), BSF, Amritsar, Punjab, and Inspector S.S. Bhosle from 5^th Battalion (Bn.), BSF, Amritsar, Punjab, as respondent no. 3 and 4, respectively.

BRIEF FACTS

3. To set the stage for adjudication, it will be apposite to first elucidate the factual framework of the present case. The petitioner joined the BSF as a Constable on 15.04.2008. In November, 2013, he was posted to the 5^th Bn. at Dantiwada, Gujarat. On 28.03.2016, while on leave, he met with an accident and sustained a fracture in the ‘Right Olecranon’. The petitioner underwent surgery for the aforesaid injury at the Civil Hospital, Ahmedabad, however, the same was not completely successful. As the petitioner was not fit for SHAPE-I Medical Category, he was placed in the Low Medical Category S1H1A2(U)(T-14) P1E1 (for six-months) with effect from 28.06.2016 till 15.12.2016.

4. Thereafter, in September 2016, the said Bn. of the petitioner moved to Khasa near Amritsar, Punjab. It is the case of the petitioner that his treatment was ongoing and the Orthopaedic Surgeon had booked his appointment for operation on 15.11.2016 in Civil Hospital, Ahmadabad, however, he was not granted leave in this regard and he was not transferred to Ahmadabad despite his request. Later, on 11.12.2016, due to the extreme cold weather, he experienced acute pain in his right hand elbow and requested the Coy Commander for an interview with Inspector General (IG) with respect to his request for transfer to Ahmadabad, Gujarat, which was denied. Further, it is his case that the Coy Commander told him that he was merely faking it and that he had no such illness and abused him. Nonetheless, on 12.12.2016, the petitioner was allowed to go to the Composite Hospital at the Frontier Head Quarter (HQ), Jalandhar. However, no medical officer was available, due to it being a gazetted holiday, thus, the petitioner returned and informed the Coy. Commander accordingly.

5. The petitioner further claimed that on 12.12.2016, despite the respondents being fully aware of his persistent pain in his right elbow, he was assigned to perform sentry duty from 1300 hrs to 1900 hrs at Tower No. 6 within the premises of Frontier Headquarter, Jalandhar. The petitioner was not issued with his personal weapon and ammunition, as he was not able to handle the weapon. He was asked to take over the post from the previous sentry. The petitioner managed to reach the place of duty at 1300 hrs and stood there for some time. However, when the pain became unbearable, he called the Inspector S.S. Bhosle on his mobile phone and requested to be relieved, and in response, the Inspector started shouting and abusing the petitioner and told him that he would teach him a lesson for malingering.

6. It was further claimed by the petitioner that Inspector S.S. Bhosle came to the Tower No. 6 and took the 5.56 mm INSAS Rifle, which was kept by the previous sentry- Constable Shriniwash Singh, and cocked it, consequent to which, one round was loaded in the chamber of the rifle. The Inspector, then called the Coy Commander- Assistant Commandant (AC) Ram Singh Bhadoria, and Assistant Sub- Inspector (ASI) Meer Singh, and fabricated a false case stating that the petitioner had cocked