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2018 Supreme(Guj) 1180
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, J.
Nanuki Prasad - Appellant
Vs.
Union of India and Ors. - Respondents
R/Special Criminal Application No. 2192 of 2010
Decided On : 12-09-2018
For the Appellant : K.R. Mishra.
For the Respondents: Nirzar S. Desai.
Headnote:
(A) Constitution of India – Article 226 – Though there is no absolute bar against a plea going to root of the matter being allowed to be raised for the first time in a petition under Article 226 of Constitution, in appropriate circumstances, Court may refuse to permit such a point being raised for the first time in a writ petition on the ground that having regard to facts and circumstances of case petitioner stands precluded from challenging jurisdiction of authority passing impugned order. (Para 44)
(B) Service Law – Dismissal – From Border Security Force – Writ applicant, on his own free will and volition, agreed or rather gave consent to be tried by a General Security Force Court – If writ applicant had any grievance with regard to decision of Inspector General, then he could have raised the same at an appropriate stage itself before appropriate forum – Decision of Inspector General, in exercise of his discretionary powers under Section 80 of the Act that writ applicant to be tried by a General Security Force Court, could have been challenged even by filing a writ application before this Court at an appropriate time on the ground that same is without any application of mind and bereft of any cogent reasons – Writ applicant very consciously submitted to the jurisdiction of the General Security Force Court – Entire trial came to an end before General Security Force Court – Even while preferring a representation in form of an appeal addressed to Government of India, Ministry of Home Affairs, such contention has not been taken up – Writ application rejected. (Paras 34 and 47)
J.B. Pardiwala, J.
1. By this writ application under Article 226 of the Constitution of India, the writ applicant, a dismissed employee of the Border Security Force, has prayed for the following reliefs:
"7(A) That this Honourable Court may be pleased to issue appropriate writ, order or direction in the nature of mandamus or certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 21st September 2009 passed by the Director General, BSF - respondent No. 2 herein in rejecting the petition filed by the petitioner and confirming the order passed by the General Security Court at Annexure - A to the petition.
(B) Pending admission, hearing and final disposal of this petition, this Honourable Court may be pleased to stay the implementation, execution and operation of the impugned order dated 21st September 2009 passed by the Director General, BSF - respondent No. 2 herein in rejecting the petition filed by the petitioner and confirming the order passed by the General Security Court at Annexure-A to the petition.
(C) Pending admission, hearing and final disposal of this petition, this Honourable Court may be pleased to release the petitioner on bail on any suitable terms and conditions which this Honourable Court deems just and proper.
(D) This Honourable Court may be pleased to pass such other and further orders as the nature and circumstances of the case may require.
(E) Since the petitioner is detained in Sabarmati Central Jail, Ahmedabad and the facts of the present case are taken from the record, filing of the affidavit in support of this petition may be dispensed with."
2. The case of the writ applicant, in his own words, as pleaded in the writ application, is as under:
"3.1 The petitioner states and submits that the petitioner joined BSF on 11st August 2001 at STC, Borer Security Force, Tekanpur. After completing the basic training at Gogoland and Indore, the petitioner joined 133 Battalion, BSF at Ramgarh, Rajasthan and since then he served there. It is respectfully submitted that in the month of September 2008 the petitioner was transferred from 133 Battalion, BSF, Ramgarh and was attached with Sector HQ Bsf, Gandhinagar.
3.2 The petitioner states and submit that after reporting for duty at HQ BSF, Gandhinagar, the petitioner was assigned the duty of working as Security Aide to one Dr. (Mrs) Navgeet Kaur, AC/MO. It is respectfully submitted that the petitioner's family which consists of his son and wife was also staying with him and therefore the petitioner took outlive permission from the Commandant of 133 Battalion, BSF and started living with his family.
3.3 The petitioner states and submit that as the petitioner was assigned the duty of working as Security Aide to Dr. (Mrs) Navgeet Kaur, AC/MO he went to the Government Quarter of said Dr. (Mrs) Navgeet Kaur located in the BSF Campus, Gandhinagar. One G. Satish, Constable was also assigned the duty of working as Security Aide to Dr. (Mrs) Navgeet Kaur. After reporting for duty to Dr. (Mrs) Navgeet Kaur, she informed the petitioner that the primary duty of the petitioner and another Constable, G. Satish will be to take care of and look after her minor son, Master Ojaswin. She further told the petitioner that the petitioner as well as said G. Satish should coordinate with each other and perform the duties in the kitchen as well. It is respectfully submitted that thus the petitioner and the other Constable shall have to manage the house and look after Master Ojaswin.
3.4 The petitioner states and submits that on 13th March 2008 at about 14.00 hours when the petitioner, after performing the duty the petitioner went to his home for lunch. At that time, the petitioner's wife informed the petitioner that she wanted to go to market for some work, the petitioner should accompany her. Then, the petitioner told her that the
