JUDGMENT & ORDER (ORAL)

Heard Mr. KD Chetri, learned counsel for the petitioner and Mr. N Baruah, learned Central Govt. Counsel for the respondents.

[2] By way of this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 06-12-2006 and for re-instatement in service.

[3] Petitioner was a Constable in the Border Security Force (B.S.F). At the relevant point of time he was serving in the ‘G’ Coy under 94 Battalion B.S.F., Roshan Bagh, Murshidabad (West Bengal).

[4] On 03-12-2006, a charge-sheet was issued by the Commandant, 94 Battalion B.S.F. under section 46 of the Border Security Force Act, 1968 (BSF Act) charging the petitioner of committing a civil offence of agreeing to accept or attempting to accept a gratification, other than legal remuneration as a motive or reward for doing or forbearing to do an official act punishable under section 7 of the Prevention of Corruption Act, 1988. The charge against the petitioner was that on 23-08-2006 while he was discharging his duty at Border Outpost, Meghna from 1200 hrs to 1800 hrs, he had improperly allowed safe passage to 4 cattle heads from India to Bangladesh through gate No.121 for the purpose of smuggling which was an attempt to accept gratification other than legal remuneration, as a motive or reward for doing or forbearing to do an official act.

[5] It appears that the petitioner was tried by a Summary Security Force Court on 06-12-2006 and for conducting the trial, petitioner was placed under close arrest on 06-12-2006.

[6] In the Summary Security Force Court 6 (six) persons deposed as witnesses including the petitioner. On conclusion of the Summary Security Force Court proceeding, the Commandant recorded a finding on 06-12-2006 itself opining that petitioner was guilty of the charge and consequently imposed the sentence “to be dismissed from service” on the petitioner. Accordingly, petitioner was dismissed from the service of B.S.F with effect from 06-12-2006 and his name was struck off from the rolls of B.S.F.

[7] Consequent upon imposition of the penalty as above, petitioner was released from close arrest at 12.30 hrs on 06-12-2006.

[8] Petitioner’s wife then submitted representations dated 14-12-2006 before the Commandant and other higher authorities requesting the said authorities to recall the punishment or atleast to modify the penalty imposed. Since no decision was taken on the said representations, the present writ petition has been filed.

[9] This Court by order dated 14-03-2007 had admitted the writ petition for hearing by issuing rule.

[10] Respondents have filed a common counter affidavit. It is stated that on 23-08-2006 distinct hoof marks of cattle were found on the wet soil leading from the duty place of the petitioner towards the boundary; no hoof marks of cattle returning were found by any of the witnesses. The petitioner could not explain the situation in the Summary Security Force Court. Investigation revealed involvement of the petitioner in providing a safe passage for cattle smuggling. On 30-08-2006, petitioner was put on offence report and was heard by the Commandant. After hearing the petitioner, the Commandant ordered for preparation of record of evidence which was prepared by the Assistant Commandant in presence of the petitioner. As per the record of evidence, petitioner was given opportunity to cross examine the witnesses or to produce defence witness on his behalf. Upon scrutiny of the record of evidence submitted, the Commandant decided to try the petitioner by a Summary Security Force Court after approval of the DIG. Petitioner was tried by the Summary Security Force Court on 06-12-2006 which was conducted as per the prescribed procedure. Copies of record of evidence and charge sheet were made available to the petitioner. A friend of the accused was detailed as per the choice of the petitioner and the petitioner was given sufficient opportunity to defend himself. After conclusion of the trial, petit

Click Here to Read the rest of this document