The court emphasized the importance of considering mitigating factors and differential roles of individuals before imposing disciplinary punishment.

Heard Mr. S. Chouhan, the learned counsel for the petitioner. The respondents are represented by Ms. A. Gayan, the learned Central Govt. Counsel (CGC).

2. The petitioner was a Constable in the 57th Battalion of the Border Security Force (BSF) and while he was on Naka duty along with Head Constable Dwarika Prasad, both members of the ‘G’ Coy Unit were placed under suspension by the Commandant of the 57th Battalion of the BSF Patiram (WB), by the order dated 7.6.2007 (Annexure-A). According to the suspension order, the two BSF men had facilitated crossing of 15 cattle to Bangladesh at about 3:00 Hrs. on 7.6.2007 by opening the Fencing Gate No.19.

3. A Court of Inquiry (COI) was constituted to investigate into the circumstances of the cattle crossing over to Bangladesh and before the Inquiry Officer, the delinquent constable stated that it was the Head Constable Dwarika Prasad who opened the Gate and it was further stated by him that the Head Constable had himself dealt with the cattle smugglers, from whom payment was expected to be received. The Head Constable Dwarika Prasad in his statement before the COI admitted that he opened the fencing gate and he further stated that the payment for facilitating the cattle cross over was to be received later. Consequently the Court of Inquiry opined that both the Head Constable and the Constable are blameworthy for facilitating cattle smuggling through Gate No.19 and accordingly strict disciplinary action was recommended against the two errant personnel.

4. The proceeding of the Court of Inquiry was partially approved by the Commandant by observing that disciplinary action should also be taken against another Head Constable Rai Singh, who while on patrolling duty, had failed to detect the opening of the border gate and the cattle crossing.

5. Thereafter a Summary Security Force Court Proceeding (hereinafter referred to as ‘the Summary Court’) was started under Chapter-XI of the Border Security Force Rules, 1969 (hereinafter referred to as ‘the BSF Rules’). The Summary Court sought the response of the charged personnel when the delinquent constable pleaded guilty to the charge. But since non-guilty plea was entered by the Head Constable, the Summary Court went into the merit of the charges. Eventually guilty verdict was given against both the Head Constable and the Constable. Then the previous records of the two delinquents were taken into account and the Summary Court referred the matter to the disciplinary authority. In consequence of the recommendation of the Summary Court, the disciplinary authority imposed the punishment of dismissal from service and ordered that the names of the two delinquents be struck off from the BSF Unit w.e.f. 13.6.2007 (Annexure-J). The aggrieved constable approached the Appellate Authority but the Director General, BSF rejected the Appeal Through the order dated 4.10.2007 (Annexure-L).

6. The petitioner contends that Head Constable Dwarika Prasad was the custodian of the key and the evidence shows that he himself opened the BSF Fencing Gate to facilitate the movement of cattle to Bangladesh and therefore it is argued that the petitioner being a sub-ordinate personnel under the Post Commander, should not have been meted out the same punishment as the Head Constable.

7. Mr. S. Chouhan, learned counsel refers to Sub-Rule (4) of Rule 101 of the BSF Rules to project that mitigating factors should have been considered by the Authorities before deciding on the punishment and according to him because the major role in the cattle smuggling incident was of the Head Constable, the punishment of dismissal from service is disproportionate for his subordinate.

8. Ms. A. Gayan, the learned C.G.C. refers to the counter affidavit filed by the respondents on 29.5.2008 to argue that the delinquent constable was given the opportunity to highlight the mitigating circumstances for the proposed sentence. But unfortunately the C.G.C. was unable to show in what manner the A