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2010 Supreme(J&K) 60
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Mohd. Yaqoob Mir, J.
Suresh Kumar - Appellant
Versus
Union Of India & Ors. - Respondent
SWP No. 2757/2001
Decided On : 18 February, 2010
Advocate For Appellant: Surinder Kour
Advocate For Respondent: Ajay Sharma
Mandatory compliance with procedural rules, particularly Rule 49 of the Border Security Force Rules, to provide the accused with a reasonable opportunity to make a defense-oriented statement.
Headnote:
Border Security Force Act - Dismissal from Service - Section 16(d) of the Border Security Force Act, 1968 - Chapter VII of the Border Security Force Rules, 1969
Fact of the Case:
The petitioner was dismissed from service for leaving his picket without permission and carrying an unauthorized Motorola set. The petitioner challenged the dismissal, arguing that the provisions of the Act and the Rules were not strictly followed, infringing his rights.
Finding of the Court:
The court found that several procedural rules, including Rule 49 of the Rules, were not complied with, depriving the petitioner of a reasonable opportunity to make a defense-oriented statement. As a result, the Summary Court proceedings and the dismissal were set aside, with the option for the respondents to proceed against the petitioner afresh while strictly following the rules and procedures.
Issues: Non-compliance with procedural rules, infringement of the petitioner's rights, and the legality of the dismissal from service.
Ratio Decidendi: The court held that the mandatory provisions of the Rules, particularly Rule 49, were not followed, depriving the petitioner of a reasonable opportunity to make a defense-oriented statement, rendering the subsequent proceedings as illegal.
Final Decision: The Summary Court proceedings and the dismissal were set aside, with the option for the respondents to proceed against the petitioner afresh while strictly following the rules and procedures.
"To be dismissed from service".
2. In accordance with the sentence passed, petitioner has been struck off from the strength of 28th Bn. BSF C/O 56 APO by the respondent No 5 (Commandant) on the same day i.e. 3rd October, 2001.
3. Quashment of the said order including the charge framed against the petitioner is sought, as a necessary corollary relief for reinstatement has been prayed for.
4. Petitioner enrolled as Constable on 12th of July, 1989 was posted in 28th Bn. of BSF. On 14th of September, 2001 while being posted at Picket at Sauji had left the picket along with Motorola set without permission of his superiors so is alleged to have committed the offence as covered by Section 16(d) of the Border Security Force Act, 1968 (hereinafter for short referred to as "the Act"). The petitioner has been proceeded in accordance with Chapter VII of the Border Security Force Rules, 1969 (hereinafter referred to as "the Rules"). Proceedings were initiated as required in terms of Chapter IX of the Rules before the Summary Security Force Court wherein petitioner pleaded guilty resultantly has been sentenced as aforesaid.
5. Aggrieved thereof instant petition has been filed wherein it is contended that the petitioners dismissal from service is illegal as the provision of the Act and the Rules have not been strictly followed when compliance thereof is mandatory. Non compliance thereof has infringed the valuable right of the petitioner.
6. In opposition it has been contended that the provisions of the Act and the Rules as far as applicable have been strictly followed and complied with.
7. Record of the trial proceedings has been produced for perusal.
8. Considered.
9. From the record what emerges is that the petitioner was enrolled in BSF as Constable, on 14.9.2001 was posted at Picket (FDL Sauji), on the same day Assistant Commandant, Ravish Sharma, (Coy Commander F-Coy) of the Unit at about 0900 hours left to attend the Commandants Conference at Battalion Headquarters, Mandi Mendhar, wherein he was informed that the troops of 11 MLI had seen some militants in the area near FDL, Sauji. Thereafter at about 1400 hours information had been received from FDL Sauji that petitioner has been apprehended by a party of 11 MLI as he was found hiding in a civilian house along with Motorola radio set which was recovered from his possession. The act of the petitioner having left the picket without permission was treated as indiscipline, more particularly in a very high sensitive militancy prone area of Line of Control. It would also emerge from the reply filed by the respondents that prior to this incident earlier during the period from 1991 to 1998, five times the petitioner was punished, twice under Section 19(b), once under Section 19(A), one each under Section 40 and Section, 26 of the BSF Act, so as to show that the petitioner is an indisciplined soldier habitual of overstaying without leave and consuming liquor. The petitioner was charged for leaving his picket without orders from his superior officers and carrying one Motorola set bearing No. 3555 unauthorizedly.
10. In terms of Rule 14(A) of the Rules, the officers and other members of the Force stand classified in accordance with their ranks in the categories, such as: (a) Officer, (b) Subordinate Officer, (c) Under Officer, (d) Enrolled persons other than Under Officers.
11. Petitioner falls within category (d). The procedure for investigation and summary disposal is provided under Chapter (VII) of the Rules. Rule 43 of the Rules provides that where a person, like petitioner, has committed an offence punishable there-under, the allegation shall be reduced to writing in the form set out in Appendix IV.
12. From the perusal of record of trial proceedings, it is quite evident that Ruler 43 has been complied.
13. In terms of Rule 45 of the Rules, the charge is required to be heard by the Comman
