In this petition preferred under Article 226 of the Constitution of India read with Section 103 of the Constitution of the State of Jammu and Kashmir, petitioner inter alia seeks quashment of order dated 09.02.2004 passed by General Security Force Court by which the petitioner was sentenced to severe punishment, namely, reduction of seniority of the petitioner in the rank of Sub Inspector, forfeiture of three years past service for the purpose of pension and severe reprimand. The petitioner also seeks quashment of order dated 08.05.2004 which was confirmed by Inspector General, Border Security Force, Tripura confirming the sentence. The petitioner also seeks a writ of mandamus directing the respondents to restore the petitioner to its original position with all consequential benefits.

2. Facts giving rise to the filing of this writ petition briefly stated are that the petitioner was appointed as Sub Inspector in Border Security Force vide order dated 02.11.1998 and at the time of filing writ petition, the petitioner was posted in Jammu as Inspector. The petitioner after completion of his training was posted on the post of Sub Inspector, BSF with 64 Bn of BSF which was stationed at Lamzang Churachand pur District Manipur. The petitioner on 15.02.2000 was deployed as part of patrol party in counter-insurgency operation. On 15.02.2000, two rounds of bullets accidentally went out from the 9 MM Carbine sub-automatic weapon carried by the petitioner. One of the stray bullets hit on the ground whereas other bullet hit Constable Girish Chand on his right hip, as a result of which he sustained injuries. Accordingly, the Police Station Manipur received the FIR on 15.02.2000, however the same was not registered.

3. Court of Enquiry was held during the month of Feb., 2000 against the petitioner which was presided over by Deputy Commandant of the Border Security Force. In the Court of Enquiry during investigation, the statements of as many as seven witnesses were recorded. The Court of Inquiry vide order dated 22.02.2000 after examining entire evidence and the material on record came to the finding that the firing of gun shots from the weapon carried by the petitioner was not intentional but the same was fired inadvertently from his carbine machine.

4. After lapse of more than three years, charge-sheet dated 23.12.2003 was submitted against the petitioner in which inter alia it was alleged that while on duty on 15.02.2000, the petitioner voluntarily caused grievous hurt to Constable Girish Chand by firing two shots from his gun carbine machine. For the alleged offence, the petitioner is to be tried by General Security Force Court. The petitioner was served charge-sheet dated 23.12.2003. The General Security Force Court was held in which Constable Girish Chand retracted from his earlier statement which was made before the Court of Enquiry and stated that he had strained relations with the petitioner and petitioner with a view to take revenge fired on him. The General Security Force Court by order dated 09.02.2004 held that charges against the petitioner are duly established and sentenced the petitioner. The aforesaid order was affirmed in appeal before the Inspector General of Border Security Force vide order dated 09.02.2004. Thereafter the petitioner submitted a representation on 10.05.2004 before the Grievance Redressal Cell of the Border Security Force, however, the representation was returned to the petitioner vide communication dated 23.06.2004. Thereafter the petitioner submitted representation to the Director General of Border Security Force on 28.07.2004. The petitioner vide communication dated 16.12.2004 was informed that the representation submitted by the petitioner has been rejected on 16.12.2004. The petitioner thereafter filed an appeal before the Director General, Border Security Force on 10.02.2005 as well as mercy petition dated 17.07.2008 for review of GSFC sentence which is addressed to Director General, Border Security For

Click Here to Read the rest of this document