The court upheld the dismissal of the petitioner based on the past conduct and found no procedural irregularities in the dismissal process.

JUDGMENT :

1. The petitioner was enlisted in Border Security Force [“BSF”] as Constable on 28-06-1980 and after undergoing necessary basic training was posted in 84 Bn of the BSF. The petitioner states that he was then transferred to 77 Bn and thereafter to 93 Bn of the BSF. While the petitioner was posted in 93 Bn, he was charged for the offence under Section 19(a) of the BSF Act on the allegation that at 1600 hrs on 18-10-1998 the petitioner had absented himself without leave from TP/OP NO.01 of BOP Somrar ("D" Coy, 93 BN) till 2330 hrs ( total period of absence 7 ½ hrs). Another offence alleged against the petitioner, under Section 26 of the Act, was that, at 2330 hrs on 19-10-1998 the petitioner was found in a state of intoxication while performing the duty at Tent post/OP NO.01 of BOP Somrar and after holding enquiry, he was placed under arrest. The Summary Security Force Court was held thereafter and the petitioner was dismissed from service.

2. The case of the petitioner is that a false and frivolous charge under Section 19(a) of the Border Security Force Act, 1968 [ “the Act of 1968 hereafter”] has been levelled against the petitioner on the false allegation that, on 18-10-1998 at 1600 hrs, the petitioner absented without leave from TP/OP NO.1 of BOP Somrar till 2330 hrs for a total period of 7½ hrs. It is submitted that the allegation of absence is false as on 18-10-1998, it was Diwali festival and the petitioner went to get the meals for the personnel posted in the TP/OP No.1 on foot, as he did not know how to ride an elephant. He was thus late by half an hour, however, the respondents wrongly mentioned absence for 7½ hours. The petitioner claims that he has not committed any such offence. He also denied that second charge framed against him under Section 26 of the Act of 1968 on the allegation that the petitioner, on 19-10-1998, at 2330 hours, was found in a state of intoxication while performing his duty at Tent post OP No.1 of the BOP Somrar.

3. The petitioner has assailed the order of his dismissal and the proceedings of the Summary Security Force Court on numerous grounds. The grounds which were pressed into service by the learned senior counsel, while arguing the matter on behalf of the petitioner, may be summarized thus:-

(i) That the order of dismissal has been passed against the petitioner in violation of the relevant provisions of the Act of 1968 and the Rules framed there under.

(ii) That the order of dismissal has been passed without holding/conducting any enquiry, in that, the respondents were obliged to prepare an offence report in terms of Rule 43 of the Rules of 1969 and after reducing it in writing, the Commandant was required to hear the charge and award the punishment or dismiss the charge, but in the present case the respondents have not followed the relevant provisions of law.

(iii) That the petitioner was required to be heard before imposing major punishment upon him but the petitioner was not afforded any opportunity to prove his innocence. Additionally, under Rule 48 of the Rules of 1969, the respondents were required to record the evidence in presence of the petitioner and give opportunity to the petitioner to cross examine the witnesses and it was only then the charge sheet could have been framed in terms of Rule 53 for conducting the Summary Security Force Court. But in the case of the petitioner, neither the respondents have recorded the evidence under Rule 48 and 49 of the Rules of 1969 nor have provided the copies of the same to the petitioner.

(iv) That the respondents have not conducted any enquiry under Rules 170 to 176 of the Rules of 1969. Further, the petitioner was ill and was undergoing treatment from the medical officers of the respondents and, as per Rule 113 of the Rules, in case the accused is ill, the trial should not be continued and is required to be adjourned. Even under Section 71 of the Act, in case the accused is ill, the Summary Security Force Court is required to be dissolv