The Summary Security Force Court lacked jurisdiction to try the civil offence under Section 46 of the BSF Act, 1968, except simple hurt or theft. The appellate authority's rejection of the appeal without assigning any reason was unsustainable in the eye of law.

JUDGMENT

B.R. Sarangi, J. - The petitioner, who was working as constable in the Border Security Force, has filed this writ application seeking following reliefs:-

"The petitioner, therefore, most respectfully prays that your Lordships may be pleased to admit this writ application and issue rule NISI to the Opp.Parties to show cause as to why the order dtd.07.3.2001 in Annexure-4 and order dtd.14.9.2001 in Annexure-7 shall not be quashed;

And further why a direction shall not be issued to the Opp.Parties directing them to reinstate the petitioner with all financial benefits;

And on their failing to show-cause or showing insufficient cause issue a writ in the nature of certiorari quashing the order dtd.07.03.2001 in Annexure-4 and order dtd.14.9.2001 in Annexure7;

And issue a writ in the nature of mandamus or any other appropriate writ directing the Opp.Parties to reinstate the petitioner along with all financial benefits, which he is entitled to."

2. Factual matrix of the case, in hand, is that the petitioner, by following due procedure of selection, was appointed and joined as constable in Border Security Force (BSF) on 02.04.1987 bearing no. 87655462 in 142 BN and posted to 'C' Coy. He was discharging his duty assigned to him and as such there was no adverse remark against him at any point of time. On 27.02.2001, while he was deputed for RP duty at BSF Gate No.2 of 142 BN HQ, Khemkaran, Punjab, he was charged for committing a civil offence under Section 46 of Border Security Force Act, 1968 (in short "BSF Act, 1968"), punishable under Section 354 IPC. On the same day, he was arrested and was under the charge of Guard Commander of Quarters Guards' vide order of Deputy Commandant. Charge sheet was filed against him on 01.03.2001 under Section 46 of BSF Act, 1968 in committing a civil offence alleging outraging the modesty of a woman.

Thereafter, a decision was taken by the competent authority for having a trial by Summery Security Force Court and he was intimated, vide letter dated 05.03.2001, to take assistance of any Officer/SO/Legal Practitioner during the trial proceeding. While he was under the charge of Guard Commander he was not able to take assistance of any Officer/SO/Legal Practitioner. During trial on 07.03.2001, the petitioner was given the assistance of one Asst. Commandant. As many as ten witnesses, including the petitioner, were examined during the trial and on the same day he was dismissed from service with immediate effect without financial/pensionary benefit.

2.1 Though the petitioner denied all the allegations, but due to animosity and previous grudge he was falsely implicated. Needless to say, while the petitioner was posted at Gate No.2 on 27.02.2001, he was helping the School children in crossing the road. Seeing the victim girl crossing the road hurriedly, the petitioner took hold of the victim girl, scolded her and helped her in crossing the road. But on the allegation of the minor girl, her father lodged an FIR, on basis of which the petitioner proceeded under Section 46 of the BSF Act, 1968. The victim girl was also examined by the Chief Medical Officer (C.M.O.), 142 BN, B.S.F.. The medical report does not reveal any injury or any type of sexual abuse by the petitioner, but with an oblique motive, by adopting a trial of summary security force, major penalty of dismissal from service with immediate effect was inflicted on 07.03.2001. The petitioner, after receiving the order of major penalty, preferred statutory appeal on 21.03.2001 before the Director General, Border Security Force-opposite party no.2 with a prayer to set aside the order of punishment of dismissal from service and sought for reinstatement in service with all benefits. The appellate authority, without considering the grievance of the petitioner, rejected the appeal in a cryptic manner vide order dated 14.09.2001 in Annexre-7, hence this writ application.

3. Mr. Jayant Das, learned Senior Counsel appearing along with Mr. N. Sarkar, learne