IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side Present :

The Hon’ble Justice Shampa Dutt (Paul)

WPA 10556 of 2008 Sankha Dutta Vs.

The Union of India & Ors.

For the Petitioner : Mr. Dilip Kumar Samanta, Mr. Biswapriya Samanta, Mr. Suhotro Palit.

For the Respondent No.3 : Mr. Debapriya Gupta.

Hearing concluded on : 12.02.2025 Judgment on : 28.02.2025 Shampa Dutt (Paul) , J.

1. The present writ application has been preferred against charge sheets dated 5^th January, 2007 as well as 7^th July, 2007 and proceeding of the Summary Security Force Court dated 08.12.2007 to 14.12.2007 as well as verdict and sentence dated 14.12.2007 passed by the Summary Security Force Court and order dated 10^th April, 2008 passed by the Director General, Border Security Force.

2. The petitioner’s case in short is that he joined to the post of Constable in Border Security Force (BSF) in the year 1985 and was promoted as Lance Naik. The petitioner applied for earned leave for a period of 30 days on the ground of his mother’s illness which was granted to the petitioner for the period from

20.04.2006 to 19.05.2006.

3. An application dated 08.06.2006 was made by the petitioner for extension of his earned leave for a further period of sixty days. Another application was made on 26.01.2006 for further extension of two months of leave on medical grounds.

4. It is stated that medical documents issued by the Chandannagar Sub-Divisional Hospital regarding his treatment was annexed.

5. It is submitted that he could not join his duty due to his mother’s and his illness but the respondent authority without considering the petitioner’s application issued letter on 20.08.2006 to the Superintendent of Police to produce the petitioner and accordingly, he was apprehended by the BSF Escort party and handed over to the unit on 18.01.2006.

6. The Commandant, 106 Battalion, N.D.R.F., Border Security Force, initiated a proceeding under Rule 45 of the BSF Rule against the petitioner for committing an offence under Section 19(b) of the BSF Act, 1968. The charge leveled against the petitioner on 06.02.2007 by the Commandant runs as follows:-

“The accused No.861619 L/NK Sankha Dutta of 73 Bn, BSF attached with 106 Bn NDRF is charged with :-

BSF Act, 1968 Sec.- 19(b) WITHOUT SUFFICIENT CAUSE OVER STAYING LEAVE GRANTED TO HIM In that he, Having been granted leave of absence from

20/04/2006 to 19/05/2006(30 days E/L) failed to rejoin duty without sufficient cause and later on apprehended by BSF escort party handed over to unit on 18.10.2006 (Total period of absence 152 days.)

7. The second charge sheet is dated 7.7.07 and is as follows:-

“FIRST CHARGE BSF ACT SEC-46 COMMITTING A CIVIL OFFENCE, THAT IS TO SAY BEING A PUBLIC SERVANT ACCEPTING GRATIFICATION OTHER THAN LEGAL REMUNERATION FOR BEARING TO DO THE ACT PUNISHABLE UNDER SECTION-7 OF PREVENTION OF CORRUPTION ACT 1988.

In that he, while posted at Ftr HQ BSF SB, (Now posted 73 Bn BSF & further attached with 106 Bn BSF) accepted gratification amounting to Rs, 25,000/- from a civilian namely Kuldeep Chakraborty during the year 2002 other than legal remuneration as a motive or reward in the exercise of his official function for showing favour and consent to an illegal act thereby committed an offence U/S-7 of prevention of corruption Act 1988.

SECOND CHARGE BSF ACT SEC-40 AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE.

In that he, while serving at FTR HQ BSF SB during Feb 2006 improperly and without authority suppressed the fact from the superior that two civilians named Mr T.K. Mondal and Kuldeep Chakraborty who acted as BSF Account officials FTR HQ BSF SB to the officials of Canara Bank and facilitated them to have access in campus of FTR HQ BSF SB for an illegal Act.

THIRD CHARGE BSF ACT SEC-40 AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE In that he, while posted at FTR HQ BSF S.B. (Now posted 73 BN BSF further attached with 106 BN BSF) got loan sanctioned amounting to Rs. 1,00,000/- from O