UNION OF INDIA Vs. JOGESHWAR SWAIN

JUDGEMENT

(1.) These appeals are directed against the judgment and order of the High Court of Delhi at New Delhi (in short, "the High Court"), dtd. 21/2/2013, by which W.P. (C) No. 17430 of 2006 filed by the respondent (the original petitioner) was allowed, the punishment of dismissal imposed upon the original petitioner was set aside and a direction was issued that the original petitioner would be entitled to full consequential benefits except salary to the extent of 50%. The appellants have also challenged the order of the High Court dtd. 22/11/2013, by which the review petition of the appellants seeking a review of the order dtd. 21/2/2013 was dismissed, though certain observations made in the earlier order were recalled.

(2.) The original petitioner/accused (the respondent herein) was a Constable (General Duty) in the Border Security Force (in short "BSF"). The case against him was that while he was posted as a security aide to a lady doctor, on 17/6/2005, at about 7.45 pm, he clicked pictures of that lady doctor while she was taking her bath. The allegations against him were that,- on the fateful day, the lady doctor requested him to leave her quarter as she were to take a bath; while she was bathing, she noticed through the window of her bathroom two camera flashes; suspecting foul play, she raised an alarm; on her alarm, her mother went out but could find none; later, the matter was reported to the Chief Medical Officer; the BSF authorities investigated the matter and put the original petitioner under open arrest. During investigation a camera was recovered from the residential quarter of another person, who was a neighbour of that lady doctor. Thereafter, under orders of the Battalion Commandant, proceedings were initiated against the original petitioner in respect of commission of an offence under Sec. 40 of the Border Security Force Act, 1968 (in short, "BSF Act, 1968"), that is for committing an act prejudicial to the good order and discipline of the Force (BSF), and record of evidence was prepared. On completion of the record of evidence, the Commandant remanded the original petitioner for trial by a Summary Security Force Court (in short, "SSFC"). The SSFC held its proceedings on 23/7/2005 wherein the original petitioner is stated to have pleaded guilty. Based on that, the SSFC dismissed the original petitioner from service.

(3.) Aggrieved by his dismissal from service, the original petitioner filed an appeal under Sec. 117 of the BSF Act, 1968 before the Appellate Authority. In the appeal, the original petitioner refuted the allegations of clicking pictures of the lady doctor while she was taking her bath and claimed that,- while recording the evidence, the prosecution witnesses were not offered for cross-examination; there was no evidence forthcoming against the original petitioner in the testimony of prosecution witnesses; the reel of the camera allegedly used in commission of the offence was not developed; the statement of PW-9 with regard to concealment of the camera in her house by the original petitioner was contradictory to her previous statement where no such allegation was levelled by her; nothing incriminating was recovered from the possession of the original petitioner; the statement of prosecution witnesses indicated that the original petitioner had denied the allegations levelled against him, therefore, there was no reason for making a confessional statement, hence, the same cannot be the sole basis for the punishment. In the alternative, the original petitioner pleaded that he was a young man, aged 31 years, who had diligently discharged his duties for over 11 years without a complaint, therefore, even if the original petitioner is found guilty, a lenient view be taken by taking into account that he has old parents and a family dependent on him.