ASHOK KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, Ashok Kumar, an Ex.Constable, Border Security Force, by thispetition under Article 226 of the Constitution of India, seeks to challenge the findingsand sentence awarded by the General Security Force Court vide order dated 1 8/04/1994, which were confirmed by the statutory authority as also the CentralGovernment rejected the statutory petition of the petitioner against the findings andsentence of the said General Security Force Court vide order dated 29/07/1995.

(2.) It is the case of the petitioner that he was enrolled in the Border Security Forceas a Constable on 12/04/1989 and after completion of training was posted in142 Battalion BSF. During June, 1992 the petitioner was posted in F-Company,Headquarter, located a Border Out Post, Nayatal, Barmer Sector, Rajasthan, withinthe jurisdiction of Commandant 412 Battalion, BSF. That on 6/06/1992 thepetitioner was nominated by Head Constable Santokh Singh to work as PersonalOrderly to Subedar Nathu Ram, Officiating Company Commander of the said 'F'Company at the said Border Out Post. Nayatal which job, according to the petitioner,was of a menial nature, such as polishing shoes, bringing food from cook house,washing utensils etc. and, therefore, the petitioner declined to perform the said duties as it was a job beyond the call of duty. This, it is stated, was a cause of annoyancewhich brought about his being victimised. On 13/06/1992 the petitioner wasdirected to do pack drill for allegedly not being attentive while on duty at observationpost, Naka, where a water tanker approached the said Border Out Post, Nayatal,and went undetected. The said punishment was supervised by Naik Mukhtiyar Singh.It is the case of the petitioner in the writ petition that while doing pack drill, thepetitioner saw Head Constable Santokh Singh carrying one rifle and one bandoliarand going towards the office-cum-residence of the said Company Commander,Nathu Ram. After the pack drill, the petitioner found his rifle and ammunition missing.

(3.) In order to retrieve his rifle and ammunition, the petitioner went to the office-cum-residence of the Company Commander and made missing report of his rifle andammunition from the barrack. The Company Commander, Nathu Ram, pointed towards a rifle which was kept near the window which, the petitioner confirms, wasthe one issued to him and the petitioner in the attempt to take back his rifle grappledwith the Company Commander who was holding the rifle from its butt while the muzzlewas pointing towards the petitioner. During the struggle one round got fired which hitthe petitioner in his stomach and he fell down on the ground and remained in senses.The Company Commander, according to the petitioner, sensing the gravity of thesituation committed suicide by firing a shot from the same rifle at his forehead. Thepetitioner was evaluated to Civil Hospital, Barmer at about 1945 hours on the sameday i.e. 13/06/1992 and the next day was moved to M.G. Hospital, Jodhpur. Hewas tried in April, 1994 by a General Security Force Court on allegedly false andfabricated charges, convicted and sentences to suffer imprisonment for life anddismissed from service vide order dated 18/04/1994. He assails the proceedingson various counts, primarily, on the ground of appreciation of evidence and non-compliance of Rule 45 of the Border Security Force Rules (for short 'the Rules').