NARESH KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner, Naresh Kumar was holding the post of a Constable in the Border Security Force when on 8.10.2007 at the Border outpost Asmeralga he allegedly picked up an unnecessary quarrel with HC Onkar Chand and assaulted him.

(2.) THE Commandant Vineet Kumar of the Unit, to which the petitioner was attached directed a Record of Evidence to be prepared by the 2nd-In-Command, Bhagwan Singh 2-IC, who after putting the petitioner to notice of the two charges i.e. of assaulting HC Onkar Chand (first charge) and using threatening language against his superiors (second charge) completed the proceedings pertaining to Record of Evidence and during said period recorded the statements of various witnesses which, learned counsel for the petitioner concedes establishes that as per the charge on 8.10.2007 at around 5:00 PM the petitioner sought permission from HC Onkar Chand to leave the Unit lines and fetch milk from outside to which HC Onkar Chand told him to go after some time since a roll call had to be recorded. Petitioner insisted and HC Onkar Chand relented. Petitioner left and returned with milk and after the roll call was taken he questioned HC Onkar Chand as to why he initially did not allow petitioner to leave the Unit line to which HC Onkar Chand responded by saying that whatever be the reason, it hardly mattered since petitioner was permitted to leave to fetch milk, which he did and returned by the time the roll call was taken and at that point of time petitioner directed a blow towards the face of HC Onkar Chand and since HC Onkar Chand took defencive and protective action to receive the blow on his arm the petitioner used threatening language against his superior i.e. HC Onkar Chand saying that what he did was nothing and he would finish him off with a single blow.

(3.) AT the forefront of the submission urged by learned counsel for the petitioner is that only the Commandant could have acted as the Court and since the Summary Security Force Court proceedings were conducted by the Officiating Commandant, the same are void.