AJAY KUMAR SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) The present appeal is directed against the order of the learned Single Judge dated 6/11/2000' dismissing the writ petition on the ground that the evidence led before the Summary Security Force Court could not be reappreciated in the writ petition. Briefly stated the facts are that the appellant was deputed as a guard with vehicle at BOP, Nandanpur. The appellant claimed to have taken Rs.535 along with him to make some purchases for himself. The appellant further pleaded that he had asked the Guard Commander to allow him to do shopping enroute to the Customs Office, Chhapra. On 18/05/1999 a large quantity of onions was seized from Debnathpur area. It is on record that about 8400 Kgs. of loose onions were seized. In the night they were kept at Shakur BOP. Next day onions were brought to Chhapra Customs Office. Since the onions were loose arrangements were made to fill them in gunny bags and get them weighed. The Assistant Commissioner came to the Office at about 9 'O Clock in the evening and asked the appellant how many onions he had sold. The appellant denied having sold any onions. The appellant was asked as to how much money he had. The appellant took out Rs.515. The Assistant Commissioner returned Rs.15 and kept the balance Rs.500. The appellant asked the Commissioner to return his money as he had brought the same for some shopping. The money was not returned to him. It is in these circumstances that a charge sheet alleging that the appellant had sold five bags of onions was issued on 3/08/1999. It was stated that the appellant had sold these bags to a civilian for Rs.790. Another charge sheet was issued on the 25/09/1999 wherein it was stated that the appellant had sold five bags of onions to an unknown civilian for Rs.500. The Summary Security Force Court conducted trial in the presence of the appellant. The evidence was recorded and the witnesses were examined and cross-examined. On completion of the trial the Commandant dismissed the appellant from service vide order dated 27/11/1999. The appellant filed an appeal before the Director General which was dismissed on 19th October, 2000. It was in these circumstances that the appellant approached the learned Single Judge by way of the writ petition which was also dismissed vide the impugned order dated 6th November, 200. Hence this appeal.

(2.) . The appellant assails the order inter alia on the ground that he could not have been dismissed as findings of the Summary Security Force Court are without evidence and are not based on materials and also the Director General gave no reasons while dismissing the appeal of the appellant confirming the order of dismissal. Counsel for the appellant contended that the penalty is not commensurate with the gravity of the alleged misconduct. He has further contended that a charge sheet was framed and issued on 3/08/1999 and thereafter another charge sheet was framed 53 days later without mentioning therein about the earlier charge sheet. It was further contended that PW-1 Shri Anirudha Sen was not present at the spot but gave evidence on the strength of what was narrated to him by a civilian. There is no evidence on record to support the allegation of sale of onions. The civilian who was examined has turned hostile and denied the fact that any onion was sold or any money was paid. The civilian was also not identified by Mr. Anirudha Sen and he also did not know the name of the boy who gave the information. In short the appellant contended that there was no evidence to warrant a finding of guilt and dismissal from service and in any case the penalty was not commensurate with the gravity of the alleged offence.

(3.) . The appeal was opposed by the respondents. We have heard counsel for the parties and perused the record. The appellant was charged under Section 30 (b) of the BSF Act for dishonestly appropriating property belonging to the Government.