DHARAMBIR SINGH (EX. CONST.) Vs. UOI & ORS

JUDGEMENT

(1.) THE petitioner has in the present writ proceeding challenged an order dated 14.12.1998, dismissing him from the services consequent upon the findings of "guilt", recorded in the Summary Security Force Court (SSFC). The findings and punishment were approved by the Competent Authority of the Border Security Force (BSF) on 05.03.1999; the petitioner's appeal was rejected on 22.11.1999. Briefly, the facts are that the petitioner - who joined the BSF on 30.09.1989 - was charged with culpability in respect of an incident which occurred on 31.08.1998. Two charges levelled against him were of, unauthorisedly removing and taking -away a jeep and secondly, the more serious allegation, of his having misbehaved and slapped a superior officer, namely Subedar A. Ghosh. The charge sheet initially issued against the petitioner were as follows:

(2.) THE petitioner's Commandant conducted a preliminary enquiry under Rule 45 of the BSF Rules, 1969 (hereafter referred to as "the Rules"). After hearing the nature of the incident from four witnesses, who were present at the time of the incident; the Commandant noted that the, "findings stand proved" and further directed that the petitioner be tried by the SSFC. On 02.09.1998, the Commandant directed the Recording of Evidence under the Rules. This was presided over by an Assistant Commandant, who conducted the proceedings in that regard - between 02.09.1998 and 11.09.1998. There is no dispute about the fact that during the course of these proceedings, the petitioner was provided the opportunity of cross -examining the witnesses who deposed against him. There is some controversy about the fact that the Commandant, who initiated the proceedings with a preliminary enquiry under Rule 45 of the BSF Rules, 1969, did not afford him similar opportunity to cross -examine the witnesses. Ultimately, upon being arraigned and charged for the incident, the petitioner pleaded "not guilty" in respect of the second and more serious charge. The BSF, on the basis of the preliminary enquiry proceedings formed the opinion that since the petitioner's plea of guilt had been entered in respect of the first charge, there is no need to adduce evidence on that score. Therefore, in the SSFC proceedings, the evidence was led by the BSF authorities solely on the question of petitioner's involvement in regard to the second charge, i.e. primarily of assaulting/slapping Subedar A. Ghosh. One of the witnesses, PW -5, in fact did depose about the other charge, i.e. the petitioner's alleged unauthorised removal of the official jeep.

(3.) AS far as the second charge is concerned, learned counsel urged that the overall reading of testimonies of 4 witnesses who deposed about the incident would reveal that there was no unanimity about the nature of the incident and the exact altercation which took place. Learned counsel for the petitioner relied upon the testimony of PW -1 and stated that this witness did not support the prosecution in the sense that he deposed about not having seen clearly who slapped whom. It was also submitted that the deposition of another witness, i.e. PW -3, who saw PW -1 intervening and trying to contain or control the situation which was contradictory to PW -1's statement, never mentioned about the slapping incident. On an overall reading and appreciation of the testimonies, it is apparent that only one witness who clearly mentioned about the slapping incident, i.e. PW -3 whereas the others did not mention it. Having regard to the quality of this evidence, the finding of guilt arrived at by the SSFC was untenable. Consequently, the dismissal order was illegal and the petitioner was entitled to be reinstated.