M. S. DARWIN Vs. SATBIR SINGH

JUDGEMENT

(1.) The Writ Petition was preferred seeking a writ of certiorari to quash Ext. P4 order dated 28th September, 2001 issued by the 6th respondent and also Ext. P1 SSFC judgment dated 18/11/1999 and for a direction to the 8th respondent not to arrest the petitioner pending the final disposal of the OP and for a declaration that the entire proceedings initiated against the petitioner leading to Ext. P1 judgment of the SSFC and the subsequent solitary confinement of the petitioner as illegal and violative of Art.14, Art.16 and Art.21 of the Constitution of India. Petitioner has also sought for a direction to pay the salary and allowances and other service benefits applicable to the petitioner with interest from 16/11/1999 onwards and also for consequential reliefs.

(2.) Ext. P1 is the judgment dated 18/11/1999 by the Summary Security Force Court imposed the punishment of rigorous imprisonment for 6 months and also ordered dismissal from service. Later the said order was modified by the Reviewing Officer under S.115 of the BSF Act commuting the sentence imposed on the petitioner to suffer 3 months rigorous imprisonment in force custody. Pre trial detention period was also directed to be taken into consideration while commuting the sentence. Petitioner had undergone the punishment and was later released from the unit of Quarter Guard on 15/02/2000 with a direction to rejoin duty after obtaining his uniform and identity card from the concerned company. Ext. R1(a) is the letter by which he was called upon to join duty. Petitioner did not join duty and hence a Court of inquiry was convened as per the provision of S.62 of BSF Act and on completion of inquiry, issued an apprehension roll to arrest the petitioner. Petitioner then approached this Court and filed OP 11704/2000 challenging the punishment imposed. OP was later dismissed holding that this Court has no jurisdiction to try the issues. Petitioner later approached the Rajasthan High Court. Rajasthan High Court noticed that the Petitioner had not availed of the statutory remedy of appeal under S.117(2) of the Border Security Force Act, 1968. Consequently petitioner filed a statutory appeal which was rejected by the appellate authority vide Ext. P4 order dated 28th September, 2001 stating as follows:

(3.) Counsel for the petitioner submitted that the appellate authority has not considered any of the grievances raised by the petitioner nor was he given any opportunity of being heard, hence there was clear violation of the principles of natural justice. Learned counsel also submitted that since the petitioner did not join duty at the same unit, he would be harassed. The counsel also submitted that the appellant may be permitted to join duty in some other unit under a different commandant.