UNION OF INDIA Vs. T.MANI

JUDGEMENT

(1.) This intra court appeal is filed by the Union of India and the Border Security Force, who were the respondents in W.P. No.35854 of 2004, so as to challenge the order dated 15.04.2019 in the said writ petition. By the said order, the writ petition was allowed and the impugned order dated 21.04.2004 and the consequential communication dated 09.09.2004 of the fourth Respondent, whereby the Respondent's services were terminated, were set aside. Consequently, the learned single Judge modified the Petitioner's punishment into 'compulsory retirement' instead of 'termination'. The Respondent/Petitioner was held to be entitled to monetary and pension benefits as a result of such modification.

(2.) The facts and circumstances leading to the present appeal are as follows: the Respondent/Petitioner was employed as a Commandant of the 11th Battalion of the Border Security Force (hereinafter referred to as the BSF). On the basis of the charge that the Respondent/Petitioner had agreed to give safe passage to smugglers in the area of responsibility of the 11th Battalion, in terms of Rule 173 of the Border Security Force Rules, 1962 (the BSF Rules), a one man Staff Court of Inquiry (SCOI) was constituted by the BSF on 10.01.2002. The SCOI conducted proceedings from 24.01.2002 onwards. An additional SCOI was convened under the same officer on 23.04.2002 to rectify shortcomings/discrepancies in the original SCOI as stated in the convening order. As no new facts were unearthed, an additional opinion was not prepared and the proceedings of the SCOI were forwarded to the Frontier Headquarters of the BSF on 29.04.2002. On that basis, the Inspector General recommended that trial by a Security Force Court is inexpedient and impracticable because the availability and presence of smugglers, as witnesses, is questionable. Instead, it was recommended that the services of the Respondent be terminated as per Rule 20 of the BSF Rules. Therefore, a show cause notice dated 21.08.2002 was issued to the Respondent. He replied thereto on 24.09.2002. In the said reply, he denied the charges and contended that the SCOI is not a court and that the charges against him were not proved. Meanwhile, the Respondent approached the High Court of Calcutta by filing W.P. No.3362(W) of 2003. By order dated 29.08.2003, the said writ petition was disposed of by directing the Director General to discharge obligations as per Rule 20(3) and (4) of the BSF Rules within a reasonable time.

(3.) In these facts and circumstances, an order of termination was issued on 21.04.2004. The said order of termination was followed by a communication dated 09.09.2004, whereby the memorandum of the Respondent requesting that the termination be revoked was rejected. In these facts and circumstances, the Respondent/Petitioner filed the writ petition which resulted in the impugned order of the learned single Judge dated 15.04.2019, which is impugned herein.