RAMASHRAY PRASAD DWIVEDI Vs. UNION OF INDIA

JUDGEMENT

(1.) CHALLENGING the order dated 5th July, 1999 passed by the Commandant, B.S.F dismissing the petitioner from service on the basis of finding recorded in a Summary Security Force Court held in accordance to the Border Security Force Rules, 1969, this writ petition has been filed.

(2.) PETITIONER joined the force on 1.4.1987 as a Constable. It seems that in July, 1999 while the petitioner was posted as a Constable in E.Coy 195 Battalion B.S.F. under the control of respondent No.3, a charge sheet was issued to him vide Annexure P/1 wherein it was alleged that on 29th June, 1999 at about 19.45 hours when Shri S. K. Ghosh, AC was talking to various persons, the petitioner Constable Ramasray slapped Shri Ghosh AC and Company Commandant on the left side of the face, threatened to shoot him and kill him. On the ground that the aforesaid act was committed without any provocation, allegations were leveled in the charge sheet issued to the petitioner, thereafter a Summary Security Court was convened, the proceedings of the Court were held on 5.7.99 and in the said proceeding the petitioner's guilt having been established, the impugned action is taken.

(3.) I have heard learned counsel for the parties and perused the record. A very important omission on the part of the petitioner which has a lot of bearing in the case is to be taken note of . It is seen that the petition is shown to have been prepared on 24.8.99, it is signed by the petitioner and his counsel on 24.8.99 and challenge is made therein to a order impugned dated 5.7.99. An affidavit to the petition is also sworn at Jabalpur on 24.8.99 and the oath Commissioner has affixed his signature and attestation on 24.8.99. However, the petition is actually presented in the Court on 31.1.2000. Be it as it may be, the petition as was originally filed, did not raise any ground as is now canvassed by Shri Udayan Tiwari at the time of hearing. Even there is no mention with regard to any appeal filed by the petitioner as Annexure P/4 on 20.7.1999. The petition as was originally filed only stipulates that the petitioner has not committed any offence, he has already tendered his apology through his wife, he was mentally disturbed and, therefore, he has sought for reinstatement in service and prayed for natural justice, but nothing has been done and, therefore, he filed the writ petition after a period of one and a half months of the incident. At that point of time, he did not raise any ground as is canvassed at the time of hearing. It is for the first time that is after three years of the filing of the writ petition, that an amendment was made in the writ petition and all the ground with regard to breach of statutory rules pointed out and Annexure P/4 introduced as an appeal. However, Annexure P/4 is only a memorandum submitted by petitioner's wife to the Director General of Border Security Force, New Delhi, wherein she makes certain allegations of harassment of the petitioner, in this also he does not challenge the summary trial or the action initiated in the matter. It is, therefore, a case where the grounds now canvassed has to be viewed in the backdrop of the aforesaid factual aspects, particularly when it is the case of the respondents that the grounds canvassed now is an after-thought, after the petitioner had participated in the trial on 5.7.1999 without any objection.