JITENDER SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, a dismissed Constable of Border Security Force (BSF) assailed the order dated 18.5.2011 (Annexure P/1), whereby the disciplinary authority has dismissed him from service and directed him to undergo one year RI in civil jail. The petitioner has also assailed the appellate order dated 27.09.2011 (Annexure P/10), whereby the punishment order is affirmed by the appellate authority.

(2.) Shri Akshay Verma, learned counsel for the petitioner, submits that the petitioner was served with a charge sheet dated 29.3.2011. The same was followed by an enquiry. The charges against the petitioner were found proved and, therefore, the impugned punishment order was inflicted on him. Learned counsel for the petitioner assailed the disciplinary proceedings, impugned punishment and appellate orders on following counts:-

(3.) To elaborate, Shri Verma, learned counsel for the petitioner, submits that the charge of sodomy may be an offence under IPC but it does not form part of any misconduct for which the petitioner can be tried under the Act. It is contended that at the time of incident the petitioner was in the strength of 35th Battalion, BSF, situated at Meghalaya. Thus, the Commandant, STC, BSF Tekanpur was not competent authority to remand the petitioner for trial by Summary Security Force Court (SSFC). It is contended that the charge sheet could have been sent to petitioner at his parent unit of 35th Battalion, BSF and the Commandant of 35th Battalion, BSF was competent to take disciplinary action against the petitioner. Thus, it is contended that the DIG, STC, BSF was disqualified to conduct the trial of the petitioner. Specialized Training Centre (STC), Shri Verma contends, is a part of BSF Academy, Tekanpur, whose Commandant for all purposes was Shri V.N.Rai, ADG/Director. STC being component of BSF, Shri V.N.Rai alone was competent to conduct the present SSFC trial. Reliance is placed on para 12 of the Apex Court judgment, reported in (Union of India and others vs. B.N.Jha, 2003 AIR(SC) 1416).