SUVASIS DEY Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution of India seeking direction upon the respondents to reinstate the petitioner in his service after setting aside the order of appellate authority vide no. 06/137/2007/SP/BSF/CLO (D&L)/9229-33 dtd. 31/12/2007 confirming the order of the Commanding 46 Bn. BSF vide no. Estt/SSFC/46 Bn./2007/129991-96 dtd. 24/9/2007 with all admissible benefits including arrear salary.

(2.) The petitioner joined the service of the Border Security Force as a Constable in February, 2003. He was posted at 46 Battalion, BSF at the relevant date. On 10/6/2007 the Commandant 46 Bn., BSF Roopnagar, Coochbehar issued a letter suspending the petitioner from his service. A disciplinary proceeding was contemplated against the petitioner for committing an offence under Sec. 40 of the BSF Act. An order was passed on 24/9/2007 by the Summary Security Force Court dismissing the petitioner from service. On 8/10/2007 the petitioner filed a statutory appeal before the Director General of Border Security Force. On 31/12/2007 the appeal was dismissed.

(3.) Mr. Swarnendu Ghosh, learned counsel appearing on behalf of the petitioner submitted as follows. The petitioner was in the service of the Border Security Force since February, 2003. He had an unblemished service record of 4 years in which he had received one cash reward. The day of the incident i.e., 10/6/2007 was the petitioner's first day of posting at Gate no. 3 along with another personnel namely, Ashok Som (the petitioner in WPA 2076 of 2008). The petitioner and the other were in the post for less than 2 hours on the relevant date. The gate closed at 8.30 hours and reopened only at 8.40 hours. It was the time when one Khitish Barman wanted to cross the gate and was prevented by the petitioner. All the villagers with valid documents were allowed to cross the gate for cultivation. The said Khitish Barman was prevented as he did not have the requisite documents. In order to wreck vengeance, the said Khitish Barman, the sole eye-witness of this case, tried to foist up a case against the petitioner and the other. The evidence of Khitish Barman itself was based on probability. He talked about 90 cattle at 8.30 hours, by which time the gate was closed. Once he said that he was there for labour work. But, in the cross-examination he admitted that he did not get any work and was standing and watching the incidents. There were innumerable discrepancies in the evidence given by the prosecution witnesses. The evidence of the defence witnesses was quite contrary to this. There were locals who made a mass representation. Soon after the gate reopened at 8.40 hours, at about 9.00 hours the writ petitioner and the other were removed from the spot and were taken into custody. The petitioner was released only on 21/9/2007. A charge-sheet was issued on 22/9/2007. The writ petitioner was dismissed by a non- speaking order dtd. 24/9/2007 by the same person who issued the charge-sheet. On this reliance was placed on the decision of the Hon'ble Apex Court reported at (2016) 1 SCC 724. The other issue was the purported recovery of a bag containing money from near the place of occurrence. The prosecution witnesses gave evidence that a polybag containing money was lying on the ground near the fence about 50 to 60 yards from Gate no. 3. No one had found any money on the writ petitioner. Nor had anyone seen the writ petitioner receiving money from anyone. Mere recovery of money from somewhere by itself could not prove the charge of the prosecution against the accused in respect of payment of bribe. On this reliance was placed on a decision reported at (2011) 6 SCC 450. In the instant case, the petitioner's livelihood was at stake. Reliance was placed on the unreported decision in Balwinder Singh Versus Union of India and Ors. W.P. (C) No. 7875/2007. The appellate authority could not rectify the defect in the order of the disciplinary authority by trying to furnish reasons. On this reliance was placed on Balwinder Singh (supra). Besides, the Commandant issuing charge-sheet to the petitioner could not have presided over the Court. There is no proof that the rule regarding presence of two officers during the proceeding was followed. Therefore, it was evident that the termination of service of the petitioner was without any cogent evidence and was illegal.