MD. ELYASH Vs. UNION OF INDIA

JUDGEMENT

(1.) This writ application had been preferred challenging the charge sheet dated 31st October, 2006 issued by the respondent no.3, the order dated 9th November, 2006 passed by the Summary Security Force Court (hereinafter referred to as the SSFC)and the order dated 22nd May, 2007 passed by the respondent no.2.

(2.) The facts, in a nutshell, are that the petitioner was appointed to the post of Constable in the Border Security Force on 15th June, 1988 and he was posted under the respondent no.3 on 14th June, 1990. Surprisingly thereafter, the petitioner was issued a charge sheet vide memorandum dated 31st October, 2006 and by an order passed on the self-same date, the said respondent no.3 directed the Assistant Commandant of the unit to prepare a Record Of Evidence (hereinafter referred to as the ROE) in the disciplinary case in respect of one Sri Mahat Baruah and the petitioner. The said Mahat Baruah was the Head Constable and the petitioner was inferior in rank to the said Mahat Baruah. Upon completion of ROE, the respondent no.3 by an order dated 8th November, 2006 directed trial before the SSFC and the petitioner was issued a memorandum dated 8th November, 2006 asking him to appear before the SSFC on 9th November, 2006 and an order was passed by the SSFC on 9th November, 2006 itself dismissing the petitioner from service and that too by the self-same respondent no.3 who had issued the charge sheet and had made a spot enquiry pertaining to the alleged charge. Challenging the said order dated 9th November, 2006, the petitioner on 20th November, 2006, filed an appeal against the order of SSFC under Section117 of the Border Security Force Act, 1968 (hereinafter referred to as the said Act of 1968), contending inter alia that the order passed by the SSFC was an unreasoned one and that it was definitely under an obligation to record its findings and reasons in support of the decision. Reliance was placed upon a judgement delivered by the Hon'ble Court in the case of Roni Thomas Vs. Union of India and Ors., 2005 1 CalLJ 116, wherein the Hon'ble Court had inter alia observed that recording of reasons in support of a decision is one of the fundamental requirements of the rule of law and moreso when the SSFC was acting as a quasi-judicial authority. In the midst of pendency of the said petition, the petitioner was communicated a memorandum dated 31st January, 2007 issued on behalf of the respondent no.3 intimating inter alia that the respondent no.2 had been pleased to commute the sentence of "TO BE DISMISSED FROM SERVICE" to that of "to forfeit 10 years of past service for the purpose of pension and to undergo 89 days RI in Force Custody". Subsequent thereto, the respondent no.2 passed an order dated 22nd May, 2007, the operative part of which runs as follows :-

(3.) Mr. Goswami, learned advocate appearing for the petitioner submits that the charge against the petitioner was that he failed to stop cattle smuggling between BP No.279/25-S to BP No.279/26-S as would be explicit from the charge sheet itself, which runs as follows :-