ABHIMANYA BASUMATARY Vs. UNION OF INDIA

JUDGEMENT

(1.) Challenging not only the punishment of dismissal from service imposed by Summary Security Force Court (herein after refeired to as the SSFC), but also rejection of his appeal made against the penalty aforementioned, the petitioner, namely, Shri Abhimanya Basumatary, has filed this writ application seeking issuance of appropriate directions to the respondents.

(2.) In a nutshell, petitioner's case runs as follows: (i) The petitioner was initially appointed as BSF GD Constable. He wsa promoted as Lans Naik in 1996 and in 1997, he was posted as Head Constable at Baishnab Nagar. Till the time of his dismissal from service, petitioner remained posted at Baishnab Nagar. On 8th February, 1999, the petitioner along with two other constables, namely, No. 90171510 Constable Ghanashyam and No.910077288 Constable Surjit Singh was deployed for 'Naka' (i.e, patrolling) duty. On 10.12.99, the petitioner was served with a notice issued by respondent No.3. In this notice, it was alleged that on 9.2.99, during the night, when the said patrolling party, headed by the petitioner, was on Naka/patrolling duty near Pillar No. 197, a large number of animals like bulls, cows and buffallows were smuggled to Bangladesh from India and out of the animals so smuggled, 18 bulls and 12 buffallows were caught during special drive near Pillar No.197, though the road for passing of animals is located near the said 'Naka' point. By this notice, the petitioner was asked to submit his explanation by 11.2.99. (ii) The petitioner submitted his written reply on 11.2.99, wherein he asserted that he had conducted 'Naka' duty along with the constables aforementioned as usual and that on 9.2.99 at 9.30 PM, they went to Pillar No.197-4S and, on hearing sound of firing from near the said pillar and on noticing that some bullocks and cows were proceeding towards village of Bangladesh from Indian side, the petitioner/his party caught hold of the said animals, but minutes thereafter, the Company Commander came there along with QRT party and some cows. The petitioner too produced ten bullocks before the Company Commander. The petitioner, therefore, submitted that he and his party had discharged their assigned duties without negligence. (iii) On 13.2.99, the respondent No.3, while placing the petitioner under suspension, served him with a charge sheet and directed that record of evidence (ROE) as provided, under Rule 48 of the BSF Rules be prepared and Sri TK Khajuria, Assistant Commander of 143 Bn BSE, was ordered to record the ROE. The charge sheet served on the petitioner, read as under:

(3.) The respondents have resisted the prayers of the petitioner by filing an affidavit and thereafter, in response to a counter affidavit filed by the petitioner, respondents have filed a rejoinder, the case of the respondents, as reflected from their affidavits, may in brief stated as under: (i) The petitioner was enrolled in 85 Bn BSF as constable on 29th November, 1984. He was posted to 143 Bn BSF on 25th October, 1989. The petitioner was promoted to the rank of Lance Naik with effect from 23rd December, 1991 and then, promoted to the rank of Naik with effect from 12th November, 1996. (ii) Since the time of his enrolment, on 29.11.84, as a constable in 86 Bn BSF, the petitioner, till his dismissal from service, was already awarded following four punishments: (a) BSF Act, 1968, under section 40: On 23rd October, 1989, while the petitioner was on the strength of 72 Bn BSF, he was found attempting to pass materials to examinees of BSF 1 st Class examination and was awarded 7 days RI by the Commandant, 72 Bn BSF. (b) BSF Act, 1968, under section 19 (a) : On 13th April, 1968, for absenting himself without leave, petitioner was awarded severe reprimand by the Commandant, 143 Bn BSF. (c) BSF Act, 1968, under section 21 (2) : On 28th August, 1998, for disobeying a lawful command given by his superior officer, petitioner was awarded severe reprimand by the Commandant, 143 Bn BSF. (d) BSF Act, 1968, under section 21 (1) : On 20th October, 1998, for disobeying in such a manner as to show a willful defiance of authority to a lawful command given personally by his superior officer in the execution of his office, petitioner was awarded severe reprimand by the Officiating Commandant, 143, Bn BSF. (iii) As regards the occurrence, in question, respondent's case is that on the intervening night of 8-9th February, 1999, petitioner with two others, namely, No. 90171510 Constable Ghanshyam and No.91007288 Constable Surjit Singh, were detailed for Naka duty near Border Pillar (ie, BP) No. 197-M under jurisdiction of BOP Kanchantar of 143 Bn BSF and on that day, Company Commander Sh Rai Singh, AC, received information for 'G' Source that huge number of cattle-heads were to be smuggled to Bangladesh between 2300 hrs from near BP No.197-M, aforementioned. On that day, i.e. on 8-9th February, 1999, the Company Commander along with Inspector (G) RS Mina and 10 others proceeded towards BP No. 197. They laid two Special Naka keeping themselves at visible distance from the Naka party of HC A. Basumatary, (i.e., the petitioner) by NVG. At about 23 hours, Company Commander heard some people speaking in Bengali language from the Naka point (i.e. place where Naka had been laid by the petitioner), but due to distance, the Company Commander could not understand what they were talking. After about half an hour of such talking, Company Commander observed, with the help of NVG, some catties crossing International Border from near BP No.197, Company Commander, immediately challenged the carriers of catties. Both the said special Naka parties, led by the Company Commander, illuminated the area with search lights and they saw huge number of catties coming from Naka hut side of the petitioner. They also saw that about 15 to 20 catties had already cross the International Border and about 50-60 Bangladeshi criminals were also standing near the International Border in Bangladesh. The Bangladeshi criminals fired bullets towards the Naka party by their country-made weapon. Both the Naka parties of the Company Commander were engaged to catch and close the catties. In the meantime, Inspector (G) RS Mina and Constable Anil Kumar asked the Naka party of the petitioner, in loud voice, to extend help and catch catties, but there was no response and no action was taken by the Naka party of the petitioner. On hearing the noise and sound of firing, PC Kanchantar, with motor cycle and patrol party of BOP Alipur, also reached the spot, for extending help. After closing the catties, Company Commander reached the Naka hut and asked petitioner's Naka party as to why they had not taken any action to seize the catties. In reply, Constable Ghanashaym and Constable Surjit told them that after closing the Naka, both were sent for rest inside Naka by the petitioner and the petitioner remained on duty alone. They woke up on hearing the noise and firing. Company Commander, again asked them as to why they had not illuminated the area with their search-light. In reply, Constable Ghanashyam stated that HHSL was in the hands of the petitioner and though he had tried to take the HHSL, the petitioner did not hand over the same. During this incident, the petitioner was on duty and the other two constables were on rest. The catties crossed over to Bangladesh just touching the said Naka hut (which the petitioner was guarding) and distance between the two can, at best, be 1 to 5 yards. Based on the report of Company Commander, the petitioner and two others, namely, Ghanashyam and Sujit were served with charge sheet under section 40 of BSF Act, 1968, for having committed offence and ROE was ordered against the petitioner and two others. After ROE was recorded, the petitioner was tried by SSFC (Sumary Security Force Court) under section 40 of BSF Act by the Commandant 143. When the trial commenced, the petitioner pleaded guilty to the charge on 13.5.99 and his plea was recorded. The petitioner was held guilty of the charge framed against him, he was convicted accordingly and awarded the sentence address on the same day. The petitioner never came to the Commandant on 25.5.99, to file any appeal. The petitioner was awarded orders of dismissal from service by the SSFC on 13.5.99. This sentence was passed on the gravity of the offence as well as circumstantial evidence brought forth in the ROE and also petitioner's previous service record, which shows that the petitioner was awarded as many as 4 (four) punishments earlier. Before the sentence was awarded by the competent authority (i.e. respondent No.3), the total service of the accused petitioner were looked into thoroughly, but the same was found not at all satisfactory. The respondent No.3 awarded to the other co-accused constables minor punishments based on the circumstantial evidence governing their case.