AMAL BHUSHAN DEB Vs. UNION OF INDIA

JUDGEMENT

(1.) THE legality of the order dated 21. 05. 2001 removing the petitioner from service with pensionary benefits under Rule 22 (3) of the Border Security Force Rules, 1969 (hereinafter referred to 'the BSF Rules' for short) is called into question in this writ petition.

(2.) THE factual matrix giving rise to this writ petition is not in dispute. Prior to his removal, the petitioner was serving as Sub-Inspector in the Boarder Security Force (hereinafter called 'bsf' ). On 26/27. 06. 1993, while the petitioner was deployed at Kishtwar, certain allegations were made against him for commission of offences punishable under Section 46 of the Border Security Force Act, 1968 (hereinafter called 'the BSF Act' for short) read with Sections 302 and 353 of I. P. C. The first charge against him is that while he was at Tourist Hostel Complex, Kishtwar as an officiating Company Commander of 'e' Coy. of 123 Bn. BSF, he caused the death of three civilians by firing. The order charge is that while at parade ground at Kishtwar in June, 1993, the petitioner used criminal force against one Sri Abdul Quyoon Dar of SHQ Police Station, Kishtwar, who is a public servant, when the said SHQ had asked for handing over three suspected militants. The petitioner was asked to show cause against the charges levelled against him, which was replied to by him by denying the charges against him. It would appear that in connection with the aforesaid charges, General Security Force Court (hereinafter called 'gsfc' for short) was constituted to try the petitioner. The GSFC, which held its proceeding from 15. 02. 1997 to 25. 02. 1997 returned a verdict of not guilty subject to confirmation. The confirming authority, after considering the findings of the GSFC, had taken the view that the findings were against the weight of the evidence on record and hence, ordered for revision of the findings. In accordance with the aforesaid order, the GSFC resembled and after reconsidering the matter again held the petitioner not guilty of the charges levelled against him. The confirming authority apparently did not accept the verdict returned by the GSFC and decided to proceed against him under Rule 22 (2) of the BSF Rules and thereupon issued a notice to the petitioner to show cause as to why a punishment of removal from service with pensionary benefits should not be imposed upon him. The petitioner submitted representation against the proposed punishment. It would appear that after considering the representation of the petitioner, the confirming authority imposed the proposed punishment and removed him from service with pensionary benefits. At this stage, it may be noticed that the payment of pensionary benefits was not made to the petitioner for sometime due to problems of interpretation concerning the said Rules, 22 (2) of BSF Rules. However, the pensionary benefits were ultimately released in favour of the petitioner on 07. 08. 2002 at the rate of two third of actual entitlement under the provisions of Rule 41 of the Central Civil Services (Pension) Rules, 1972 vide PPO No. 240550226332. Aggrieved by the order of removal, the petitioner is approaching this Court by way of this writ petition.

(3.) IN the show cause notice issued by the respondent No. 4, it was stated by him that the petitioner was unfit for further retention in service and tentatively proposed to remove from service with pensionary benefits under Rule 22 of the BSF Rules. The respondent No. 4 decided to issue the said notice as he was of the considered view that the findings of the GSFC are grossly against the weight of the evidence on record and, as such, such the findings were not confirmed. The contention of Mr. K. N. Bhattacharjee, learned senior counsel for the petitioner is that under BSF Act and the Rules made thereunder, there is an initial option either to have the petitioner tried by a GSFC or to take action against him under Rule 22 (3) of the BSF Rules and that in his case, the option having been exercised to try him by a GSFC, the respondent No. 4 is not competent to take recourse of Rule 22 (3) after the petitioner has been acquitted both at the time of original trial and on revision. The learned counsel further submits that since the petitioner had in fact been tried by GSFC, which both at the time of original trial and on revision had returned a verdict of "not guilty", it cannot be said that it was inexpedient or impracticable to try the petitioner by a GSFC and, therefore, the impugned order of removal is without any jurisdiction. On the other hand, Mr. K. Bhattacharjee, learned Assistant SG appearing for the respondents has strenuously urged that the instant case is squarely covered by the principles laid down by the Apex Court in Chief of Army Staff and Ors. V. Major Dharam Pal Kukrety, reported in (1985) 2 SCC 412. Drawing my attention to Rule 22 (3) of the BSF Rules, he further submits that the provisions of Rule 14 (2) of the Army Rules, 1954 are in pari materia with the aforesaid provisions of the BSF Rules and, therefore, the respondent No. 4 does not commit any illegality in issuing the impugned order. He, therefore, prays that the writ petition being devoid of substance is liable to be dismissed.