MADAN KUMAR NAMA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner Madam Kumar Nama entered into the service of the Border Security Force (for short, 'BSF') in the year 1982 as Constable and was promoted to the rank of Lance Naik in the year 1990. On 21.8.95, he was asked by Head Constable R. D. Singh to maintain inside area of BOP when he picked up a brick and hit the Head Constable by it causing simple injury, an act amounting to misconduct. On the same day, a charge was framed against him for this gross misconduct under Section 20(a) of the Border Security Force Act (for short, 'the Act'). The said charge for using criminal force against a superior officer reads as follows: "In that, he at BOP K. K. Barrier on 21.8.95 when ordered by No. 66911261 H.C. R.D. Singh on his Coy to maintain inside area of BOP K. K. Barrier he picked up a brick and hit on the face in a simple injury." Sd/-21.8.95 (M. Damodaran) 2 1C Commandant 63 Brn. BSF" Place: Khemkaran (Pb) 21.8.95 After framing the charge the Summary Security Force court proceeded to assemble on 24.8.95 for trial of the petitioner on the said charge. One Gurbox Singh Asst. Commandant, 63 Bn. BSF was engaged as friend of the accused to assist him. One Shekhar Gupta Asst. Commandant was engaged to prepare the record of evidence during trial. Thereafter, the said court proceeded to examine H. C. Ramdayal Singh, H. C. Om Prakash Pandey, SI. Himmat Singh, Constable Asim Kumar Saha, Dr. D. S. Hanspal. During their examination, the petitioner was given opportunity to cross-examine those witnesses, but he declined. After conclusion of the trial, the Commandant found the petitioner guilty and by order dated 24.8.95, the petitioner was dismissed from service. Aggrieved, the present writ proceeding has been instituted calling into question the legality and correctness of the impugned order of punishment.

(2.) I have heard Mr. B. Das, learned Sr. counsel assisted by Mr. D. Chakraborty, learned counsel for the petitioner and Mr. P. K. Biswas, learned Assistant SG.

(3.) The first contention of the petitioner is that the proceeding of the Security Force Court was initiated on 21.8.95 and concluded on 24.8.95 in a great haste which reduced me proceeding into a mockery. That apart, it has been alleged that though the petitioner expressed his intention to examine the witnesses he was not given opportunity to produce any witness in support of his defence. Secondly, the witness Asim Kumar Saha had deposed in support of the petitioner but he was then threatened by the Commandant that he would suffer adverse consequences. Thirdly, Mr. Damodaran was second in command who asked him whether he pleaded guilty in presence of Gurbox Singh who was engaged to assist him and others. He pleaded guilty under pressure from the BSF personnel who assured him that he would be given lighter punishment if he had pleaded guilty. Fourthly, the law does not permit a second in command to hold Summary Security Force Court. Fifthly, rule 66 of the BSF rules, 1969 provides that at the commencement of the trial, the order convening the court and the names of the officers appointed to try the case should be read out within the hearing of the accused which was not done in the case on hand. Sixthly, though the allegation is that he picked up a brick and hit the Head Constable which only caused simple injury, such an allegation cannot be accepted at face value as the said Head Constable if really was hit by a brick would have sustained grievous injury. On all the above points, it was argued that the entire proceeding was highly arbitrary, illegal and not in conformity with the procedures laid down in the BSF Acts and rules and, therefore, the same should be quashed.