NAVDEEP SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner was appointed as Constable Driver on 16/08/1982 and posted in 10th Bn. B.S.F. He was promoted as Lance Naik in February, 1995 and further promoted as Head Constable in May, 2001. While he was posted at S.T.C. BSF, Udhampur, it is stated that a false charge was framed against him under Section 20(A) of the BSF Act on the allegation of using criminal force to his superior officer, kicked on the scrotum and punched on the chest and face with his fist of IRLA No. 19350148 Shri Banu Pratap Singh, Deputy Commandant of the same S.T.C. at 6:40 Hours on 03/11/2001. The petitioner was tried by the Summary Security Force Court (hereinafter for short referred to as 'Summary Court') on 12th/13th November, 2001 on the said charge of using criminal force on his superior officer. He was, however, found guilty of having used the criminal force against his officer by the Summary Court.

(2.) THE grievance of the petitioner is that neither the offence report, containing the allegation in the format provided in Appendix -4, has been prepared, nor the procedure prescribed in Rules 43 to 49 of the B.S.F. Rules, 1969 has been followed by the Summary Court in recording the evidence and holding the petitioner guilty of the charge. Consequently, the finding and the sentence, promulgated by the Commandant that the petitioner be reverted to the rank of Constable is legally unsustainable. It is also stated that the petitioner has been imposed a major punishment of reversion without affording any opportunity of being heard during the conduct of the proceedings under the Summary Court. The petitioner was neither summoned nor given an opportunity to prove his innocence. The petitioner has also not been provided with the abstract of evidence nor was given an opportunity to make the statement under Rule 49 of the B.S.F. Rules, 1969. It is also stated that both the inquiry conducted and the charge -sheet framed against the petitioner are in contravention of the provisions of law in general and the B.S.F. Rules framed thereunder in particular. The petitioner has even not been given an opportunity to produce any witness in his defence. The respondents also did not apprise him about his entitlement to take the assistance of a person even the legal practitioner of his choice. That the notice of proposed punishment was not even given to the petitioner and, thus, deprived him of his right to file the reply or explanation. The petitioner further stated that the statements of the witnesses were recorded during the proceedings of Summary Court in his presence, but no sufficient opportunity was given to him to defend his case properly. The petitioner, however, requested the Director General, BSF, for personal hearing before his appeal is decided. The appeal of the petitioner, however, was rejected without hearing him, being devoid of merit. The action of the respondents, firstly, in imposing the punishment of reverting the petitioner to the rank of Constable vide order dated 13/11/2001, and further order dated 28/01/2003 issued by the Director General BSF, by which appeal of the petitioner has been rejected, is the subject matter of challenge in this writ petition.

(3.) A statutory petition by way of appeal, addressed to the Director General, BSF, by the petitioner to assail the correctness of his sentence of reversion to the rank of Constable, was examined in detail and considering all facts and circumstances of the case, the appeal was rejected being devoid of merit. It is further stated that the petitioner remained present throughout recording the evidence and full opportunity was given to him to cross -examine the witnesses in compliance to the provisions of Rule 48 of the B.S.F. Rules. An ample opportunity was given to the petitioner to produce the witnesses in his defence. The petitioner was, however, informed during the trial at Summary Court that he may take the assistance of any person including the legal practitioner vide order dated 09/11/2001 and the petitioner had given the name of Sh. S.P.S. Malik, Dy. Commandant of STC BSF, to act as friend of the accused during the trial. The officer remained present and attended the Summary Court trial. Further submission of the respondents is that neither BSF Act nor Rules provide service of the show -cause notice to a BSF personnel tried and sentenced by the Summary Court. The punishment awarded commensurates with the gravity of the offence, and the averments made in the petition do not disclose any procedural irregularity or illegality in the trial by the Summary Court that warrants judicial review.