ASIF BABA Vs. UNION OF INDIA

JUDGEMENT

(1.) Shri Mohammad Asif Baba - petitioner herein, was enrolled in Border Security Force (BSF) on 2nd July 1997. On 6th February 2007, at about 9.45 hours, petitioner while posted with 193 Battalion at BOP Jayantipur, West Bengal was allegedly found in possession of Rs. 1,42,500/-. The alleged recovery was made when officiating Commandant of Battalion, accompanied by other members of Force raided residential premises of petitioner in his absence and recovered from his bed-hold-all the afore-stated amount. The recovery prompted an inquiry into the matter. The report of inquiry (ROE) was prepared. Petitioner is said to have pleaded guilty. His plea was recorded and punishment of dismissal from service imposed on petitioner. Petitioner preferred a Statutory Petition against dismissal order before Director General, BSF. The grounds urged in the petition did not find favour with competent authority and petition was rejected on 2nd August 2007.

(2.) Petitioner questions order No. Estt/MA/SSFC/07/4205-15 dated 17th March 2007, whereby punishment of dismissal from service was imposed and order No. Disc/29/S-Petition/2007/13122-23 dated 16th July 2007, whereby petitioner's prayer for reinstatement was rejected, in writ petition on hand on the ground that inquiry and Summary Security Forces (SSF) Court's proceedings were conducted in violation of the Border Security Force Act, 1968 (BSF Act) and Rules made thereunder. Petitioner, insists that procedural rights available to him were not adhered to by respondents. It is pleaded that allegation levelled against petitioner did not per se constitute offence punishable under Section 13(e), Prevention of Corruption Act, 1988. It is next pleaded that even if allegation levelled is taken to constitute aforesaid offence, petitioner was to be tried before Special Court, constituted under the Act and SSF Court had no jurisdiction to deal with the matter muchless convict petitioner and award sentence of dismissal from services.

(3.) Petitioner insists that allegation levelled does not fall within purview of Section 46 BSF Act and therefore, outcome of SSF Court proceedings is not sustainable under law. Highlighting procedural irregularities committed during inquiry and subsequent trial, petitioner pleads that Commandant, who presided over SSF Court, was complainant on whose instructions Officiating Commandant had allegedly raided his residential quarter and recovered amount in question, and therefore, Commandant was not competent to preside over SSF Court. The SSF Court is said to have avoided to examine the important witnesses like Selection Grade Constable and Constable Jayprakash as their evidence would have knocked/bottom out of the case set up against petitioner.