UNION OF INDIA Vs. DEVI LAL SAHU

JUDGEMENT

(1.) This intra-court appeal is directed against the order dated 04.09.2008 passed in CWP No. 5158/2004 whereby the learned Single Judge allowed the writ petition filed by the respondent Devi Lal Sahu (hereinafter also referred to as the writ-petitioner), quashed the impugned order dated 10.11.2003 passed by the Summary Security Force Court ("the SSF Court"/"the SSFC") along with consequential other order, and held the writ-petitioner entitled to all the consequential benefits.

(2.) This intra-court appeal has been taken up for final disposal at this stage in the background that after condonation of delay in filing, a co-ordinate Division Bench proceeded to admit this appeal on 06.04.2009; and, while permitting expeditious hearing of the appeal, passed the order on the prayer for interim relief to the effect that the appellant shall pay 50% of the last drawn salary including emoluments to the respondent w.e.f. 01.04.2009 and, upon compliance of this condition, the operation of the impugned order passed by the learned Single Judge shall remain in abeyance. It appears that the appellants moved the Hon'ble Apex Court against the said order dated 06.04.2009 by filing a petition for special leave to appeal. The Hon'ble Apex Court dismissed the said petition on 30.09.2009 but on the request of the learned ASG, ordered for expeditious hearing and disposal of this intra-court appeal, preferably within six months. On 22.03.2010, upon the learned counsel for the parties bringing to our notice the order passed by the Hon'ble Supreme Court and making request for early hearing, we heard the learned counsel finally.

(3.) The relevant facts and the background aspects of the matter could be taken in comprehension thus: The respondent herein filed the writ petition aforesaid with the averments, inter alia, that he joined the Border Security Force (`BSF') on 05.09.1986; that he had been serving with sincerity and dedication and had received certain rewards too; and that he had, of course, been penalized twice, particularly on the allegations of absence without leave and over staying on leave. The writ-petitioner submitted that on 28.10.2003, he was served with a charge-sheet under Section 26 of the Border Security Force Act, 1968 (`the BSF Act') and was placed under close arrest at Headquarter 20 Bn. Barmer on 29.10.2003; and that the Assistant Commandant proceeded with the record of evidence (ROE) on 29/30.10.2003 wherein he denied the charges and stated that he had falsely been implicated. The writ-petitioner further submitted that 07.11.2003, he was informed that SSF Court was going to be held at Headquarter 20 Bn. BSF on 10.11.2003 and he was to be tried for committing offence under Section 26 of the BSF Act; that he could appoint a friend for defending his case but the name of the friend be informed to the office by 08.11.2003; and that he could appoint a civil counsel of his choice, if so desired at his own expenses. The writ-petitioner, however, contended that he was under close arrest since 29.10.2003 and hence, was not in a position to engage a counsel to defend himself and to intimate the name very next day. 3. The writ-petitioner pointed out that the SSF Court assembled on 10.11.2003 presided over by the Commandant 20 Bn. BSF but then, Shri A.K. Tambe was shown to have been appointed as the friend of the accused though never so appointed by him. The writ-petitioner alleged that the trial was held in a casual manner where the Presiding Officer, of his own, held that he had pleaded guilty and that Rule 142(2) of the Border Security Forces Rules, 1969 (`the BSF Rules') was complied with and proceeded to convict and sentence him with dismissal from service; and the said order dated 10.11.2003 was confirmed by the respondent No.3 on 01.12.2003.