SRI RAM Vs. UNION OF INDIA
LAWS(J&K)-1986-12-11
HIGH COURT OF JAMMU AND KASHMIR
Decided on December 08,1986

SRI RAM Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

- (1.) THE petitioner was Sub -Inspector in the Border Security Force (BSF, for short) and in that capacity he was punished by the General Security Force Court (GSFC, for short) constituted under the provisions of the Border Security Force Act and the Rules framed there under. Brief resume of the facts is given hereunder.
(2.) AT Sona Pind BOP while posted as Post Commander on 5 -11 -1978, the petitioner is said to have issued orders contrary to rules to one L/NK and three Constables of the same BOP to move from Sonapind BOP to Muthal at 1530 hrs, when the weather was inclement and there was residual snow upto 60 cms. resulting into death of all the four personal enroute due to heavy snow storm and bad weather. This was held to be act prejudicial to good order and discipline of the force. On the aforesaid charge the petitioner was convicted under Section 40 of the Border Security Force Act (hereinafter referred to as the ACT) and sentenced to forfeiture of four years service for the purposes of promotion and forfeiture of four years service for the purposes of pension. The sentence was confirmed by respondent No. 2 and, therefore it was promulgated. The petitioner is said to have submitted a petition under Sec. 117 of the ACT against the findings and sentence of the GSFC to the Govt. of India which is said to have been rejected on 254 -1981. Therefore, the petitioner filed the present writ petition. The impugned punishment awarded to the petitioner is challenged on a number of grounds.
(3.) IT is stated that the entire proceedings of GSFC are illegal, invalid and complete nullity in the eye of law. A Staff Court of Inquiry had been ordered by the DIG, BSF, Bandipora to investigate into the circumstances as to how the four persons of 30 Bn BSF were found buried under snow on 7 -11 -1978 and to fix responsibility for the occurrence of the incident. Before the said Court could fix the responsibility, the petitioner was charge -sheeted and proceedings for his trial were initiated. The proceedings of the GSFC are said to be illegal and nullity because respondent No. 3 was not competent to initiate proceedings against the petitioner. He is said to have been examined as a witness in Staff Court of Inquiry on 14 -11 -1978 and on the same day he framed a charge against the petitioner, therefore, he is said to have become a potential witness against the petitioner and was, therefore, disqualified to prepare the record of evidence against the petitioner. It is further averred that the petitioner was not guilty of any offence muchless any offence under the Act and, therefore, any proceedings initiated against him were bad in law. Respondent No. 3 is said to have violated the mandate contained in Rules 44 & 45 of the Border Security Force Rules (hereinafter -called the Rules). It is stated that the record of evidence could not be collected against the petitioner unless requirement of Rules 44 & 45 was complied with The proceedings of the GSFC are said to be violative of the petitioners fundamental rights because during the departmental enquiry, it was found that others were also responsible for the alleged charge, the petitioner alone was singled out which is violative of the principles of natural justice. The petitioner has tried to support his case by quoting extracts from the report of the Court of Inquiry and from the proceedings of the GSFC. On merits it is stated that there is no evidence against the petitioner.;


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