RAJ KAMAL SUDAN Vs. UNION OF INDIA

JUDGEMENT

(1.) RAJ Kamal Sudan, a constable in the Border Security Force, was dismissed from service vide Commandant 51 Bn. BSFs order of August 31, 2001 pursuant to the Verdict of a Summary Security Force Court held on 31 -08 -2001 on a charge under section 21(1) of the BSF Act 1968, in that, he had shown willful defiance of Authority and Lawful command given personally by his superior No. 77243006 S.I. Darshan Lal to proceed to FDL Jungle, to which he had indicated that he would not go to the post and had thereafter refused to proceed to the post. He had filed this petition questioning the findings and Verdict of the Summary Security Force Court and seeking its quashing on the grounds that the allegations leveled against him in the charge were false, and proceedings conducted prior to and by the Summary Security Force Court were illegal, in that, he was unaware about the nature of the proceedings and was not afforded any opportunity to make statement or cross -examine the witnesses or produce his defence. Elaborating the plea taken in the writ petition, it is stated that the petitioner was not conversant with the English Language, and was thus deprived of his right to know about the proceedings because the proceedings were conducted by the respondents in English Language. The petitioner was not provided any opportunity either to make his statement or cross -examine the witnesses or for that matter to produce his defence in the case.

(2.) PROJECTING his plea of violation of the BSF Rules in conducting his trial, it is submitted that petitioner had not been afforded any opportunity of hearing before amendment of charge nor was he informed about the plea of guilty or its effect as contemplated by the Rules. According to him he was not provided any Friend as required under Rule 157 of the Border Security Force Rules and proceedings held by the respondents indicating that V.K. Mohanty had been provided to him as his friend were against the facts. Further grievance of the petitioner is that he was not provided the copies of the proceedings though he was entitled thereto under law which had prejudiced him.

(3.) CONTROVERTING the case set up by the petitioner in the writ petition regarding violation of the Border Security Force Act and Rules in conducting proceedings prior to and during the trial of the petitioner by the Summary Security Force Court, and giving the history of the case, the respondents have indicated that during the course of his duties at FDL, BSF Check, petitioner had refused to obey the lawful command of his Commander, Head Constable Bagh Hussain, who wanted his party, which included the petitioner to move ahead towards FDL, BSF Check. It was after much persuasion that the petitioner had agreed to move towards BSF Check and on reaching there, S.I. Darshan Lal had ordered him to move further to his post FDL where he had been deployed but the petitioner refused to obey the order. The petitioner is stated to have even refused to handover the LMG and had rather become violent. He had threatened saying that "Mein Dekhta Hoon Meri LMG Kon Leta Hai"? The LMG was however, taken from him forcibly.