SUNIL KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) Through the medium of this petition, the petitioner is seeking to quash Order No.Estt/71Bn/SSFC/2001/4543-64 dated 05.05.2001 issued by Commandant, 71 Battalion, BSF, respondent No.3 herein, whereby he was dismissed from service with effect from 05.05.2001.The petitioner is also seeking a direction to the respondents to reinstate him from the said date.

(2.) The facts, as projected in the petition, are that the petitioner was appointed as a Constable on 28.05.1990 in 71 Bn. BSF. It is averred that in the year 2000 his wife fell seriously ill and he proceeded on leave with effect from 06.06.2000 to 04.08.2000, which was extended upto 03.10.2000. Since during this period the wife of petitioner did not recover, as such he applied for extension of leave, however, the same was not granted and the petitioner was recorded as absent with effect from 04.10.2000 to 04.02.2001. Since the wife of petitioner was not well and there was none at home to look after her, the petitioner reported for duty accompanied by his wife on 05.02.2001. It is averred that he was allowed to resume his duties. It is averred that on 09.02.2001 the wife of petitioner again became serious, the petitioner took her to the concerned doctor in the BSF, since her condition did not improve, the petitioner took her to Civil Hospital on 10.02.2001, from where she was referred to specialized hospital at Gandhi Dham in Gujarat. Thereafter, the petitioner shifted her to Government Medical College, Jammu. When the wife of petitioner recovered from illness, the petitioner again reported for duty at Gandhi Dham in Gujarat on 15.04.2001. He, however, was arrested and respondent No.3 ordered for convening of Summary Security Force Court. The petitioner was tried and the Summary Security Force Court pronounced the sentence of dismissing the petitioner from service and the order of dismissal was received by the petitioner through registered post at Jammu in June, 2001. It is averred that feeling aggrieved the petitioner filed an appeal before Director General of Police, BSF, respondent No.2 herein, however, the same too came to be dismissed vide order dated 12.08.2002. Hence, the present petition.

(3.) Learned counsel appearing for petitioner argued that the petitioner was not given free and fair trial nor properly recorded his guilt as mandated in terms of Rules 63, 134, 142, 143, 144, 145, 157 and 166 of BSF Rules, 1969. He further argued that since respondent No.3 had taken the decision to try and prosecute the petitioner, as such he was legally debarred from presiding over the Court. He also argued that the punishment awarded is also not proportionate to the offence, if at all committed by the petitioner.