Pramath Patnaik, J. - (1.)In the accompanied writ application, the petitioner (now deceased) has inter alia prayed for quashing impugned order dated 24.08.2005, whereby the husband of the petitioner no. 1 has been dismissed from services and further to quash impugned order of review dated 07.11.2005 and communicated to the petitioner vide order dated 21.11.2005, whereby the punishment of dismissal from services has been reviewed as to forfeiture of five years of service for the purpose of promotion and forfeiture of five years of service for the purpose of pension.
(2.)The facts, as delineated in the writ application, in brief, is that the husband of petitioner no. 1 while working as Assistant Sub-Inspector (Clerk), a proceeding in terms of 20(a) of the Border Security Force Act. 1968 (hereinafter referred to as "the Act" for the sake of brevity) was initiated against the petitioner on the basis of complaint made by one Sri Navin Chandra, Head Clerk, that while he was handing over the file to husband of petitioner no. 1, he was abused and assaulted by him, which led to passing of impugned order of dismissal from services. Though, the aforesaid order was reviewed and vide order dated 07.11.2005 and the punishment of dismissal from services commuted to forfeiture of five years of service for the purpose of promotion and to forfeiture of five years of service for the purpose of pension. Being aggrieved, the deceased-employee preferred this writ application for redressal of his grievances. It is pertinent to note here that during pendency of the writ application, the petitioner Hari Singh died on 106.2015, which fact was brought on record by filing I.A. No. 3639 of 2016 and in place of deceased-employee, his legal heirs were substituted.
(3.)Learned counsel for the petitioners submitted that when the departmental proceeding was set in motion, statement of the complainant was taken, in which, during cross-examination, the complainant has nowhere stated that the petitioner has ever assaulted rather he stated that hot talk had taken place. It has further been submitted that vide letter dated 22.08.2005, a proceeding under Rule 63 (4) (6) of the Border Security Force Rules, 1969 (hereinafter referred to as "the Rule" for the sake of brevity) was initiated, which culminated in passing of impugned order of dismissal dated 24.08.2005, without giving any proper opportunity to the petitioner in violation of Rule 20 and 22 of the Act and within two days everything was done, which shows that the respondents were pre-determined to dismiss the petitioner. It has further been submitted that respondent no. 4-Commandant has got no jurisdiction to pass the impugned order dated 24.08.2005 without approval from the competent authority. Being aggrieved, the delinquent employee preferred a petition on 25.08.2005 for review of the impugned order of dismissal, which was disposed of vide review order dated 07.11.2005. It has been submitted that though the reviewing authority has considered that the order of dismissal to be illegal and beyond the record but instead of quashing the order of punishment, commuted to forfeiture of five years of service for the purpose of promotion and forfeiture of five years of service for the purpose of pension, which is too harsh and against the Rules.