- (1.) This writ application has been preferred challenging a showcause notice dated 24th June, 2008 and a memorandum dated 27th June, 2009 issued by the respondent no.4.
(2.) A brief review of the relevant facts would suffice. Upon emerging to be successful in a selection process, the petitioner was appointed to the post of Constable under the Border Security Force (hereinafter referred to as BSF) and upon successful completion of training for 9 months, the petitioner was posted at Manipur from 1989 till 1991. Subsequent thereto, while discharging his duty in F-COI of 30 BN at Kashmir and on the intervening night of 26/27th March, 1992, the petitioner sustained a bullet injury at his lower abdomen due to militant fire. Such injury was ascertained to be attributable to government bonafide duty in a Court of Enquiry by an order dated 15th April, 1992. On and from the year 1994 till 2006 the petitioner was placed under different battalions and thereafter in the month of November 2007 the petitioner was placed under 191-BN BSF at Kalyani and was allotted light unarmed duties. Thereafter, the petitioner was referred to the Institute of Psychiatry, Kolkata by the BSF authorities for the purpose of ascertainment of the petitioner's health status and pursuant thereto an examination was conducted and a report was issued on 23rd November, 2007 and again thereafter on 1st February, 2008 the petitioner was examined by the Department of Health and Family Welfare and it was inter alia opined that the petitioner is fit to continue his normal duties. Subsequent thereto, on 24th June, 2008, the petitioner was issued a show-cause notice by the respondent no.4 communicating a tentative proposal of "retirement on grounds of unfitness" under Rule 25 of the Border Security Force Rules, 1969 (hereinafter referred to as the said Rules). By the said memorandum, the petitioner was also intimated that he would be at liberty to apply for Review Medical Board. Pursuant thereto the petitioner sought for a Review Medical Board and by a memorandum dated 1st May, 2009 issued by the respondent no.4 the petitioner was again directed to report before a Medical Board on 4th May, 2009. On the said date no examination was held by the authorities. Thereafter by a memorandum dated 16th June, 2009 issued by the respondent no.4 the petitioner was advised to submit his unconditional notice for voluntary retirement within 24th June, 2009. The petitioner responded to the same by a representation dated 17th June, 2009 but without considering the same the respondent no.4 by a memorandum dated 26th June, 2009 issued the order of retirement from service on ground of physical unfitness. The date of effect of such retirement was stipulated to be 26th June, 2009 by a further memorandum dated 27th June, 2009 issued by the respondent no.4. Aggrieved by the said decision the petitioner made representations dated 2nd July, 2009 and 29th November, 2009 and in response thereto a memorandum dated 9th January, 2010 was issued by the respondent no.4 intimating inter alia that the petitioner's application dated 29th November, 2009 addressed to the Director General, BSF is under consideration of FHQ-BSF, New Delhi and the decision of the same will be communicated to the petitioner in due course of time. In the said representations, the petitioner indicated that he was examined by Dr. Kaustav Chakraborty, MD, Psychiatry attached to the Institute of Neuroscience Kolkata on 6th May, 2010 and it was inter alia recommended that the petitioner is fit to carry out normal responsibilities.
(3.) Ms. Somali Mukhopadhyay, learned advocate appearing for the petitioner submits that the petitioner suffered bullet injury while discharging his duty at Kashmir and such injury was ascertained to be in discharge of government bonafide duty by the competent authority. Such trauma and stress of bullet injury affected the petitioner's health and the petitioner prayed for light duties and accordingly the BSF authorities referred the petitioner to the Institute of Psychiatry and the doctors opined that the petitioner's behavioral pattern was not violent and he was otherwise fit to continue his normal duties as would be explicit from the reports dated 17th November, 2007, 23rd November, 2007 and 1st February, 2008 at pages 60 to 62 of the writ application. According to her as the petitioner protested against an illegal imposition of punishment on 27th November, 2007 by the Commandant and the denial of the authorities to allow the petitioner to ventilate his grievance before the Director General through a notice dated 11th January, 2008, the authorities, upon rejection of the petitioner's claim by a memorandum dated 15th May, 2008, vindictively issued the show-cause notice dated 24th June, 2008.;