Dipankar Datta, J. - (1.) This is another instance of an unequal combat between a lion and a lamb. Faced with the prospect of an imminent termination of service, thereby leading to loss of livelihood, the petitioner has stepped into the portals of this Court complaining of a stand of the respondents that he perceives to be bereft of rationality, lacks objectivity and smacks of victimization. The high prerogative writ jurisdiction of this Court has been invoked to nullify a notice calling upon the petitioner to show cause why administrative action as per section 11 of the Border Security Force Act, 1968 (hereafter the BSF Act) read with rule 22(2) of the Border Security Force Rules, 1969 (hereafter the BSF Rules) should not be initiated against him for the charge under section 46 of the BSF Act [committing a civil offence i.e. culpable homicide not amounting to murder under section 304, Indian Penal Code (hereafter the IPC)], for which he was tried by the General Security Force Court (hereafter the GSFC).
(2.) The factual scenario in the backdrop whereof the challenge is laid to the show cause notice may be traced first.
(3.) The petitioner, a constable of the Border Security Force (hereafter the BSF), was charged with causing the death of a minor girl (hereafter the victim) on January 7, 2011 at an identified site on the Indo-Bangladesh border in Dinhata subdivision of Cooch Behar district by firing a shot from his service rifle (a 5.56 mm INSAS rifle) and thereby committed the offence noted above. He was tried by the GSFC. At the trial several witnesses for the prosecution were examined including the father of the victim and medical officers, who conducted post-mortem on the cadaver of the victim and attended to the petitioner sometime after the unfortunate incident of firing. Upon consideration of oral and documentary evidence that were tendered, the GSFC returned a finding that the petitioner was "NOT GUILTY" of the charge and announced its finding on September 5, 2013 subject to confirmation, required by section 107 of the BSF Act. The confirming authority [Inspector General and Officiating SPL DG (EC), HQ Special DG, BSF (EC)] did not concur with the finding of the GSFC and passed an order dated September 1, 2014 titled "REVISION ORDER", thereby requiring the GSFC to reconsider its earlier findings upon consideration of the several aspects mentioned in sub-paragraphs (a) to (g) of paragraph 4 thereof to arrive at a just and proper finding. The GSFC reassembled in terms of the revision order and upon considering the aspects required by such order, announced its finding on revision on July 2, 2015, respectfully adhering to its earlier finding of "NOT GUILTY", subject to confirmation. It was thereafter that the confirming authority [Addl. Director General (EC), HQrs Spl. Director General (EC)] issued the impugned show cause notice dated June 1, 2016, relevant portion whereof reads as follows: "4. Whereas, the Court, after revision, adhered to its former finding of 'Not Guilty' of the charge. After going through the entire trial proceedings including the proceedings of revision, I, as Addl. Director General (Eastern Command), being the Confirming Authority, am of the view that the reason recorded by the Court in support of finding of 'Not Guilty' at the trial stage on 13/08/2013 and at the revision trial stage on 02/07/2015 are not convincing and, therefore, finding in respect of the charge is still not proper; and, 5. Whereas, the Court has erred in appreciating the evidence on record and found you 'Not Guilty' of the charge despite sufficient evidence on record to substantiate the charge against you and, therefore, the finding of the Court, is perverse and against the weight of evidences; and, 6. Whereas, I, as the Confirming Authority, have not confirmed the finding of the Court, being against the weight of the evidences', and propose to initiate administrative action against you u/s 11 of the BSF Act, 1968 read with Rule 22 of BSF Rules, 1969; and, 7. I, therefore, call upon you to show cause as to why administrative action as per Sec 11 of BSF Act, 1968 read with Rule 22 of BSF Rules, 1969 should not be initiated against you for the charge preferred against you at the GSFC trial as mentioned herein above; and, 8. If you have anything to urge against the proposed action, you may do so within 30 days from the date of receipt of this letter. If no reply is received within the stipulated period, if would be presumed that you have nothing to say against the proposed action and ex-parte decision will be taken in this matter. Duplicate copy of GSFC trial proceedings is enclosed for ready reference.";