N.N.MATHUR, J. - (1.) THIS appeal is directed against the judgment of the learned Single Judge dated April 17, 1998, dismissing the writ petition filed by the appellant -writ petitioner, hereinafter referred -to as the petitioner' seeking direction to quash the Communication dated 10.8.1987 confirming the punishment of dismissal from service under Section 40 of the Border Security Force Act, 1968, hereinafter referred to as 'the Act'.
(2.) THE petitioner, at the material time in the year 1987, was posted as Deputy Commandant (Joint Assistant Director) Headquarters, Dy. Inspector General, Border Security Force, Bikaner. He was charged for the offence under Section 40 of the Act alleging that he used contemptuous and disparaging remarks in his letter dated 18.3.1985 addressed to Shri W.G.J. Mudaliar, I.P.S. Inspector General of Police West Bengal and letter dated 4.9.1985 addressed to Shri M.C. Mishra. Director General, B.S.F., making slippry remarks on the entire I.P.S. Cadre saying that they were providing corrupt leadership to the B.S.F. as they were interested in their welfare alone and not the welfare of the officers and the men and also for describing the entire Boarder Security Force as 'Border Smugglers Force'. After trial, the General Security Force Court, hereinafter referred to as the Force Court', by order dated 25.4.1987 held the petitioner guilty of offence u/s 40 of the Act and awarded the punishment to 'take rank and precedence as if his promotion to the rank of Dy. Commandant bore the date 30 Nov. 1982' and to be 'severely, reprimanded'. However, In the opinion of Confirming Authority (Inspector General, B.S.F. (R&G;), the punishment awarded was inadequate. The confirming Authority expressed that the discipline is the back bone of any Armed Forces: passing contemptuous and disparaging remarks against senior officers and B.S.F. as a whole, are acts of grave indiscipline. The confirming Authority, not impressed with one of the grounds weighed with the Force Court that one of the allegations contained in his letter against some of the officers was true, reminded that charges against the accused are not of making false allegations but of passing contemptuous and disparaging remarks. Thus, the question before the Force Court was not as to whether the allegations in the letter were true or not. The confirming Authority further observed that even the truth has to be expressed in a proper language. In view of this, the confirming Authority by order dated 19.4.1987 directed the Force Court to re -assemble on 25.4.1987 to re -consider the sentence awarded to the petitioner. The Force Court re -assembled on 25.4.1987 after notice to the petitioner. The revision order was read over to the petitioner and he was given opportunity to address the Court. The petitioner prayed for some time to make his submissions. He also asked for the supply of the copy of the order of the Inspector General remanding the matter. The Force Court rejected the prayer for adjournment and proceeded -with the matter. On the same day, the Force Court after considering the material available on record enhanced the sentence to that of dismissal from service. As the Force Court awarded the sentence of dismissal from service, under the Rules, the Director General B.S.F. was the Confirming Authority, and not the Inspector General. Accordingly the sentence was confirmed by order dated 6.8.1987 of the Director General, B.S.F. The petitioner was informed of the said decision vide Communication dt. 10.8.1987 under the signatures of Shri Kan Singh, Commandant. By communication of the same date, petitioner was also informed that the Director General has rejected the statutory petitions dated 27.4.1987 and 1.7.1987 filed by him. The petitioner's statutory representation was rejected by the Central Government and the petitioner was informed under Communication dated 9th March, 1988. Petitioner approached this court challenging the order of dismissal by way of writ petition which has been dismissed by the judgment of the learned Judge dated 17.4.1998. We have heard Mr. M.Mridul, Senior Advocate and Mr. S.S.Lal, learned Counsel for the respondent. Mr. Mridul raised the following contentions: (i) that the petitioner's act of writing two confidential letters within the Organisation inviting attention of the higher authorities towards the corrupt activities of some of the officers, does not fall within any of the categories restricting or abrogating fundamental rights by Section13 of the Act and, as such, an act exercising the fundamental rights guaranted under Article 19(1)(a) of the Constitution, does not constitute an offence resulting into dismissal from service: (ii) that the act of the petitioner inviting the attention of the higher authorities of the nefarious and corrupt activities of some of its officers, by writing two confidential letter does not constitute an offence u/s. 40 of the Act. Firstly because the offending act cannot be said prejudicial to good order of the Force and secondly because there was no mens -rea in writing such letters. (iii) The trial leading to petitioner's conviction is vitiated being in violation of Rule 46 of the Border Security Force Rules, 1969, hereinafter referred -to as 'the Rules', in as much as hearing of a charge was intimated by Shri Kan Singh, Commandant, against whom the petitioner had made an allegation of indulging in smuggling activities and, as such, he was a person, personally interested in the matter; (iv) The petitioner was arbitrarily denied the opportunity to produce the witness in defence during the trial: (v) While revising the sentence, petitioner was not given an adequate opportunity to collect the material and address the court; (vi) The decision of the confirming Authority is illegal being non -speaking; the order does not indicate as to how and in what manner, the petition submitted by the petitioner was considered by the confirming Authority; and (vii) The punishment awarded in the facts and circumstances of the case is shockingly disproportionate.
(3.) MR . S.S.Lal, learned Counsel for the Union of India, before dealing -with each of the contentions raised by the petitioner, has invited our attention to the celebrated decision of the Apex Court in the case of Lt. Col. Prithi Pal Singh Bedi Vs Union of India, reported in AIR 1982 SC 1413 with a view to understand the true ambit and scope of judicial review in the matter's arising from the special courts constituted to deal with matters of personals of Armed forces. In the said case, the Supreme Court extensively considered the provisions of Army Act and the Rules made thereunder and the rights of the persons to whom the Army Act applies, and has laid down guidelines as to what extent, the courts should interfere with the matter of Armed Forces. Since the case in hand also pertains to Armed Force, may be of Boarder Security Force, it would be appropriate to refer to the relevant provisions of the Act and the Rules.;