- (1.) THE present appeal mounts a challenge to the judgment and order dated 28.10.2009 passed in S.B.Civil Writ Petition No.4597/1997 instituted by the respondent herein, whereby the Summary Security Force Court proceedings conducted against the respondent/writ petitioner have been quashed and the rejection of his statutory petition has also been adjudged to be illegal. The appellants have, thus, been directed to reinstate the respondent/writ petitioner in service.
(2.) WE have heard Mr.V.K.Mathur, learned Assistant Solicitor General for Union of India and Mr.S.K.Nanda, learned counsel for the respondent/writ petitioner. The pleaded narration of the respondent/writ petitioner is that he had joined the Border Security Force (for short hereinafter referred -to as "the BSF/Force") in the year 1988 in the rank of Constable. While he was posted under the Commandant, 66 Battalion BSF, he was charged with the offence (s) under sections 354 and 451 IPC triable under Section 46 of the BSF Act, 1968 (for short hereinafter referred to as "the Act"). This was on 7.6.1995, whereafter on 9.6.1995, he was placed under arrest vide the order of the respondent No.4 i.e. Commandant, 66 Bn. BSF, Jaisalmer. According to the respondent/writ petitioner, though the purported proceeding in connection with the charge was thereafter pursued, it was in violation of Rule 44 and Rule 45 thereof. Be that as it may, as averred by him, the Record of Evidence (for short hereinafter referred -to as "the RoE") was prepared on the orders of the respondent No.4, whereafter according to him, in contravention of Rule 51 of the Rules, additional RoE was ordered to be recorded, which was done. Eventually, the respondent No.4 vide letter No.Estt./07/66 Bn/96/1987 dated 22.2.1996 proposed trial of the respondent/writ petitioner by the Summary Security Force Court (for short hereinafter referred -to as "the SSFC") in terms of Section 70 of the Act without complying with the mandatory requirements of Section 74 thereof. According to the respondent/writ petitioner, thereafter he was supplied with a copy of the chargesheet dt.22.2.1996 consisting of two charges under Section 46 of the Act containing endorsement of the respondent No.4 i.e. Commandant of the Battalion concerned that he (respondent/writ petitioner) be tried by the SSFC. The respondent/writ petitioner has averred that he was, subsequent thereto, served with a communication indicating that the trial of the SSFC would be held on 11.3.1996 at Battalion Headquarter, Jaisalmer. He has alleged that the respondent No.4 did not permit him to avail the services of an officer of his choice as "Friend of the accused" in terms of Rule 157 of the Rules and instead, nominated Shri Mangi Lal Choudhary, Dy.Commandant, 66 Bn. BSF to discharge this role. The respondent/writ petitioner has asserted that this officer was junior to respondent No.4 and was neither legally qualified nor had any experience to provide any effective assistance to him. At the end of the trial in the SSFC, the respondent No.4 sentenced the respondent/writ petitioner with the penalty of dismissal from service and promulgated the same in terms of Rule 159 of the Rules on the very same day i.e. 20.3.1996. Though, initially neither the copy of the SSFC proceedings was furnished to him nor he was apprised about his right of filing a statutory petition against the decision under Section 117 of the Act, he, through the intervention of his counsel, procured the same and eventually filed the said petition, which was rejected on 21.3.1997.
(3.) THE respondents in their reply, while endorsing the validity of the steps, taken including the initiation and conduct of the SSFC and the sentence of dismissal awarded, have averred that the respondent/writ petitioner while serving in 66 Battalion BSF, Jaisalmer on 7.6.1995 at about 1130 Hrs entered the house of HC K.S.Karjee (attached with SHQ BSF Jaisalmer) and tried to outrage the modesty of his wife. That the respondent/writ petitioner was identified to be the trespasser and the miscreant by the lady following which her husband (K.S.Karjee) lodged a written report about the incident, was stated. The respondents averred that the RoE was ordered thereafter and eventually, the respondent/writ petitioner was put on trial by the SSFC with effect from 18th March, 1996 under Section 46 of the Act and he, having been found guilty of charge, was sentenced with dismissal from service. The respondents controverted the imputation of contravention of the provisions of the Rules and pleaded that at all stages, the respondent/writ petitioner had been afforded due opportunity to defend himself, as contemplated in law. That in course of additional RoE, he was afforded the opportunity of cross examining the witnesses but he declined to do so, was mentioned as well. It was asserted that he was heard by the Commandant before he ordered that the RoE be conducted. The respondents stated that the Commandant, after careful study of the RoE, ordered that the respondent/writ petitioner be tried by the SSFC under the Act and the Rules framed thereunder. That the sentence of dismissal from service and the rejection of the respondent/writ petitioner's statutory petition, is valid in law in the attendant facts and circumstances, was underlined.;