- (1.) Petitioner has invoked jurisdiction of this Court under Article 226 of the Constitution of India assailing the order dated 17.06.1999 passed by Commandant 81 B.N.B.S.F. Dismissing the petitioner from the post of Constable B.S.F. (Annexure 2) and the order dated 20.09.2000 in statutory appeal confirming the order of dismissal (Annexure 3) passed by Director General of B.S.F.
(2.) Brief facts leading to the dismissal of the petitioner from the force as setup in the counter affidavit filed by Ravi Kumar Ponoth, Dy. Inspector General, B.S.F. inter alia are as under : I. On 13 th September 1998, while 10 Battalion B.S.F. was deployed on Indo Bangladesh Border at Tura. Petitioner (No. 86003230 Constable Paras Singh) and No. 89455507 Constable Pradeep Phukan deployed at BOP Nokchi were on Observation Post duty at Observation Post No. 2 (OP No. 2) and No. 92403730 Constable Yashpal and No. 93002533 Constable Subhash Singh were on Observation Post duty at Observation Post No. 1 from 0600 hrs. to 1200 hrs. The task of Observation Post No. 1 was to dominate border from BP No. 1104 to BP No. 1105/3 S by observation and Observation Post No. 2 was to do patrolling from BP No. 1105/3 S to BP No. 1107 as there was no tower in that area. II. All the above personnel were also issued with 03 Magazine and 50 rounds each. In addition to that Constable Subhash Singh was issued with a telephone, Constable Yashpal and Constable Pradeep Phukan with binoculars and petitioner Constable Paras Singh with a wireless set. III. No. 86003230 Constable Paras Singh and No. 89455507 Constable Pradeep Phukan performed duty in their area of responsibility till 0840 hrs. and decided at their own to go to Observation Post No. 1, thus, leaving their assigned place of duty unmanned. They reached Observation Post No. 1 at about 0845 hrs. and further went to BP No. 1104/6 S and 7 S in front of a Bangladesh village Nokchi with the intention for womanizing in the BD village. All the 04 personnel left their telephone/wireless set and Binoculars at Observation Post No. 1 before going towards BD village Nokchi. After reaching near BP No. 1104/6 S, they split themselves into two parties ie. Constable Pradeep Phukan and Constable Yashpal in one group and Constable Subhash singh and constable Paras Singh in another group. Constable Pradeep Phukan and Constable Yashpal decided to go first to BD village, Nokchi followed by Constable Subhash Singh and Constable Paras Singh. Constable Yashpal and Constable Pradeep Phukan entered Bangladesh via BP No. 1104/6 S while Constable Subhash Singh and Constable Paras Singh waited near BP No. 1104/7 S for their turn. IV. Constable Pradeep Phukan crossed International Border and went to a particular house inside the Bangladesh village Nokchi with his personnel weapon. Constable Yashpal accompanied him for some distance but did not enter the house. Constable Paras Singh and Constable Subhash Singh remained inside Indian territory and kept waiting. V. Meanwhile, Bangladesh Rifle got information about this and came near the house. Constable Yashpal having seen the Bangladesh Rifle shouted at Constable Pradeep Phukan and ran back to Indian territory. Constable Pradeep Phukan fired towards approaching BDR men and thereafter ran towards Indian territory whereas Constble Yashpal managed to come back safely. Meanwhile, Constable Phukan got trapped by BDR men and was shot at while in BD territory. Thereafter, Bangladesh Rifle personnel took Constable Pradeep Phukan to their post and informed their Head Quarters from where the matter wad directly conveyed to DG B.S.F. over telephone. VI. Constable Yashpal, Constable Subhash singh and Constable Paras Singh ran towards Observation Post point and did not bother to take any action against the BDR men and also to save Constable Pradeep Phukan. VII. An SCOI was ordered vide SHQ B.S.F. Shillong Order No. DIG/LAW/1031/10/(5)/98/02/326/33 dated 14 th September 1998. The court had blamed Constable Paras Singh, Constable Yashpal and Constable Subhash Singh and recommended disciplinary action against them which was further approved by the DIG, B.S.F. Shillong and I.G., B.S.F., AMM&N Ftr Shillong. VIII. All these three persons were attached with 81 Bn B.S.F. For discipliary purpose and Record of evidence (ROE) was conducted by Shri Pankaj Gommer, 2 IC, 81 Bn, B.S.F. vide 81 Bn B.S.F. order No. 81/Estt/Nokchi/Disc(10)/98/11351 54 dated 05.10.1998 and subsequently tried by Summary Security Force Court (SSFC) chaired by Commandant 81 Bn B.S.F. and subsequently they were dismissed from service. The petitioner, Constable Paras Singh was dismissed from service on 17 June 1999.
(3.) I have heard Mr. V. Shivnath, Sr. Advocate, assisted by Nawin Kr. Singh and Ashok Kr. Sinha, Advocates appearing for the petitioner and Mr. Mokhtar Khan, C.G.C. appearing for the respondents and have carefully perused the record.;