SURINDER PAL SHARMA Vs. DIRECTOR GENERAL BSF, NEW DELHI

JUDGEMENT

(1.) PETITIONER , who was holding the post of Upper Division Clerk in 20 Bn. B.S.F. was convicted by General Security Force Court (for short hereinafter called the Court) constituted under the provisions of B.S.F. Act, 1968(hereinafter called the Act)& was sentenced on conviction to dismissal from service by order promulgated by respondent No. 3 on Juna 7,1980. The court was held at Udhampur on March 10,1980. The confirmation of the sentence of dismissal was made by the Confirming Authority Respondent No; 2. On filing of post confirmation petition, the respondent No; 1 dismissed the same and communicated the rejection to the petitioner vide letter No; 3/154/79 -CLO/BSF dated November 12,1930. The petitioner being aggrieved against the order of his dismissal on conviction filed this petition and prayed for the issuance of a writ of certiorari to quash the order of conviction and sentence of dismissal imposed on the petitioner and further by a writ of mandamus prayed that on quashing of the order of dismissal, the petitioner be treated on duty with all monetary benefits and status through -out.

(2.) IT is stated that the petitioner, who was initially appointed as Civilian Clerk in 24 Bn B.S.F. on April 29,1966 was promoted as Upper Division Clerk on August 20,1970 & posted in 20 Bn B.S.F. Gurdaspur. He remained in 20 Bn B.S.F. till August 17,1975 on different posts as per details given below: -

(3.) IN terms of sections 117 and 113 of the Act read with Rule 169, it is stated that a convict has been given two opportunities to challenge the findings of G.S.F.C; one before the confirmation of the sentence and the other after its confirmation. It is also alleged that in respect of mis -appropriation of Rs. 14,400/ -a COI was held in 1977, out of which the amount said to have been abetted in misappropriation by the petitioner, the enquiry was closed and the petitioner was not held guilty therein. Later on another COI was conducted in 1978, petitioner made a written request to respondent No; 3 vide his letter No: SPS/62/7B/P -160 dated October 19,1979 for the supply of the copy of the proceedings of COI conducted in 977, in which the petitioner had been exonerated, but the same was not supplied to him before conducting another enquiry. This has prejudiced the case of the petitioner as much as that he could not confront the witnesses in recording of evidence (R.O.E) with their statements made earlier. It is also pointed out that the main culprit in the case of misappropriation was convict H.C Man Singh who fraudulently removed the kutcha receipts from the record of the amount of Rs. 6800/ - and Rs. 1556/ -. The petitioner was not offered any opportunity to cross -examine the witnesses on the basis of the register and the record of the relevant dates in the office, by which he could clearly point out that he had no concern with either the amount misappropriated nor could be charged under any circumstance for the abettment thereof. It is also submitted that the petitioner was not given the defending officer of his choice, as such the provisions of Article 22 of the constitution have been violated.