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No.87250608 Head Constable, Raj Kumar v/s Commandant 125 Battalion Border Security Forces

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    W.P. No. 10263(W) of 2015

    Decided On, 11 January 2017

    At, High Court of Judicature at Calcutta


    For the Petitioner: Sarder Amzad Ali, Suchitra Roy, Advocate. For the Respondent: Tapas Kumar Chatterjee, Advocate

Judgment Text

I am distressed at the way this departmental proceeding has been conducted. If alleged misconduct by the employees of the Border Security Force is dealt with in this manner, no member of the Force will have any faith in his superior. They will lose their morale.

2. One incident occurred in the night intervening between 3 and 4th May, 2008. The writ petitioners were doing their duty at a border outpost in Bamnabad in district Murshidabad; in West Bengal. One Dwijen Mondal along with three heads of cattle were apprehended by them. A little before 1 p.m. on 4th May 2008 Dwijen Mondal died. According to the writ petitioners he fell unconscious at about 10 a.m. and thereafter died. Dwijen 's wife Sulekha Mondal lodged a First Information Report with the Police at about 5 p.m. on the same day giving a different version. According to her Dwijen Mondal was fishing in the river Padma at 4.30 a.m. that morning. He was severely beaten by the Force personnel as a result of which he died at about 10.30 a.m. that very day.

3. This Court does not know how Dwijen Mondal died or who was responsible for his death. The procedure followed in this departmental proceeding is far from acceptable.

4. The General Security Force Court after admission of substantial evidence and consideration of the same came to the conclusion on 22nd June, 2011 that each of the writ petitioners was not guilty. This was a finding under section 107 of the Border Security Force Act, 1968. Section 113 of the said Act provides that any finding or sentence of a Security Force Court which requires confirmation may on the order of the confirming authority be once revised.

5. The above finding was upheld by the Revisional authority on 5th June, 2012.

6. A finding of the Security Force Court requires confirmation under Section 107. Section 108 provides for confirmation of the finding of the General Security Force Court by the Central Government through any Officer empowered in this behalf by warrant of the Central Government.

7. Section 107 lays down that no finding or sentence of a General Security Force Court shall be valid except sofar as it may be confirmed as provided by this Act. The use of the words "so-far as it may be confirmed" by the Act suggests that the confirming authority has wide powers to accept the whole or part of the finding or to remand the matter to the lower authority or make its own finding.

8. In this case the matter was referred to the Additional Director General (East),HQ Spl. DG(East), BSF, Kolkata. It rules as follows on 1st March, 2013.

"I do not confirm the findings of the GSFC on the charge, it being against the weight of evidence. I am satisfied that further trial of the accused persons is in expedient or impracticable and a fresh trial for the said offence by another Security Force Court is not permissible and of the opinion that on account of the misconduct as per available evidence on record, further retention of the accused persons in service is undesirable and detrimental to Force discipline and hence I direct Commandant of the accused persons to take necessary action to terminate their services administratively after observing due procedure prescribed under Sec-11 of the BSF Act, 1968 read with Rule 22(2) of BSF Rules, 1969."

9. Now, if the confirming authority did not accept the order of the lower authority it was open to it to make a determination itself regarding guilt or to remand the matter to an appropriate lower authority. It chose neither of the two courses. It ruled that further trial of the accused persons was inexpedient or impracticable. Thus, it made it clear that it was rejecting the finding of the subordinate authority and trying to pass its own verdict without any trial. Without giving an opportunity of hearing to the writ petitioners it came to the conclusion that the writ petitioners were guilty of misconduct and that they should not be retained in service. The Commandant was directed to terminate the service of the writ petitioners.

10. This kind of an order reminds this Court of medieval times when the rulers were used to ruling by issuing edicts and diktats. Nobody had any right, against them. There was gross subversion of the process of law, in this case.

11. The order dated 1st March, 2013 is set aside. The matter is referred to the Central Government so that a

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nother confirming authority is appointed to deal with this case in accordance with law. When such officer is appointed the file may be placed before him to pass necessary orders in terms of Section 107 of the said Act in accordance with the rule of law. 12. All show cause notices are quashed. 13. This writ application is allowed to the above extent. 14. Urgent certified photocopy of this order, if applied for, be supplied to the parties on priority basis.