Md. Abdul Salam Ghorami vs Deputy Inspector General, Bsf and Others

Ashim Kumar Banerjee, J.—Writ petitioner was a constable working in Border Security Force (hereinafter referred to as BSF). The writ petitioner was charge sheeted on the following three charges :

Charge - I

BSF Act 1968 u/s 40

AN OMISSION PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE

in that he.

on 8/9/96 at about 1000 hrs. while deployed at BOR Haridaspur, he wrongfully, staled that he had Rs. 1000/- with him, whereas on his personal search Rs. 1600/- recovered.

Charg-II

BSF Act, 1986

UNDER SECTION 22(e)

NEGLECTING TO OBEY A GENERAL ORDER

in that he,

while at BOP Haridaspur on 8/9/96 at about 1000 hrs when checked by Shri Y.P. Singh, DC Coy Comdr., was found in possession of amount more than Rs. 500/- which is a contravention of general order issued by Bn. HQ on 18/10/95 vide I./No. CB/055/92/95/985 dated 20/10/95.

Charge-III

BSF Act, 1986

UNDER SECTION 40

AN OMISSION PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE

in that he,

at Haridaspur BOP on 8/6/96 at 1000 hrs. when checked by Coy Comdr Shri Y.P. Singh, DC was found in possession of 02 nos. Rs. 500/- notes which was not disbursed to him during the period from 01 January 1996 to 01 September 1996.

In reply to the charge the writ petitioner gave a justification to the extent of that the excess money was his savings out of his salary which he was taking to his native place for handing over the same to his family members. The writ petitioner was tried by Summery Security Force Court and he was awarded punishment of dismissal from service. The order of dismissal has been impugned before me on the following grounds:

(i) There had been violation of Rule 49(3) of the Border Security Rules by recording the statement of the writ petitioner on the same day.

(ii) There had been no compliance under Rule 52 of the Border Security Force Rules;

(iii) No consultation was made by the Commandant in terms of Rule 59 of the Border Security Force Rules;

(iv) No Prosecuting Officer was appointed under 62(g) of the said Rules;

(v) No examination of witness was made in violation of Rule 146;

(vi) There had been violation under Rule 149 with regard to the finding on every charge;

(vii) There had been violation of Rule 157(1) read with Rule 122(3) with regard to appointment of friend of the accused.

With regard to the first issue that there had been violation of Rule 49(3) the respondents in their Affidavit-in-Opposition categorically denied such allegation. However, in my view, the fact of finding excess amount in his possession was an admitted fact. Hence such contention of the petitioner is not at all relevant herein.

However on the question of constitution of court I find there were some irregularity., From the order dated 31st March, 1997 appearing at page. 32 of the writ petition it appears that the Commandant in terms of Rule 62 issued a convening order. It was contended by the petitioner that a separate charge sheet should have been issued upon the petitioner before proceeding against the writ petitioner before the Summary Court.

It was contended by the petitioner that the relevant rules applicable herein were not followed while conducting the said proceedings.

I have perused the relevant documents annexed to the pleadings. I have also perused the order of dismissal. It might be true that there were some irregularities in conducting the said Summary Court Under Rule 62(b) when the said Summary Court was properly convened the separate charge sheet should have been given to the petitioner if the Commandant was of the opinion that the same was relevant in accordance with 62(c) of the said Rules. In my view, what is more important, is to find out whether the main principle with regard to the disciplinary procedings had been followed in the instant case or not i.e. whether the writ petitioner was afforded adequate opportunity to defend himself in the proceedings. The fact that the writ petitioner was found with excess money in his possession disproportionate to his income was an admitted fact. Writ petitioner offered an explanation which was not found justifiable by the disciplinary authority. I have examined the explanation given by the writ petitioner and I do not find any reason to interfere with the decision of the disciplinary authority on that score. Mere irregularity in conducting the proceedings by itself can not vitiate the entire proceedings or the result thereof. In my view, so long it does not affect the fundamental principle of Audi alterm partem the order of disciplinary authority can not be assailed on that ground alone. At the time of hearing the learned counsel appearing for the petitioner tried to highlight the irregularities in conducting the said proceeding. However, he could not impress upon me how it had caused prejudice to the writ petitioner.

Writ petitioner was a member of a disciplined force and he was bound to offer unimpeachable evidence for justification of his conduct, he could not do so. Hence his further continuance in this Force would cause immense prejudice to the Force.

Writ petition thus fails and is hereby dismissed. There would be no order as to costs.

Urgent xerox certified copy will be given to the parties, if applied for.