Daya Shanker Rai v. Union of India & Ors

DEEPA SHARMA, J

S. RAVINDRA BHAT, J

AUGUST 19, 2015 sapna

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + % Decided on: 19.08.2015 DAYA SHANKER RAI ..... Petitioner Through: Mrs Rekha Palli, Sr. Adv. with Ms Ankita Patnaik and Mrs Garima Sachdeva, Advs. versus UNION OF INDIA & ORS ..... Respondents Through: Mr Ruchir Mishra and Mr Mukesh Kumar Tiwari, Advs. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA MS. JUSTICE DEEPA SHARMA (OPEN COURT) 1. The petitioner has challenged the order of dismissal from service vide the present writ petition and has prayed for the reinstatement in the service. 2. The petitioner was enrolled as Constable (GD) on 16.02.1991. In the year 1999, he was transferred from 18 Bn to 44 Bn and was deployed at 'Border Outpost'(BOP) Pipli in a company. This company was headed by Post Commander HC S.N. Singh and was comprising of 09 Constables. On 19.02.2000, he was detailed for O.P. duty at O.P. No. 3 Page 2 from 0600 hrs to 1800 hrs and then from 2200 hrs to 2300 hrs on sentry duty. 3. A complaint was made by HC S.N. Singh to the Commandant reporting that the petitioner was missing from his duty and when the enquiries were made from him, he hit him with his rifle on his left shoulder and also on his eye, ear and hand and that it was Constable Mohinder Singh, who, on reaching there, caught hold of the petitioner and that Constable Partibhan also reached there and took him (HC S.N. Singh) to living barrack and made him to lie down on bed. He was medically examined. It was found that HC S.N. Singh had suffered following injuries:- (i) Ecchymosis around Lt Eye. (ii) Abrasions on pinaa of Lt ear and contusion over preauricular region. (iii) Collulitis over Lt scapular region with undisplaced fracture of the middle part of the spine of left scapula. 4. The petitioner was heard on this complaint by the Commandant under Rule 45 of the BSF Rules and thereafter the Commandant ordered for Record of Evidence (RoE). The Record of Evidence proceedings were drawn regarding the whole episode. The petitioner had duly participated in RoE and cross examined the witnesses. However, he did not produce any defence witness in support of his statement despite the opportunity being given to him. The statements of 7 prosecution witnesses were recorded. Since the prima facie case was made out against the petitioner, the competent authority Commandant decided to try the petitioner by Summary Security Force Court (SSFC). The Page 3 petitioner was accordingly issued the charge sheet of the following charge:- "BSF ACT SECTION -20(a) USING CRIMINAL FORCE TO HIS SUPERIOR OFFICER In that he, having been deployed at BOP Pipli on 19.2.2000 at about 2215 hrs while performing sentry duty of BOP used criminal force to No. 75002627 HC Shiv Narayn Singh BOP Comdr by assaulting him with his personal rifle butt No. 483 body No. G-2609 resulting which HC Shiv Narayan Singh suffered injuries in his eye head and left shoulder". 5. The proceedings of SSFC were held on 05.04.2000 by the Commandant 44 Bn. During the proceedings, the petitioner had pleaded guilty in writing and pleaded for mercy. Thereafter, the order of dismissal from service by way of penalty was passed on 05.04.2000. The petitioner submitted his appeal which was decided by DG BSF on 12.01.2001 and the decision was conveyed to the petitioner vide letter dated 13.02.2001. The petitioner had filed a writ petition no. 21591 of 2001 in Allahabad High Court which was dismissed vide order dated 08.03.2013 for want of territorial jurisdiction. 6. The contention of the petitioner is that Post-Commander HC S.N. Singh was harassing him as due to his presence he was unable to indulge in illegal activities, including smuggling. In order to harass him he always used to assign him extra duties as compared to other constables and whenever he had protested, he was threatened. On the date of incident also, he was made to perform duties for 15 hrs which was contrary to the Page 4 established practices. He had also used to give und