IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JULY 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN WRIT PETITION NO. 27048 OF 2017 (S-RES) BETWEEN:
SRI. MANJUNATHA S. S/O SRI SHANMUKHA S AGED ABOUT 36 YEARS WORKING AS GENERAL DUTY CONSTABLE (REG NO.02164650) BORDER SECURITY FORCE NEW COOCHBEHAR (SONARI CAMP) WEST BENGAL (NOW DISMISSED FROM SERVICE) AND RESIDING AT “MUNISWAMY NILAYA”
J C NAGAR, 2ND CROSS TEMPO STAND DOWN N T ROAD, SHIVAMOGGA KARNATAKA-577 202.
... PETITIONER (BY SRI. M. SHIVAPRAKASH, ADV.) AND:
1. THE UNION OF INDIA MINISTRY OF HOME AFFAIRS REP BY ITS SECRETARY DTE GEN BORDER SECURITY FORCE (LAW BRANCH), BLOCK NO.10 2ND FLOOR, CGO COMPLEX LODHI ROAD NEW DELHI-110 003.
2. THE UNION OF INDIA MINISTRY OF HOME AFFAIRS DIRECTORATE GENERAL BORDER SECURITY FORCE (DISC AND LIT BRANCH) CGO COMPLEX, LODHI ROAD NEW DELHI-110 003.
3. THE COMMANDANT HEAD QUARTER, 181 BATTALION BORDER SECURITY FORCE SONARI, COOCH BEHAR WEST BENGAL-736 102.
... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS PERTAINING TO THE CASE; SET ASIDE THE ORDERS DATED 25.9.2014 PASSED BY THE R-3 MARKED AT ANNEXURE-E AND ORDER DATED 22.1.2015 PASSED BY THE R-2 MARKED AT ANNEXURE-H AS THE SAME ARE ILLEGAL, UNJUST AND GRANTING REINSTATEMENT WITH FULL BACK-WAGES, CONTINUITY OF SERVICE, AND OTHER CONSEQUENTIAL BENEFITS; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner has challenged the legality of the order dated 03-07-2014 passed by the Commandant, 181-Bn BSF, whereby the petitioner was dismissed from service. The petitioner has also challenged the order dated 22-01-2015 passed by the Director General, BSF, whereby the Director General has dismissed the appeal filed by the petitioner and upheld the order dated 03-07-2014.
2. Briefly the facts of the case are that, on 05-02-2002, the petitioner joined the BSF as a General Duty Constable. He completed his training in Punjab. From 2002 to 2014, he had served the BSF, in different parts of the country. However, on 24-06-2014, the petitioner was furnished with a charge-sheet and three charges were leveled against him: firstly, the petitioner slapped Mr. Madan Lal, ASI (GD) on the face; secondly, he used threatening and abusive language against his superior officer; thirdly, he was using insubordinate language with his superior officers. The petitioner denied the said charges. Consequently, the matter was referred to Summary Security Force Court, (‘SSFC’, for short), for conducting an enquiry. After completion of the proceedings, the enquiry officer held that charge Nos. 1 and 2 were proved, but there was not sufficient evidence to prove charge No.3. Since the first two charges were proved against the petitioner, by order dated 03-07-2014, the petitioner was dismissed from service. Thereafter, the petitioner filed an appeal. However, by order dated 22-01-2015, the Appellate Authority has dismissed the appeal, and has upheld the dismissal order dated 03-07-2014. Hence this petition before this Court.
3. Mr. M. Shivaprakash, the learned counsel for the petitioner, has vehemently contended that despite the fact that the petitioner had requested for certain documents to be supplied, the same were not given to him. Therefore, the petitioner’s right under the principles of natural justice, have been violated by the respondent. Secondly, no opportunity of hearing was given to him by the Appellate Authority. Therefore, the order passed by the Appellate Authority, dated 22-01-2015, deserves to be set aside.
4. Heard the learned counsel and perused the impugned orders.
5. The contentions raised by the learned counsel are clearly untenable. For, by letter dated 23-09-2014, the petitioner had sought “copies of all the documents and recorded CD, in order to challenge the dismissal order passed on 03-07-2014”. The said letter was duly replied by letter, dated 09-10-2014, issued by the Deputy Commandant (Law), for Chief Law Officer, wherein the Deputy Commandant had clearly stated that “in reply to the application dated 23-09-2014, the duplicate copy of the SSFC trial proceedings containing pages 1 to 119 are being sent to the petitioner”. Subsequent to the letter dated 09-10-2014, the petitioner has not filed any other application seeking for any other document from the respondent. Thus, by letter dated 09-10-2014, the documents asked by the petitioner were duly furnished to him. Hence, the first contention raised by the learned counsel that the documents required by the petitioner were not given to him, is clearly unsustainable.
6. As far as giving an opportunity of hearing is concerned, the order dated 22-01-2015 clearly states that such an opportunity was given. It is only after discussing the entire evidence that the order dated 22-01-2015, has been passed.
7. As a last resort, the learned counsel has also pleaded that three of the witnesses had not supported the case of the Department. Therefore, the Appellate Authority should have relied on their evidence, as well. However, even this contention is misplaced. Once Mr. Madanlal, the person who was allegedly slapped by the petitioner, was examined as PW-3, once the said witness has clearly described the incident, ample evidence does exist for proving that charge Nos.1 and 2 against the petitioner. Moreover, the testimony of Mr. Madanlal, ASI, was supported by Mr. Raj Kumar (PW-5), Mr. Y. Achouba Singh (PW-7), and Mr. B. R. Bishnoi (PW-10). Thus, the testimony of a star witness, was further corroborated by the testimony of others. Therefore, even if a few witnesses have not supported the case of the Department, nonetheless, there is sufficient evidence to show that the petitioner had not only slapped Mr. Madanlal on the face, but had also used abusive language towards him. Hence there is ample evidence to prove that the petitioner had committed the alleged misconduct. Thus, both the enquiry officer and the Appellate Authority were justified in holding that the petitioner was guilty of the alleged misconduct.
8. Undoubtedly, discipline is the backbone of the BSF, a para-military force. Thus, there is no scope of permitting any employee of the BSF to break the discipline of the force. Since ample evidence does exist that the petitioner had not only slapped Mr. Madanlal, but had also verbally abused by calling him names, obviously the discipline of the force had been broken. Therefore, the punishment meted out to the petitioner, cannot be said to be shockingly disproportionate to the alleged misconduct.
For the reasons stated above, this Court does not find any merit in the present writ petition. It is hereby dismissed.
Sd/- Judge Rd/-