IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 WP(C).No. 27665 of 2003(R) --------------------------------------- PETITIONER(S): ------------------------ K.BABU, CONSTABLE NO.9300994, 56, BATALLION, BORDER SECURITY FORCE, RESIDING AT KAIPURATH HOUSE, AZHIKKAKOM, KUMBALANGAL P.O., COCHIN - 7. BY ADV.MR.BALAKRISHNAN GOPINATH RESPONDENT(S): ------------------------ 1. A.K.SINGH, ASST.COMMANDER, 56, BATTALLION, BORDER SECURITY FORCE, C/O 56 A.P.O. 2. THE COMMANDANT, THQ 171 BATTALLION, BORDER SECURITY FORCE, C/O. 56 C.P.O. 3. HARDEEP SINGH,COMMANDANT, 56, BATTALLION BORDER SECUTIRY FORCE, C/O 56 A.P.O. 4. THE DEPUTY DIRECTOR GENERAL BORDER SECURITY FORCE, SHQ, ISDI, SRINAGAR. 5. THE DIRECTOR GENERAL, BORDER SECURITY FORCE, ID, CGO COMPLEX, LODHI ROAD, NEW DELHI - 110 003. 6. UNION OF INDIA, REP.BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI-110 001. R1 TO R6 BY MR.T.P.M.IBRAHIMKHAN, ASST. SOLICITOR GENERAL R1 TO R6 BY ADVS.MR.N.M.JAMES, ADDL.CGSC MR.S.R.AJITH, ADDL.CGSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.27665/2003 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE COMPLAINT DTD. 7.8.02 FORWARDED FROM THE PETITIONER'S BATTALLION TO THE COMMANDANT OF 171 BATALLION BSF. P2:- COPY OF THE ORDER OF THE 2ND RESPONDENT APPOINTING ONE SRI.GURUDAYAL SINGH, DEPUTY COMMANDANT AS THE ENQUIRY OFFICER OF THE CASE DTD. 17.8.02. P3 SERIES:- COPY OF THE RECORD OF THE ENQUIRY PROCEEDINGS DTD. 27.8.02 SUPPLIED TO THE PETITIONER. P4:- COPY OF THE LETTER DTD. 14.9.02 ISSUED BY THE 2ND RESPONDENT. P5;- COPY OF THE ORDER DTD. 17.9.02 PLACING THE PETITIONER UNDER OPEN ARREST W.E.F. 18.9.02. P6:- COPY OF THE CHARGE SHEET DTD. 14.9.02 ISSUED TO THE PETITIONER. P7:- COPY OF THE TRUE COPY OF TH LETTER DTD. 17.9.02 ISSUED TO THE PETITIONER. P8:- COPY OF THE DISMISSAL ORDER DTD. 18.9.02 ISSUED TO THE PETITIONER. P9:- COPY OF THE TELEGRAMISSUED TO ALL BATALLION BY THE 2ND RESPONDENT. P10:- COPY OF THE APPEAL PREFERRED BY THE PETITIONER DTD. 26TH NOVEMBER , 2002. P11:- COPY OF THE EXTRACT OF SUPREME COURT DECISION IN 2001(2) UPLBEC 1275. P12:- COPY OF THE JUDGMENT IN OP. NO.9968/03 OF THIS HONOURABLE COURT. P13:- COPY OF THE ORDER DTD. 8.5.03 ISSUED BY THE 5TH RESPONDENT. RESPONDENT'S EXHIBITS R4(a):- COPY OF THE APPLICATION DTD. 7.3.02 OF THE PETITIONER. R4(b):- COPY OF THE WARRANT NO.000022 DTD. 20.3.02 ISSUED TO THE PETITIONER. R4(c):- COPY OF THE RETURN RAILWAY WARRANT WITH COUNTERFOIL BEARING NO.000023 DTD. 20.3.02 ISSUED TO THE PETITIONER. R4(d):- COPY OF THE REQUEST OF THE PETITIONER. TRUE COPY P.S. TO JUDGE tss ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.27665 OF 2003 (R) -------------------------------------------------- Dated this the 19th day of November, 2009 J U D G M E N T Petitioner was a Constable in the Border Security Force, having No.9300994 and was working in the 56th Battalion of the BSF, C/o.56, APO. In May, 2002, he was granted 45 days leave. After the expiry of the leave petitioner rejoined only on 3.6.2002, although which he ought to have reported for duty on 27.5.2002. Petitioner was proceeded against for an offence under Section 19 (b) of the BSF Act and Rule of 1968. Finally, on 18.7.2002, he was awarded a sentence of 7 days rigorous imprisonment in forced custody. 2. Petitioner submits that he was aggrieved by the harsh sentence imposed and therefore on the spur of the moment he told the superior Officer that “Mein Aapko Dekhloonga.” He was again charged for committing an offence under Section 20(b) of the BSF Act and Rules alleging that he used threatening language to his superior officer. Ext.P1 is the complaint. An Enquiry Officer was appointed and Ext.P3 is the report of Enquiry Officer. It is seen that he was also allowed to be defended by any WPC .No.27665/2003 :2 : officer. Finally, the Summary Security Force Court assembled on 18.9.2002 and after trying the petitioner summarily passed the order of dismissal from service with effect from the afternoon of 18.9.2002. 3. Petitioner filed Ext.P10 appeal before the 4th respondent and pursuant to the directions of this court in Ext.P12 judgment rendered in O.P.No.9968/03, the 3rd respondent passed Ext.P13 order conveying that the 4th respondent has rejected the appeal. This order is dated 8.5.2003 and it is challenging Exts.P8 and P13 order this writ Petition is filed. 4. Although, the respondents have sought to justify the dismissal of the petitioner contending that the petitioner was a habitual offender and that he committed serious offence by abusing his superior officer, I do not think it is necessary for this court to examine the contentions raised by either of the parties on the merits of the controversy. As already stated, it was by Ext.P13 order that the petitioner's appeal was rejected, the relevant portion of which reads as under; “The issues raised in your petition have been considered very carefully in the light of relevant records, legal provisions and evidence in SSFC trial proceedings. After a detailed consideration and careful scrutiny of all facts and circumstances of the case, the DG BSF has rejected your Petition being devoid of merit. “ WPC .No.27665/2003 :3 : 5. Apart from Ext.P13, proceedings of the 4th respondent , where the 4th respondent is alleged to have considered the fact and circumstances has not been communicated to the petitioner. Therefore, as far as the petitioner is concerned, Ext.P13 is the order rejecting the appeal. A reading of the aforesaid order passed by the 3rd respondent shows that none of the contentions urged by the petitioner in the appeal have been dealt with in Ext.P13. Therefore, I am constrained to hold that a due consideration of the issues is not reflected in Ext.P13. Therefore, Ext.P13 is bad for non-application of mind and for that reason I set aside Ext.P13. The 4th respondent, the appellate authority, is directed to reconsider Ext.P10 appeal filed by the petitioner against Ext.P8 order dismissing him from service. This the 4th respondent shall do as expeditiously as possible and at any rate within 3 months from the date of receipt of a copy of the judgment. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/