Pranab Kumar Chattopadhyay, J.@mdashThis appeal has been preferred at the instance of the writ petitioner-appellant assailing the judgment and
order dated 12th March, 2008 passed by a learned Judge of this Court whereby the said learned Judge dismissed the writ petition on merits.
2. From the records, we find that the appellant herein at the relevant time was serving in the Border Security Force as ''Constable'' and was posted
at 136 Battalion of Border Security Force at Roshanbagh in the district of Murshidabad, West Bengal. We also find from the records that the
appellant herein was on duty along with other two constables namely Sri M. Munnaswamy and Sri Roshan Kumar Singh at Indo-Bangladesh
Border on 24th July, 2005.
3. It is the ease of the appellant-petitioner that while discharging the duties at the said Indo-Bangladesh Border on 24th July, 2005, he found some
miscreants armed with deadly weapons trying to cross over to Bangladesh with smuggled cattle. It has been submitted by the learned Advocate of
the appellant that the said appellant raised alarm and tried to apprehend the miscreants, but the said miscreants fled away leaving a Polythene
packet which contained some cash money. It is the specific case of the appellant that in spite of his best effort, he could not connect the Area
Commandant through Radio Set but after sometime when the Company Commandant came to the spot, the appellant narrated the entire incident
and handed over the Polythene packet to the said Commandant. The Commandant thereafter prepared the seizure memo on 24th July, 2005
showing recovery of an amount of Rs. 13,150/- from the appellant and other two constables namely, Sri M. Munnaswamy and Sri Roshan Kumar
Singh. On the next date i.e. on 25th July, 2005 an order was issued directing the Deputy Commandant of the Unit to prepare record of evidence
against the aforesaid constables including the appellant herein for committing an offence u/s 46 of the Border Security Force Act. The record of
evidence was thereafter prepared on 28th July, 2005 and the Commandant of the area by the order dated 30th July, 2005 directed the Deputy
Commandant to prepare an additional record of evidence within 31st July, 2005. The Commandant subsequently by an order dated 1st August,
2005 forwarded the chargesheet, copies of records of evidence as well as additional records of evidence to the appellant herein informing him
about the commencement of the trial in Summary Security Force Court on 2nd August, 2005. The appellant and the aforesaid two other
constables were arrested on 2nd August, 2005 and tried by the Summary Security Force Court on 2nd August, 2005. The final order of
punishment was thereafter issued by the Commandant on 4th August, 2005 holding the appellant guilty of the charges and the Court sentenced him
to suffer rigorous imprisonment for one year Civil Prison and also directed his dismissal from service. An appeal was preferred u/s 117 of the
Border Security Force Act before the Appellate Authority which was however, not disposed of for a considerable period. After a specific order
was passed by this Court in another writ petition being W.P. No. 2636 (W) of 2006, the said appeal was ultimately disposed of by the Appellate
Authority namely, the Director General of Border Security Force on 25th April, 2006 whereby the said Appellate Authority rejected the appeal
filed by the wife of the appellant herein.
4. Challenging the final order of punishment which was ultimately affirmed by the Appellate Authority, a writ petition was filed by the appellant
herein which was finally disposed of by the judgment and order under appeal passed by the learned Single Judge on 12th March, 2008. The
appellant, however, already suffered the imprisonment in the meantime pursuant to the said order of punishment passed by the Summary Security
Force Court.
5. The learned Advocate for the appellant submits that the proceedings initiated against the appellant herein were conducted in clear violation of the
mandatory provisions of the Border Security Force Act 1968 and the Rules framed thereunder. Learned Counsel of the appellant specifically
submits that the appellant was held guilty and punishment was imposed on him in absence of adequate evidence. Learned Counsel of the appellant
also submits that the Authorities concerned proceeded against the appellant from the very inception not only in clear violation of the provisions of
the Border Security Force Act and the Rules framed thereunder but also did not comply with the principles of natural justice and procedural justice
by not giving adequate opportunity to the appellant to cross-examine the vital witness.
6. Mr. Debdatta Basu, learned Advocate of the appellant submits that the respondents-authorities did not even comply with the mandatory
provisions of Border Security Force Rules by not attaching the explanatory memorandum in compliance with Rule 158. The said Rule 158 is set
out hereunder:
58. Memorandum to be attached to proceedings.-- Where a Summary Security Force Court tries an offence which shall not ordinarily be tried
without reference to an authority mentioned in sub-section (2) of section 74, an explanatory memorandum shall be attached to the proceedings.
7. In view of the aforesaid provision of Rule 158 when a Summary Security Force Court tries an offence an explanatory memorandum has to be
attached to the proceedings.
8. Learned Counsel representing the respondent-Border Security Force Authority fairly admits that the explanatory memorandum was not
attached to the proceedings. Thus the respondent Authority failed to comply with the mandatory requirement under the Rules. When Rule provides
something has to be done in a particular manner then the same has to be done in the same manner and no other procedure or manner can be
followed or adopted.
9. Furthermore, it is not in dispute that the informant was admittedly not examined as witness, as a result whereof the appellant herein being one of
the accused persons was denied opportunity to cross-examine the vital witness. Learned Single Judge although held that the accused person,
namely the appellant herein did not suffer any prejudice on account of denial of the opportunity to cross-examine the informant, the same are not
acceptable as the informant was a vital witness to the incident and the accused person being the appellant was deprived of the opportunity to
cross-examine a vital witness like the informant since the respondent Authority decided not to examine the said informant as witness.
10. From the aforesaid discussions, it appears that the appellant was tried in the Summary Security Force Court in clear violation of the provisions
of the Rule 158 as the explanatory memorandum was not attached to the proceedings which was a mandatory requirement under the Rules.
Furthermore, a vital witness like the informant was not examined in course of trial of the appellant in the Summary Security Force Court only to
deny opportunity to the accused persons including the appellant herein to cross-examine a vital witness.
11. For the aforesaid illegalities and/or irregularities, we are of the opinion that the impugned order of punishment cannot be sustained in the eye of
law and, therefore, we quash the impugned order of punishment inflicted on the appellant herein on 4th August, 2005 which was subsequently
affirmed by the appellate authority namely, Director General of Border Security Force on 25th April, 2006.
12. For the identical reasons, the impugned judgment and order under appeal passed by the learned Single Judge is also set aside.
13. This appeal therefore, stands allowed.
14. Since we have quashed the order of punishment issued against the appellant, the respondents are directed to reinstate the appellant in service
forthwith and pay him all admissible salaries and allowances from the date of joining the duties. In view of quashing of the order of punishment, the
appellant herein should be treated as ''on duty'' all through without payment of any back wages since the appellant herein was kept out of service
pursuant to the order of punishment passed by the Summary Security Force Court which was subsequently approved by the appellate authority
and affirmed by the learned Single Judge although the said order of punishment has been quashed today by us while allowing the appeal. The
respondents are also directed to regularise the period during which the appellant could not perform the duties due to the pendency of the
proceeding before the Summary Security Force Court and pursuant to the impugned order of punishment, by granting him extraordinary leave.
15. In the facts and circumstances of the present case, there will however, be no order as to costs.
16. After pronouncement of the judgment, the learned Advocate of the respondent-Border Security Force Authority prays for stay of the
operation of the aforesaid judgment and order.
17. We however, do not find any reason for granting any such stay. Therefore, the prayer for stay is refused.
18. Xerox certified copy of the order, if applied for, be given to the parties at an early date.