Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH MONDAY, THE 6TH DAY OF FEBRUARY 2023 / 17TH MAGHA, 1944 WP(C) NO. 1596 OF 2023 PETITIONER
PUSHPARAJAN.C AGED 52 YEARS NO. 902106374 HC (GD) [DISMISSED FROM SERVICE], S/O CHELLAPPAN, AGED 52 YEARS, "G" COY OF 148 BATTALION, BORDER SECURITY FORCE, RANINAGAR, JALPAIGURI, WEST BENGAL, NOW RESIDING AT PADANATHEKKATHIL, THAMMALACKAL SOUTH P.O., KUMARAPURAM, KARTHIKAPALLY TALUK, ALAPPUZHA, KERALA, INDIA, PIN - 690548 BY ADVS. NIRMAL V NAIR MUHAMMED NASEEF BIN SALIM ARATHI PRABHAKARAN DELLA ABRAHAM
RESPONDENTS:
1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, JAI SINGH MARG, HANUMAN ROAD AREA, CONNAUGHT PLACE, NEW DELHI., PIN - 110001 2 THE DIRECTOR GENERAL BORDER SECURITY FORCE, 10 CGO COMPLEX, LODHI ROAD, NEW DELHI., PIN - 110003 3 THE INSPECTOR GENERAL FRONTIER HEADQUARTERS, BSF NORTH BENGAL, KADAMTALA, DARJEELING DISTRICT, WEST BENGAL, PIN - 734013 4 THE COMMANDANT 148 BN BSF, RANINAGAR, JALPAIGURI, WEST BENGAL., PIN - 735101
SRI.S.MANU- DSGI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 6th day of February, 2023
The petitioner states that he is aggrieved by Ext.P4 order
dated 29.03.2022 issued by the 4th respondent-Commandant, 148 Battalion, BSF, Raninagar, Jalpaiguri, West Bengal.
2. The petitioner states that after the disciplinary
proceedings, he has been inflicted with the penalty of dismissal from service as per Ext.P4. Counsel for the petitioner would submit that the petitioner is innocent of the charges levelled against him and he had denied the charges in toto. The findings and conclusions of the disciplinary authority are illegal and arbitrary and those cannot stand the scrutiny of law.
3. Aggrieved by Ext.P4, the petitioner has invoked
Section 117(2) of the Border Security Force Act, 1968 and has preferred Ext.P7 appeal. The petitioner filed Ext.P7 appeal in the month of June, 2022. So far, no orders have been passed thereon.
4. In the meanwhile, the petitioner remains illegally
kept out of service due to unsustainable termination order. The petitioner urged various grounds to point out that the termination order is illegal. The petitioner further submitted that the delay in consideration of Ext.P7 appeal causes undue hardship to the petitioner.
5. Deputy Solicitor General of India entered
appearance on behalf of the respondents and resisted the writ petition. The Deputy Solicitor General of India took up a preliminary objection as regards the maintainability of the writ petition. According to the Deputy Solicitor General of India, the entire cause of action in respect of the matter arose beyond the territorial limits of Kerala and therefore this Court has no jurisdiction. The Deputy Solicitor General of India controverted all the material allegations made by the petitioner in the writ petition.
6. I have heard the learned counsel for the petitioner and the learned Deputy Solicitor General of India representing the respondents.
7. The petitioner was subjected to Summary Security Force Court at Bn HQ 148 Bn BSF, Raninagar, Jalpaiguri (West Bengal) and on finding guilty, was imposed with the penalty of termination of service.
8. The petitioner, thereupon, invoked Section 117(2)
of the Border Security Force Act, 1968 and Rule 167(2) of the Border Security Force Rules, 1969, filing Ext.P7 appeal. Ext.P7 appeal is a statutory appeal. The petitioner is remaining out of service from 29.03.2022.
9. In the circumstances, Ext.P7 being a statutory
appeal, it is incumbent upon the statutory appellate authority to pass appropriate orders thereon as expeditiously as possible. In the circumstances, the writ petition is disposed of directing the competent appellate authority to consider Ext.P7 appeal and pass appropriate orders thereon, in accordance with law, within a period of two months. The question of jurisdiction is left open, in the circumstances of the case. sd/- N.NAGARESH JUDGE hmh APPENDIX OF WP(C) 1596/2023 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE CHARGE SHEET DATED
NIL ISSUED TO THE PETITIONER ON 28-03Exhibit P2 A TRUE COPY OF THE ORDER NO. ESTT/148BN/SSFC/2022/6212-19 DATED 28- 03-2022 ISSUED BY THE 4TH RESPONDENT
Exhibit P3 A TRUE COPY OF THE ORDER NO. ESTT/148BN/SSFC/2022/6220-23 DATED 28- 03-2022 ISSUED BY THE 4TH RESPONDENT Exhibit P4 A TRUE COPY OF THE ORDER NO. ESTT/DISCIPLINE/148 BN/2022/6335 DATED 29-3-2022 ISSUED BY THE 4TH RESPONDENT Exhibit P5 A TRUE COPY OF THE RELEVANT PORTION OF THE PETITIONER'S BANK PASSBOOK Exhibit P6 A TRUE COPY OF THE TRAIN TICKET ISSUED FROM IRCTC.CO.IN IN THE NAME OF THE PETITIONER Exhibit P7 A TRUE COPY OF THE APPEAL SUBMITTED BEFORE THE 3RD RESPONDENT BY THE PETITIONER DATED 27.06.2022 Exhibit P8 A TRUE COPY OF THE POSTAL RECEIPT DATED 29-6-2022 Exhibit P9 A TRUE COPY OF THE EMAIL DATED 29.06.2022 SENT BY THE PETITIONER TO THE 3RD RESPONDENT Exhibit P10 A TRUE COPY OF THE STATEMENT DATED NIL OF PW2 JOBBY THOMAS Exhibit P11 A TRUE COPY OF THE STATEMENT DATED NIL OF PW3 ANAND KUMAR Exhibit P12 A TRUE COPY OF THE STATEMENT DATED NIL GIVEN BY PW1 ASHOK KUMAR Exhibit P13 A TRUE COPY OF THE STATEMENT DATED NIL GIVEN BY PW7 JITHENDRA SINGH KUSHAWAT