The petitioner had initially challenged the order dated 24.8.2005 by which he was dismissed, but subsequently the order of punishment has been modified vide order dated 7.11.2005
The argument which has been advanced on behalf of the petitioner is that on the basis of the finding given by the Summary Security Force Court, the order of punishment has been passed.
It has further been submitted that from perusal of both the impugned orders, there is no reference of any finding and, as such, the authority has not applied its mind and order has been passed in this regard.
Learned counsel for the petitioner has drawn the attention towards the provision as contained in Section-114 of the Border Security Force Act, 1968 which speaks as follows:-
“114. Finding and sentence of a Summary Security Force Court.-- (1) Save as otherwise provided in sub-section (2), the finding and sentence of a Summary Security Force Court shall not require to be confirmed, but may be carried out forthwith.
(2) If the officer holding the trial is of the rank of Superintendent of Police or of a rank declared under clause (a) of sub-section (5) of Section 74 as equivalent thereto or of a lower rank has held such rank for less than five years, he shall not, except on active duty, carry into effect any sentence, until it has received the approval of an officer not below the rank of Deputy Inspector General.”
From perusal of the said provision, it is apparent that only after finding an order of sentence may be passed by the Summary Security Force Court. Thus, it has been submitted that if the impugned order is perused, there is no finding of Summary Security Force Court.
Counsel for the respondents is also not in a position to clarify the position since nothing has been stated in the counter affidavit, however he has submitted that he has already written a letter to the authorities of the Border Security Force for seeking further clarification, but no response has been given.
The further submission of learned counsel for the petitioner is that entire proceeding is without any jurisdiction in view of the provision as contained in Rule-47 of the Border Security Force Rules, 1969 which bar the proceeding for inflicting punishment alleged to have been committed under Section 20(a) of the Border Security Force Act.
In view thereof, the counsel for the respondents-Union of India is directed to produce copy of the entire proceeding of the Summary Security Force Court within two weeks.
Post this case after three weeks under the same heading.
Let a copy of this order be handed over to learned counsel for the respondents.