Safiya Malik

The Calcutta High Court set aside the dismissal of a Border Security Force (BSF) personnel and substituted it with compulsory retirement. The court examined the facts of the case, the service tenure of the petitioner, and previous judicial precedents on proportionality of punishment. It found that the penalty of removal from service was excessive and directed that the petitioner be granted notional continuity of service until he reached the minimum required period for pension eligibility.

The petitioner, Sankha Dutta, had joined the BSF in 1985 and served as a Lance Naik. In April 2006, he applied for leave due to his mother’s illness and was granted 30 days of earned leave from April 20, 2006, to May 19, 2006. Due to his mother’s continued illness, he applied for an extension of leave for an additional 60 days, followed by another request for two months on medical grounds. The petitioner submitted medical documents issued by Chandannagar Sub-Divisional Hospital to support his request.

The authorities did not approve his leave extension. Instead, an order was issued on August 20, 2006, directing the Superintendent of Police to locate the petitioner. A BSF escort party took him into custody and returned him to his unit on October 18, 2006. He was subsequently charged under Section 19(b) of the BSF Act, 1968, for overstaying leave without sufficient cause.

On July 7, 2007, a second charge sheet was issued against him, alleging that he had accepted a bribe of Rs. 25,000 from a civilian in 2002, facilitated unauthorized access to the BSF premises, and fraudulently obtained loans by submitting forged documents. A Summary Security Force Court trial was held from December 8 to December 14, 2007. The court found him guilty of two charges while acquitting him of others. He was dismissed from service on December 14, 2007.

The petitioner filed an appeal with the Director General of BSF under Section 117 of the BSF Act, challenging his dismissal. The appeal was rejected on April 10, 2008, with the authorities maintaining that the evidence justified the charges and that the penalty imposed was appropriate.

The High Court examined whether the disciplinary proceedings adhered to the principles of natural justice and due process. The judgment recorded, "The order of the disciplinary authority and the appellate/reviewing authority are based on the materials on record. No perversity is seen in the said order and the principle of natural justice has been followed."

The court assessed the penalty in light of judicial precedents and the proportionality of punishment. The judgment recorded, "The punishment for removal from service is excessive and harsh and the penalty of compulsory retirement from service would meet the ends of justice."

The court took into consideration the petitioner’s service history. It noted that he had served for 22 years and had been awarded cash rewards nine times during his tenure. It also found that he had only one prior disciplinary punishment under Section 19(a) of the BSF Act, for which he had been reprimanded. The judgment stated, "Keeping in view the fact that the petitioner joined the service in 1985 and was dismissed from service in December 2007 (after 22 years of service), this court is of the view that the punishment for removal from service is excessive and harsh."

The court examined procedural fairness in disciplinary proceedings and referenced judicial decisions addressing proportionality. The judgment recorded, "It is settled law that the court, in exercise of its power of judicial review, does not interfere with the findings of the disciplinary authority unless they are perverse. However, if the punishment is found to be grossly disproportionate, the court may interfere."

The court considered the petitioner’s eligibility for pension benefits. The judgment stated, "It is thus directed that the petitioner shall be entitled for notional continuity of service (if not already completed) till the date of completion of minimum service required to make him eligible for pension."

The High Court set aside the petitioner’s dismissal and substituted it with compulsory retirement. The judgment recorded:

• "The petitioner’s dismissal from service is set aside and replaced with compulsory retirement."

• "He is granted notional continuity of service until the minimum period required for pension eligibility."

• "The petitioner will not be entitled to salary or allowances for the period between his dismissal and this judgment."

The court disposed of the petition accordingly.

Case Title: Sankha Dutta v. The Union of India & Ors.
Case Number: WPA 10556 of 2008
Bench: Justice Shampa Dutt (Paul)

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