KASHMIR NEWS TRUST #KNT
A Division Bench of High Court of Jammu & Kashmir and Ladakh at Jammu comprising Justice Sanjeev Kumar and Justice Puneet Gupta, has allowed an appeal filed by Sunil Kumar-a BSF Constable, who had been dismissed from service in 2001 for remaining absent and whose writ petition was also dismissed by a Single Judge of the High Court of J&K in 2019.
While allowing the appeal, the Division Bench quashed the order of dismissal and held that the appellant shall be deemed to have been reinstated in service with effect from the date he was dismissed from service with all consequential benefits.
After hearing Advocate Muzzaffar Ali Shah appearing for BSF Constable, whereas Central Government Standing Counsel Sandeep Gupta appearing for BSF, the Division Bench headed by Justice Sanjeev Kumar further held, ‘it shall, however, remain open to the BSF Authorities to proceed with and conclude the trial by the Summary Security Force Court de novo within two months. The disbursement of consequential benefits shall be dependent upon the outcome of de novo trial by SSFC.’
During the course of arguments, Advocate Muzzaffar Ali Shah submitted that plea of “guilty” has been recorded on a cyclostyle/type sheet with blanks which have been filled up later during recording of the plea. The questions asked to the writ petitioner-Constable are in English language without making it clear whether the questions were also translated in the manner the charge sheet is said to have been translated and read over to the writ petitioner.
The Division Bench as per the news agency Kashmir News Trust after perusal of the record of the proceedings further observed, “it is crystal clear that is a pre-typed page where the particulars of the writ petitioner have been filled in with questions as to whether you plead “guilty” or “not guilty” to the charges. Below the questions, there are answer using singular word “guilty” and in the last paragraph, compliance to Rule 142 of the Rules is indicated by borrowing the language used in Rule 142 itself. As already noted, the plea of “guilty” is neither signed by the writ petitioner nor by Dy. Commandant D.S.Samyal, who acted as a friend of the writ petitioner in the trial.”
The Division Bench headed by Justice Sanjeev Kumar further observed, “In the instant case, the respondents have put the cart before the horse. The plea of “guilty” is recorded first and then the writ petitioner has been stated to have been informed about what is laid down in Rule 142 of the Rules. Even in the absence of their being specific provision in Rule 142 in the year 2001, it was prudent for the SSFC to obtain signatures of the writ petitioners or his friend appointed to defend him in acknowledgment of such plea of “guilty” made by the writ petitioner to the charges for which he was put on trial by the SSFC.”
After considering the rival contentions and going through the record of proceedings, the Division Bench came to a conclusion that the appellant had either not pleaded guilty to any of the Charge as is recorded by the Court or same was not voluntarily in nature. The Division Bench of the High Court further observed that the right of the appellant to have a fair trial before the SSFC has been violated and he has been condemned unheard.
With these observations, the Division Bench while setting aside the Judgment of the Single Judge allowed the appeal and quashed the dismissal of the appellant and held him entitled to reinstatement with effect from the date of dismissal. [KNT]