Calcutta High Court (Appellete Side)
4595W/2000 on 20 May, 2010
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1
In The High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present: The Hon' ble Mr Justice Jayanta Kumar Biswas.
W.P.No. 4595 (W) of 2000
Abdur Rahaman
-v.-
Union of India & Ors.
Mr Amitava Bhattacharyya, advocate, for the petitioner. Ms Anwari Qureshi and
Mr Subir Kumar Saha, advocates, for the respondents.
Heard on: May 20, 2010.
Judgment on: May 20, 2010.
The Court: The petitioner in this art.226 petition dated April 6, 2000 is seeking a mandamus commanding the first and second respondents to consider his appeal and set aside the final order of the Commandant, 84BN. BSF, dated April 13, 1999, Annexure C at p.25, inflicting the punishment of dismissal from service.
The document referred to as the appeal is dated June 1, 1999, Annexure D at p.26, and the whole of it is unreadable.
Ms Qureshi, counsel for the respondents, submits that the authority under s.117 of the Boarder Security Force Act, 1968 may be directed to dispose of the petitioner's petition against the findings and sentence of the Summary Security Force Court leading to the commandant's order dated April 13, 1999 within the time fixed by the court.
Mr Bhattacharyya, counsel for the petitioner, submits that in view of the age of the case it will not be appropriate to direct the s.117 authority to decide the petition dated June 1, 1999 filed by the petitioner who is not at fault for the 2 delay in deciding the art.226 petition filed in 2008 contending that the order of the commandant was passed illegally.
The petition is dated April 6, 2000. It was admitted by an order dated May 10, 2000. Hearing was adjourned on November 8, 2002 for non-appearance of the parties. Then it was dismissed for non-appearance of the parties on November 12, 2002. A restoration application was filed on July 14, 2003. By an order dated April 2, 2004 it was allowed.
The petition was again taken up for hearing on September 8, 2004. Hearing was adjourned for non-appearance of the parties. It was taken up for hearing again on October 4, 2004 when it was detected that notice of the case had not been given to the respondents. The petitioner was directed to serve notice and time to file opposition was extended. On June 4, 2008 the court concerned released the case for want of determination.
On these facts, I am unable to appreciate the argument that for delay in disposal of the petition the petitioner is not at fault. It is evident that he did not prosecute the case diligently.
It seems that for pendency of this case the s.117 authority did not dispose of the petitioner's petition that he filed considering himself aggrieved by the order of the commandant based on findings and sentence of the Summary Security Force Court. The petitioner himself prayed for a mandamus commanding the authority to decide his petition.
It is to be noted that no provision of the Border Security Force Act, 1968 entitled the petitioner to file an appeal from the order of the commandant to any authority. His petition dated June 1, 1999 treated by him as his appeal is, therefore, to be treated as his s.117 petition. In my opinion, the authority concerned should be directed to decide the petition.
3It is also to be noted that the authority empowered to decide the s.117 petition possesses the requisite power to examine the petitioner's contention that the commandant's order dated April 13, 1999 was made illegally. Hence there is no reason to say that if the matter is remitted, the s.117 authority will not be in a position to decide the point.
For these reasons, I dispose of the petition ordering as follows. Within eight weeks from the date of communication of this order the s.117 authority shall decide the petitioner's petition dated June 1, 1999 after giving the petitioner reasonable opportunity of hearing. The reasoned decision shall be communicated to the petitioner immediately. No costs. Certified xerox.
(Jayanta Kumar Biswas, J.)