Calcutta High Court (Appellete Side)
(Sri Amiya Ghosh vs The Union Of India & Ors.) on 12 July, 2016
Author: Dipankar Datta
Bench: Dipankar Datta
1
03 12.07.2016
pg W.P.11501(W) of 2016
(Sri Amiya Ghosh vs. The Union of India & Ors.)
Mr. Amales Kr. Ray
Ms. Suman Sehanabis
Mr. Deborshi Dhar................for the petitioner
Mr. Sabyasachi Bhattacharya
Ms. Chandreyi Alam
Ms. Rajashree Venket Kundalia.....for the respondents
A show cause notice dated June 01, 2016 is under challenge in this writ petition. It appears on perusal of the impugned notice that the petitioner was tried by the General Security Force Court for commission of culpable homicide not amounting to murder punishable under section 304 of the Indian Penal Code. The Court returned a finding of not guilty. Such finding having been placed before the Additional Director General (EC) i.e. the confirming authority, he has disagreed with the finding of the Court and has called upon the petitioner to show cause as to why administrative action in terms of section 11 of the Border Security Force Act, 1968 read with Rule 22 of the Border Security Force Rules, 1969 should not be initiated against him.
It, however, appears from the impugned notice that the confirming authority has not indicated 2 with any degree of clarity the points of difference.
In the considered prima facie view of this Bench, the entire exercise of calling upon the petitioner to respond to the impugned notice would be futile without the petitioner being made aware of the precise reasons as to why the confirming authority felt disinclined to accept the findings of the Court. The confirming authority, in all fairness to the petitioner, ought to have indicate which evidence the Court failed to appreciate.
That apart, the question of jurisdiction of the confirming authority in issuing such show cause notice also appears to be involved. Prima facie, once again, the finding of 'not guilty' recorded by the Court cannot be reopened by the confirming authority. Question of confirmation arises when a finding/sentence is recorded by the Court and the same is sought to be enforced.
The writ petition deserves to be heard on affidavits.
Let affidavit-in-opposition be filed by the respondents by ten days; reply thereto, if any, may be filed within three days thereafter.
Put up this writ petition two weeks hence under the heading 'For Orders'.
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Pending disposal of this writ petition, the impugned show cause notice shall remain stayed.
(DIPANKAR DATTA,J.)