Subash Singh Yadav vs ) Union Of India Through Home Secretary on 1 February, 2024

[Cites 12, Cited by 0]

Jammu & Kashmir High Court

Subash Singh Yadav vs ) Union Of India Through Home Secretary on 1 February, 2024

01. Through the medium of the instant petition, the petitioner has invoked the extraordinary writ jurisdiction of this Court enshrined under Article 226 of the Constitution of India while imploring for the following reliefs:-

                            i)   To          quash        Order         No.
                            Estt/163/SSFC/SSY/2002/1874-89            dated

20.2.2002 issued by the Commandant 163Bn BSF by which the Commandant has imposed the 2 SWP No. 2587/2002 punishment of dismissal from service on the petitioner and to quash Order No. Estt/DISC/SHQ/RJR/02/4910-14 dated 19.09.2002 issued by the Dy. Inspector General of BSF, Sector Headquarter Rajouri by which the Dy. Inspector General has rejected the appeal of the petitioner being devoid of merit and also to quash Summary Security Force Court proceedings (if any done) and also to quash the Charges framed against the petitioner by issuance of writ of Certiorari; and

ii) To issue direction to the respondents to consider the case of the petitioner for re- instatement and to allow the petitioner to join and perform the duties on the post of Constable on which the petitioner was working prior to the issuance of Order dated 20.2.2002 and to pay salary and all other consequential benefits to the petitioner for which the petitioner is entitled and also to treat the period from the date of dismissal to the date the petitioner re-join the duty as „on duty‟ by issuance of writ of mandamus; and

iii) To issue direction to the respondents restraining them to implement the Order No. Estt/163/SSFC/SSY/2002/1874-89 dated 20.2.2002 and restraining the respondents to fill up the post of petitioner by making appointment or adjustment and also restraining the respondents to treat the period w.e.f. 20.2.2002 till the date the petitioner re-join the duty as „break in service‟ by issuance of writ of prohibition; and

iv) To issue direction to the respondents to declare the Order No. Estt/163/SSFC/SSY/2002/1874-89 dated 20.2.2002; and Order No. Estt/DISC/SHQ/RJR/02/4910-14 dated 19.9.2002; and Summary Security Force Court proceedings (if any done) and also the Charges framed against the petitioner as unconstitutional, ultra-vires and contrary to the provisions of BSF Act and Rules by issuance of writ of mandamus;

v) To issue direction to the respondents to produce all the record of Summary Security Force Court proceedings (if any done) before this Hon‟ble Court by issuance of writ of mandamus.

3 SWP No. 2587/2002

02. The facts under the shade and cover of which the aforesaid reliefs have been prayed by the petitioner as stated in the petition are that the petitioner came to be appointed as a Constable (GD) in the Border Security Force (for short "the BSF") on 18.04.1992 under no. 92010106 having been recruited from West Bengal and upon undergoing training at Kharkha Camp (Punjab) came to be posted in 163 Bn BSF.

03. It is being stated that the petitioner came to be granted 15 days leave w.e.f. 28.08.2002 to 12.09.2002 and during the period of availing of the said leave, the petitioner was taken ill which illness was reported to the respondents through various letters and a representation along with Medical Certificate, which came to be received by the respondents on 14.10.2000, and that in the meantime, there was marriage of the petitioner's nephew and the petitioner again applied for leave to the respondents, which, however, was not granted.

04. It is being next stated that the respondents framed a charge against the petitioner on 18.02.2002 under Sections 19(a) and 19(b) of the Border Security Force Act, 1968 (for short "the Act of 1968") alleging therein that the petitioner having been granted 16 days leave w.e.f. 4 SWP No. 2587/2002 28.08.2000 up to 12.09.2000 failed to rejoin his duties and thereafter re-joined on 18.12.2000 after over staying the leave of 97 days and that the respondents framed another charge against the petitioner alleging that the petitioner having been discharged from General Hospital, Rajouri on 11.04.2000 with a direction to report to the Battalion Headquarter, Rajouri absented without leave till 29.05.2001 i.e. remained absent for 49 days.

05. It is being next stated that the respondents, after framing the aforesaid charge, did not conduct any inquiry regarding the aforesaid charges under Rule 53 of the Border Security Force Rules, 1969 (for short "the Rules of 1969") and instead the petitioner was put under open arrest vide order dated 18.02.2000 followed by order dated 20.02.2002 releasing the petitioner from open arrest and, consequently, followed by Order no. Estt/163/SSFC-SSY/2002/1874-89 dated 20.02.2002 in terms whereof the respondents dismissed the petitioner from service.

06. It is being next averred that aggrieved by the said order of dismissal dated 20.02.2002, the petitioner filed an appeal under Rules 167 & 168 of the Rules of 1969 before the Deputy Inspector General of BSF, urging 5 SWP No. 2587/2002 specifically therein that the order of dismissal has been issued without holding any inquiry, which appeal, however, in terms of order dated 19.09.2002, came to be rejected on the ground being devoid of merit.

07. The petitioner in the instant petition while seeking the aforesaid reliefs in the petition questioned the proceedings of the Summary Security Force Court (for short "the SSF Court") and order of dismissal dated 20.02.2002 along with order dated 19.09.2002 on the following grounds:-

i) That the orders are against law and rules. So the same are not sustainable and liable to be quashed.

ii) That the petitioner was appointed as Constable on 18.4.1992. The petitioner was granted 15 days leave from 28.8.2000 to 12.9.2000. The petitioner during the leave period fell ill. The petitioner has also informed the respondents about his illness through letters and the petitioner has specifically mentioned that the petitioner after recovering from illness through letters will re-join the Unit. The petitioner has also sent medical document alongwith the representation. The petitioner after recovering from illness re-joined the Unit on 18.12.2000 and submitted all the medical documents. Thereafter there was a marriage of Petitioner's Nephew and the petitioner has applied for the leave. The respondents have not granted the leave, but the immediate officer of the petitioner has orally sanctioned the leave and after re-joining the Unit the petitioner submitted the wedding card of the marriage of his Nephew. The respondents have not conducted any inquiry and without conducting any inquiry the respondents have directly framed the charge sheet against the petitioner on 18.2.2002 U/S 19(b) and 19(a) of the BSF Act. The respondents have placed the petitioner under open arrest vide Order dated 18.2.2002 and released on 20.2.2002. Thereafter the respondents without conducting any proceedings under the Summary Security force Court and without following the provisions of BSF Act and Rules and also without affording an 'opportunity of being heard to the petitioner vide order dated 20.2.2002 imposed punishment of dismissal from service on the 6 SWP No. 2587/2002 petitioner. The petitioner has filed an appeal on 30.5.2002 as required under Rules 167 & 168 of BSF Rules to Dy. Inspector General of BSF for quashment of the order, and the Dy. Inspector General has also not given an opportunity of personal hearing to petitioner and without affording an opportunity of being heard, rejected the appeal on 19.9.2000 that too without considering that there is a breach of procedure. So the orders are not sustainable and liable to be quashed, as it violates the provisions of Articles 14 & 16 of the Constitution of India and it also violates the provisions of principles of natural justice.

iii) That under the provisions of Section 62 of BSF Act, when any person subject to the act has been absent from duty without due authority for a period of 30 days, the Court of Inquiry shall be appointed by such authority in such manner as may be prescribed. In the present case the respondents have not conducted any Inquiry as required under Rules 170 to 176. Under Rule 170 the Court of Inquiry may consists of one or more persons and under Rule 173 the proceedings of the Court have to be conducted, the statements of witnesses have to be recorded and the evidence given by the witnesses shall be recorded in narrative form. Under Sub-Rule 8 of Rule 173 before giving any opinion against any person the court further afford that person an opportunity to know all that has been stated against him, cross-examine any witness who has given evidence against him and make a statement and call witnesses in his defence. Under Rule 176 the delinquent shall be entitled for copies of the proceedings of the Court of Inquiry. In the present case the respondents have done nothing, neither complied any provisions or law nor given the copies of proceedings to the petitioner, while it is a settled law that copies of proceedings have to be given to the delinquent so that the delinquent must know what are the allegations, who have stated against him and who were the witnesses. The respondents have not followed the provisions of law and without conducting proper inquiry have dismissed the petitioner from service. So the orders are not sustainable and liable to be quashed. It violates the provisions of BSF Act and Rules and also violates the provisions of principles of natural justice.

iv) That the respondents have not served any notice nor given an opportunity to the petitioner to rebut the allegations or to show the genuine cause of his absence while under the provisions of Rule 20 the respondents have to give opportunity to the petitioner to show his cause of absence, to enquire or deny the allegations, to produce the material witnesses in his defence and also to cross-examine the witnesses and all has to be done in presence of petitioner. Under Rule 21 the Inquiry has to be conducted by the Inquiry Officer under the procedure prescribed. The Inquiry Officer has to consider and scrutinize all the documents and evidence and after 7 SWP No. 2587/2002 the penalty has to be imposed. The respondents have not recorded any record of evidence as required under Rule 48. Under Rule 49 before the accused make any statement the copies of abstract of evidence shall be given to the accused so that the accused must know who has been evidence against and thereafter under Sub-Rules 3 & 4 of Rule 48 the accused made a statement and also call the witnesses in his defence. The copies of proceedings have to be given to the delinquent, so that the delinquent must know what are the allegations, who have stated against him and who were the witnesses. In the present case the respondents have neither recorded any record of evidence nor given the copies of proceedings to the petitioner, while it is a settled law and held by the Hon‟ble Supreme Court of India that copies of proceedings have to be given to the delinquent. So the order are not sustainable and liable to quashed, as it violates the provisions of BSF Act and Rules.

v) That the order is illegal and error apparent on the face of record on the ground that the respondents have framed the charge-sheet directly under Rule 53 of the BSF Rules. The respondents have not given an opportunity to the petitioner, neither served any show cause notice nor the petitioner was made aware about the allegation or anything adverse against him. It is a settled law that any order or dismissal on ground of absence without leave, passed in mere exercise of administrative parts without following either of three alternatives specified in Sections 19, 62, 20, 21 and 22, is ultravires power of authority. The respondents without following the provisions of BSF Act and Rules, passed the order thereby depriving the petitioner from his valuable right of service, while the petitioner has not done any act for which such a harsh, disproportionate and excessive punishment has to be awarded. Removal from service amounts to depriving the petitioner from his valuable right of service when the petitioner hits not committed any offence and there was no allegation of misconduct, disobedience, neglect of duty or remissness during the service career of the petitioner being a member of the Force. It is a settled law that a single act of omission or commission which is done because of ignorance or innocence does not amount to misconduct or neglect. The respondents have snatched the bread and butter from the mouth of family of the petitioner and dragged the petitioner and his family to lead a life of starvation that too without following the provisions of BSF Act & Rules and there is a dear cut breach of procedure. So the orders are not sustainable and liable to be quashed, as it violates the provisions of BSF Act and Rules and it also violates the provisions of principles of natural justice.

vi) That under Rule 133 the proceedings of Summary Security Force Court are to be conducted, and under 8 SWP No. 2587/2002 Rule 134 the evidence has to be recorded in the language which the Court or accused does understand. Under Rule 139 of BSF Rules the accused when required to plead to any charge may object to the charge and Rule 142 the respondents have to ask the petitioner the plea of guilty or not guilty. Under Rule 157 an accused may take assistance of a person including a legal practitioner as he may consider necessary. In the present case the respondents have not done anything, neither followed the provisions of law nor conducted any proceedings as required under the provisions of BSF Act and Rules. It is a well settled law that the persons belonging to para- military forces are also entitled for the protection of civil rights. The respondents have not conducted any proceedings as required under the Act and have not given any cogent reason in the order and the respondents have implemented the sentence without confirmation from the competent authority and without following the provisions ok BSF Act and Rules. So the orders are not sustainable and liable to be quashed.

vii) That the respondents have not conducted any of the proceedings in presence of the petitioner and have not afforded an opportunity of being heard and without complying the provisions of BSF Act and Rules passed the order just for the purposes of dismissing the petitioner from service, while it is a settled law that the order should be a reasoned one and self-contained and it should be passed by applying judicial mind and it should not be a result of whim, caprice or fantasy. It is also a settled law that mere absence from duty is not prese misconduct and where the employee proceeds on leave and does not resume the duty, even then some inquiry is required to be held and the service tenure cannot be brought to an end without compliance of principles of natural justice. In the presence of some Service Regulations visualizing the concept of automatic termination, the inquiry is required to be held and the order of removal or termination has to be proceeded by hearing and the order has to be a reasoned one. It is also held by the Hon‟ble Supreme Court of India that when a person has been granted leave and has applied for extension of leave and has no willful intention to flout the order, the punishment of dismissal is harsh and disproportionate and the Hon‟ble Supreme Court has granted the relief of reinstatement with all monetary and service benefits. In the present case, when petitioner had also applied for extension of leave, the respondents are under obligation to consider the case of the petitioner for treating the dismissal period as on duty, but they have passed the order in administrative manner without following any of the provisions of BSF Act and Rules. So the orders are not sustainable laid liable to be quashed, as it violates the provisions of Articles 14 & 16 of the Constitution of India and it also violates the provisions of principles of natural Justice. 9 SWP No. 2587/2002

viii) That the Dy. Inspector General of BSF has not appreciated that the punishment is harsh, disproportionate and it is a settled law that dismissal merely on the ground of over stay of leave is harsh. The Dy. Inspector General has also not given any personal hearing to the petitioner, while under the provisions of law the personal hearing has to be given to the petitioner. It is for the Dy. Inspector General of BSF to afford an opportunity to the petitioner, so that the petitioner provide something in his defence. The respondents have not followed any provisions of law and also not afforded an opportunity of being heard to the petitioner and neither the respondents given an opportunity to the petitioner to defend his case properly. In the Order dated 20.2.2002 the respondents have mentioned that the petitioner has been tried by the Summary Security Force Court on 20.2.2002. So it is clear that no provisions of BSF Act has been followed because the proceedings of Summary Security Force Court was alleged to have been done on the same very date within 1½ hours and under the provisions of BSF Act, the proceedings of Summary Security Force Court are to be conducted like a full trial by following each and every procedure and by affording an opportunity to the petitioner to defend his case properly and in the present case this is not done and there is a breach of procedure and it is a settled law when there is a breach of procedure the Hon‟ble Court has got the jurisdiction to interfere in such like matters. The petitioner who belongs to poor family and has not committed any such offence for which such a harsh disproportionate punishment has to be awarded. Moreover till date there is nothing adverse against the petitioner and there was no intention of the petitioner for over staying the leave and it is only due to the compelling circumstances the petitioner fell ill and other is to cop of with the social circle, the respondents have not appreciated and snatched the bread and butter from the mouth of the minor children of the petitioner, while the family of the petitioner was dependent upon the service of the petitioner which was the only source of income. The respondents have not appreciated and without following the provisions of BSF Act and Rules issued the order thereby depriving the petitioner from his valuable right of service. It violates the provisions of principles of natural justice and it also violates the provisions of Articles 14 & 16 of the Constitution of India.

08. Objections/reply to the petition have been filed by the respondents wherein it is being admitted that the petitioner came to be enrolled as a Constable on 18.04.1992 and that while posted in 163 Bn BSF, he 10 SWP No. 2587/2002 applied and came to be granted 16 days of earned leave w.e.f. 28.08.2000 up to 12.09.2000 where after availing the same the petitioner did not resume his duties and instead sent an application dated nil seeking extension of the leave on account of his illness, which application came to be considered and rejected in terms of letter dated 25.09.2000 calling upon him to resume his duties which he did not and that subsequently letters dated 15.10.2000, 15.11.2000 & 07.12.2000 came to be issued to the petitioner asking him to resume his duties which he did not resume, whereafter a Court of Inquiry was ordered against the petitioner under section 62 of the Act of 1968 during the proceedings of the Court of Inquiry, the petitioner joined his duties on 18.12.2002 overstaying for 97 days and the said Court of Inquiry upon completion of the proceedings, recommended holding of a disciplinary inquiry against the petitioner under the Act of 1968 and BSF Rules of 1969.

09. It is being next stated that on 01.04.2001, the petitioner reported sick and was referred to the 150 General Hospital for treatment by Regimental Medical Officer of the 7 Jat Regiment whereafter the petitioner came to be discharged from the said Hospital on 11.04.2001 with a direction to report for duties in his Battalion, and that 11 SWP No. 2587/2002 the petitioner, however, yet again absented without leave from 11.04.2001 necessitating the issuance of letters dated 17.04.2001, 12.05.2001 and 28.05.2001 calling upon him to resume the duties and on his failure to resume the duties, again a Court of Inquiry came to be ordered in terms of Section 62 of the Act of 1968 against the petitioner, and during the proceedings of said Court of Inquiry, the petitioner again reported in the Unit on 29.05.2001 after remaining absent for 49 days and that the said Court of Inquiry after finalizing the said proceedings recommended holding of disciplinary proceedings against the petitioner under the Act of 1968 and BSF Rules of 1969 respectively.

10. It is being next stated in the objections that on 25.11.2001, the petitioner was heard by the Commandant 163 Bn BSF under the provision of Rule 45 of the Rules of 1969 on two charges drawn and framed against the petitioner under section 19(b) and 19(a) of the Act of 1968 and, accordingly, ordered the Abstract of Evidence (AOE) and Record of Evidence (ROE) for trying the said charges on 20.02.2002 detailing out the statement of offences in both charges, followed by the arraignment of the petitioner and came to be proceeded under the provisions of Rule 142(2) of the Rules of 1969 12 SWP No. 2587/2002 and upon his pleading guilty before the SSF Court, the petitioner came to be dismissed from service, which dismissal came to be countersigned by the DIG BSF under the provisions of Section 115 of the Act of 1968.

11. It is being admitted in the objections that the petitioner preferred an appeal on 30.05.2002 against the order of dismissal before the DIG BSF Rajouri, which came to be rejected on 19.09.2002.

12. It is being further stated in the objections by the respondents that the entire proceedings initiated against the petitioner came to be conducted in accordance with the provisions of Act of 1968 and the Rules of 1969 and that the petitioner had come to afford adequate opportunity during the said proceedings to defend himself.

It is being further stated that since the petitioner pleaded guilty to both the charges before the SSF Court and that the entire proceedings conducted against the petitioner were translated into Hindi and explained to the petitioner to his entire satisfaction whereafter, the order of dismissal came to be passed validly and rightly.

13. It is being also stated that during the course entire proceedings before the SSF Court, the petitioner was 13 SWP No. 2587/2002 being assisting upon his nomination by a friend, namely, Sh. Soorya Kant Sharma who had remained present throughout the entire proceedings.

14. It is being further stated in the objections that the punishment of dismissal from service awarded to the petitioner has been commensurate to the gravity of the offence and that the petitioner previously also had been found to have committed various acts of indiscipline having suffered custody on three occasions dated 21.10.1998, 17.12.1998 and 29.07.2000.

15. It is being lastly stated in the objections that the petition being devoid of merit, deserves to be dismissed. Heard learned counsel for the parties and perused the record.

16. Learned senior counsel for the petitioner, while making her submissions in line with the contentions raised and grounds urged in the petition, would contend that the respondents did not follow the provisions of Rules 43, 45 and 49(2) of the Rules of 1969 before conducting SSF Court proceedings, and committed breach of the said Rules which invalidated the consequential proceedings of SSF Court wherein the petitioner did not plead guilty, and even while recording the said plea of guilty, the 14 SWP No. 2587/2002 mandate of sub rule 2 of rule 142 of the Rules of 1969 was not followed by the respondents.

On the contrary, the counsel for the respondents, while making his submissions in tune with the stand taken by the respondents in their objections/reply filed to the petition, would contend that the proceedings against the petitioner, be it under Chapter VII of the BSF Rules of 1969, being under Rule 43, 45, 49 & 52 came to be adhered to in letter and spirit and that even the SSF Court proceedings initiated against the petitioner were held in accordance with Chapter XI of the Rules of 1969 being under Rule 138 and 142.

The counsel for the respondents would also contend that the appeal preferred by the petitioner against the order of dismissal, as well, came to be considered and decided by the appellate authority, having regard to the facts and circumstances rightly and validly in accordance with law.

17. In view of the aforesaid rival contentions of the appearing counsel for the parties, it becomes imperative for this Court to examine the record of proceedings undertaken by the respondents against the petitioner.

18. Perusal of the said record produced by the counsel for the respondents would reveal that the respondent 5 15 SWP No. 2587/2002 herein being Commandant 163 Bn BSF had drawn and prepared an offence report envisaged under Rule 43 of the Rules of 1969 on 23.11.2001 against the petitioner and also initiated proceedings thereon in terms of Rule 45 of the Rules on 23.11.2001 itself.

19. Perusal of the said record also reveals that in compliance to Rule 45 supra the respondent 5 herein has heard the petitioner and also provided him an opportunity to cross- examine the witnesses which witnesses included Head Constable Om Prakash Joshi recorded on 01.12.2001 in presence of the petitioner, Head Constable Khem Giri recorded on 01.12.2001, Constable Subir Mondal recorded on 01.12.2001, Constable Rakesh Kumar recorded on 01.12.2001, Constable Sunil Kumar recorded on 09.12.2001, Constable V. J. Francis recorded on 09.12.2001 and Constable Mukesh Chand recorded on 09.12.2001 and their statements had been recorded in presence of the petitioner and the petitioner had chosen not to cross-examine the said witnesses despite having been offered the same.

Record also reveals that even the statements of all the aforesaid witnesses stand signed by the petitioner.

20. Further perusal of the said record would also tend to show that the evidence against the petitioner came to be 16 SWP No. 2587/2002 closed on 09.12.2001 itself whereafter the petitioner came to be called upon to make a statement, which statement the petitioner made and same being significant and relevant to the controversy herein is extracted and reproduced hereunder:-

"After coming from over stayed leave of 97 days from home, I reported to HQ, 163 Bn BSF Rajouri on 17 Dec, 2K and on 22 Dec, 2K, I was sent to D Coy, 163 Bn BSF. In D Coy, 163 Bn BSF, I performed duty upto 31 March, 2001, during which I was firstly at FDL 482 and thereafter at permanent stop ......... I was reporting for leave as there was marriage of my nephew at home in the month of April, 2001. On 20 Apr, 01, there was "PHALDAN" (a ritual of marriage); on 03 May, 01, there was "MANDAP" (another ritual of marriage); on 04 May, 01, there was "BARAT" and on 05 May, 01; the "BARAT" returned. On 01 Apr, 01, I suffered of chest pain. I was sent to RMO, 05 Jat, who referred me to 150 GH, Rajouri. I was taken to 150 GH, Rajouri the same day, where I was admitted. I was discharged on 11 Apr, 01. After getting discharged I went home.

On 16 Feb, 01, Comdt of the Unit also visited Coy and convened a sainik sammelan. During that day, I was on ROP duty and I would not meet him, Had I met him, I would have let him know of my problem.

I have nothing else to say."

21. Perusal of the record supra would further tend to show that the petitioner was asked by respondent 5 herein as to whether he wish to call any witness to which the 17 SWP No. 2587/2002 petitioner replied that "I do not want to call any witness" and signed the said statement made by him on 15.12.2001 itself in presence of independent witnesses being SI Manoj Kumar Pathak and Head Constable/RO Manoj Kumar.

22. Record further reveals that on 15.12.2001 the respondent 5 upon completion of the proceedings endorsed a certificate as follows:-

"Certified that the record of evidence ordered by Shri P. K. Dubey, Commandant, 163Bn, BSF (vide Order no. Estt/163/ROE- SSY/2001/20509-11 dated 23 Nov, 2001) was made in the presence and hearing of accused and the provision of Rule 48 have been complied with."

23. Perusal of the record of the proceedings would further reveal that the petitioner herein came to be furnished the copy of ROE/AOE proceedings along with its exhibits, copy of charge-sheet dated 18.02.2002, copy of order of appointment of friend of the petitioner dated 18.02.2002 along with defense witness for SSF Court dated 18.02.2002 and as a token of acceptance, the petitioner affixed his signature upon receipt of the said documents on 18.02.2002 suggesting the compliance of the provisions of Rule 49 of the Rules of 1969. 18 SWP No. 2587/2002

24. An examination of the record of SSF Court proceedings would tend to show that the said proceedings came to be commenced by the SSF Court on 20.02.2002 held at Hq. 163 Battalion BSF Rajouri, in presence of Inspector Promod Gangwar, SI Govind Singh Rawat, Interpreter P. K. Dubey (Commandant) and the friend of the accused Sh. Sorya Kant Sharma Deputy Commandant. Perusal of the said record reveals that the proceedings of the SSF Court came to be commenced at 1305 hours in presence of the petitioner, whereafter the charge-sheet came to be read translated and explained to the petitioner being annexure B-2, and the petitioner came to be asked as to whether he pleads guilty or not insofar as the first charge is concerned, to which the petitioner pleaded guilty and so as he pleaded guilty to the second charge after being asked as to whether he pleads guilty or not to the said second charge.

25. Record of the SSF Court further demonstrates that after recording the plea of guilty expressed by the petitioner to both the charges, the SSF Court explained to the petitioner the meaning of the charge(s) to which he had pleaded guilty in order to ascertain that the petitioner understood the nature of the charge(s) to which he had pleaded guilty and had also informed the petitioner the 19 SWP No. 2587/2002 general effect of that plea and the difference in procedure to be followed consequent to the said plea and after drawing satisfaction that the petitioner has understood the charge(s) and the effect of his plea of guilty accepted and recorded the same in compliance of Rule 142(2) of the Rules of 1969.

26. Record of the SSF Court proceedings also show that the SSF Court after the petitioner pleaded guilty to the charges had called upon the petitioner as to whether he wishes to make any statement in reference to the charges or in litigation of punishment to which the petitioner had stated as follows:-

"That I may be pardoned this time and will not repeat such mistake in future".

Record further shows that thereafter the SSF Court has further asked the petitioner as to whether he wishes to call any witness as to his character to which the petitioner replied „No‟.

27. The record of the SSF Court would further tend to show that the court after taking into consideration the entire material before it along with the plea to guilty expressed by the petitioner passed the order on 20.02.2022 which reads as follows:-

20 SWP No. 2587/2002

"To be dismissed from service" and close the trial at 1430 hours. The said proceedings of the SSF court reveal that same stand countersigned by Deputy Inspector General SHQ BSF Rjr on 08.05.2002."

28. Having regard to the aforesaid facts and circumstances noticed in the preceding paras in general and in particular the proceedings initially conducted by the respondents under Chapter VII of the Rules of 1969 followed by the proceedings conducted by the SSF Court under Chapter XI of the said Rules, it is manifest that the respondents have followed the mandate of the both the Rules in letter and spirit. The contention of the petitioner that the respondents did not follow the mandate of Rules is found to be factually incorrect, so is also found the contention of the petitioner factually incorrect that the SSF Court proceedings were not conducted in accordance with Rules contained in Chapter XI of the Rules of 1969. The judgments relied upon by the learned senior counsel for the petitioner in support of the aforesaid contentions raised, thus, pale into insignificance as the said judgments do not lend any support to the case of the petitioner considering the aforesaid facts and circumstances.

21 SWP No. 2587/2002

29. Viewed thus, what has been observed, considered and analyzed hereinabove, the instant petition fails and is, accordingly, dismissed.

30. The original record produced by the learned counsel for the respondents be returned after retaining a photocopy the same on the record of the instant petition.

(JAVED IQBAL WANI) JUDGE JAMMU 01.02.2024 Bunty Whether the order is speaking: Yes Whether the order is reportable: Yes

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