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KAILASH GAMBHIR, J.

1. In this writ petition filed under Article 226 of the Constitution of India, the petitioner seeks to challenge the order dated 08.08.2002, which rejected his statutory petition and his dismissal from service by the order dated 27.02.2001.

2. The case of the petitioner is that while discharging his duties as a Constable in BSF, he was allegedly found asleep on duty at 23:35 hours on 12.08.2000; because of such dereliction in duty, he was tried by the Summary Security Force Court (for short 'SSFC') and was found guilty of the charge under Section 16(c) of the Border Security Force Act, 1968 (hereinafter referred to as 'the BSF Act'). The petitioner was dismissed from service and on the same date, i.e. 04.09.2000 he was struck off from the strength of 162 Battalion, BSF. Against this order the petitioner filed ____________________________________________________________________ an appeal before the DIG, BSF, Malda. Vide order dated 19.10.2000, the DIG, BSF, Malda while setting aside the said order, observed that the first proceeding held by the SSFC was devoid of merits. In terms of this order, the petitioner was reinstated in the service by the respondents and was directed to report to the Commandant of 162 Battalion. Furthermore, his absence from duty w.e.f. 04.09.2000 to 29.10.2000 was regularised by granting him leave vide order dated 03.10.2000.

3. The grievance of the petitioner is that after being charged and tried for the said misconduct, he was once again charged and tried for the same. Vide order dated 27.02.2001 he was once again dismissed from service by the SSFC. The order dated 27.02.2001 passed by SSFC was again assailed by the petitioner by filing a statutory appeal under Section 117 of the BSF Act. However, this time the appeal was rejected by the concerned DIG vide order dated 08.02.2002.

4. Mr. Virender K. Singh, the learned counsel appearing for the petitioner submits that the petitioner could not have been punished twice for the same offence/incident, particularly, when the DIG in the statutory appeal filed by the petitioner, vide order dated 19.10.2000 held that the first SSFC proceedings were devoid of any merit and the respondents never challenged this Order. He argued that the respondents cannot now direct de novo proceedings against the petitioner concerning the same incident for which he has already been charged and tried by them.

5. The stand taken by the respondents in their counter affidavit is that there was a serious charge against the petitioner as he was found sleeping ____________________________________________________________________ while on active duty as a Night Ambush Sentry. It is also the stand of the respondents that the first SSFC proceedings were dismissed on a technical ground because Shri K.K. Singh, 21C/Officiating Commandant who held the said proceedings was himself a witness to the incident in issue. In such circumstances, the respondents were not debarred from conducting a de novo trial against the petitioner. The respondents have also taken a stand that though the petitioner was found guilty of the charge, the SSFC awarded him the minimum penalty of dismissal from service w.e.f. 27.02.2001 by taking a lenient view of the matter. It is submitted that under Section 16(c) of the BSF Act, such an offence is otherwise punishable with the imprisonment for a term which may extend to 14 years.

7. We have heard the learned counsel for the parties and given our careful consideration to arguments advanced by them.

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8. The petitioner was enrolled in BSF as a Constable. On, 12.08.2000 he was detailed alongwith other members of the ambush party for ambush No.4 at BOP Churiantpur. At 23:35 p.m. when Shri K.K Singh, 21C/Officiating Commandant reached the ambush point No.4, he found the petitioner sleeping and his personal weapon lying unattended. The petitioner was woken up by a guard personnel and when he was questioned about his conduct by the Officiating Commandant, he requested to be pardoned for the same. The petitioner was heard by the Officiating Commandant under Rule 45 of the BSF Rules and thereafter the Officiating Commandant ordered for the preparation of the record of evidence in the case. On 4th September, 2000 the petitioner was tried by the SSFC and on being found guilty of the charge under Section 16(c) of the BSF Act, he was dismissed from service. The finding and the sentence were pronounced to the petitioner on the same day; his name was struck off from the strength of 162 BN BSF with immediate effect.