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1. By this writ petition, the petitioner has prayed for quashing of the impugned orders dated 9.3.2002 and 18.12.2002 passed by the respondent No. 2 and 3, whereby the petitioner was dismissed from service for the alleged mis-conduct of absence from duty without leave for a period of 55 days from 14.11.2001 to 7.1.2002.

2. The facts succinctly stated are that the petitioner was enrolled as a Constable in the Border Security Force on 20.02.1990 through proper recruitment process. On 14.11.2001, allegedly, the petitioner absented from duty without leave. After his absence was noticed, the petitioner was directed to join his unit immediately vide 105 Bn BSF letter No. 2684-85 dated 16.11.01, 2777 dated 27.11.01, 2882 dated 10.12.01, 2984-85 dated 15.12.01 and 100-01 dated 06.01.02. Ultimately, the petitioner reported back in the unit on 7.1.2002 on his own. In the meantime, as per Section 62 of the BSF Act, a Court of Inquiry was ordered to find out the circumstances under which the petitioner had absented himself from duty without leave. After completion of the proceedings of the Court of Inquiry, in which the petitioner also deposed, the petitioner was found guilty of being absent without leave without sufficient cause. Accordingly, offence report was prepared and the petitioner was heard by his Commandant on 9.1.2002 under the BSF Rules. During the hearing, a prima facie case was found against the petitioner, therefore, the Commandant ordered for preparation of record of evidence (ROE). The petitioner was handed over the copy of the charge sheet to prepare his defense. After completion of record of evidence, the Commandant decided to dispose of Page 2201 the case by holding Summary Security Force Court under BSF Rule 51(2)(3). Accordingly, the petitioner was informed about the same and was directed under BSF Rule 157 to nominate any person to perform the duties of friend of the accused.

8. Counsel for the respondent, on the other hand, contended that the order of dismissal from service passed by the Competent Authority on 9.3.2002 was an order passed in accordance with the BSF Act and Rules. It was submitted by him that de novo trial can be held in a case where proper procedure has not been followed. He further submitted that in view of the submission made by the petitioner for mitigation of punishment on the ground that he had committed the offence unintentionally as his mental condition was not proper, the Competent Authority had rightly observed that the court should have substituted the plea of guilty by not guilty in terms of BSF Rule 143(4). Therefore, the SSFC trial proceedings were set aside in terms of BSF Rule 161(1)(a). Accordingly, de novo trial of the petitioner was again required to be conducted against which there was no embargo. On merits, it was pointed out that the petitioner was a habitual absentee from duty and had been indicted five times from the year 1999 to the year 2001 for over staying his leave without sufficient cause. Finally, it was submitted that the order passed by the SSFC was fully commensurate with the gravity of the offence committed by the petitioner and while passing such sentence all the provisions of the BSF Act and Rules were followed in letter and spirit.

9. Upon hearing counsel for the parties and going through the records produced by the respondents, we find that the respondent No. 2, the Director General, Border Security Force in exercise of his powers under Section 161 of the BSF Rules, set aside the SSFC trial proceedings on the ground that the said proceedings were hit by the provisions of Rule 143(4) of the BSF Rules, in as much as the court was required by the provisions of sub Rule 4(a) of Rule 143 to alter the plea of guilty to that of not guilty and proceed with the trial accordingly in view of the statement of the petitioner made in mitigation of punishment that he had committed the offence unintentionally, as his mental condition was not proper. Rule 143, Sub-rule 4(a) reads as follows:

21. Keeping in view the aforesaid position of law, we are of the considered view that the question as to whether a fresh trial or de-novo trial can be initiated against the accused would depend upon the reason for the setting aside of the earlier trial. There are clearly two kinds of cases (1) where the earlier trial was void ab initio in the eyes of law having been initiated by a court inherently lacking in jurisdiction to conduct the trial to which reference has been made hereinabove and (2) where the trial was initiated before a competent court vested with jurisdiction to conduct the trial, but subsequently the trial was vitiated on account of procedural or other grave irregularity committed in the conduct of the trial. The present case is clearly a case of the second type where the conviction is quashed not for want of inherent jurisdiction in the court, but because the trial was unsatisfactorily conducted. The petitioner who had earlier pleaded guilty to the charge, in his statement for mitigation of sentence stated that his mental condition was not proper and, therefore, the offence committed by him had been intentionally committed. Keeping in view the said statement of the petitioner and the provisions of Rule 143(4) read with Rule 161(1) of the BSF Rules, the court would have been well advised to alter the plea of Guilty of the petitioner to Not Guilty. The court not having done so, the proceedings were hit by the provisions of Rule 143(4) of the BSF Rules and the Appellate Authority, being the Dy.Inspector General, rightly concluded that the injustice had been done to the petitioner by reason of the grave irregularity in the proceedings. The petitioner accordingly was allowed to join back his duties and the sentence of his dismissal from service was set aside. So far, the order of Dy. Inspector General possibly cannot be faulted. What, however, followed was the second trial of the petitioner and this, to our mind, keeping in view the embargo imposed by Section 75 of the BSF Act and Article 20 of the Constitution of India was clearly impermissible.