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9. On 20.10.1995, a fresh charge sheet containing three charges was served on the appellant. Two charges were under Section 46 of the BSF Act for Civil offence committed in contravention of Section 25 of the NDPS Act and one charge under Section 40 of the BSF Act. Trial against the appellant commenced on 30.10.1995 by convening a General Security Force Court (hereinafter referred to as the “GSFC”).

10. The appellant, invoking Article 226 of the Constitution of India (hereinafter referred to as the “Constitution”), filed Writ Petition No. 16008 of 1995 before the High Court, against the rejection of his application questioning jurisdiction of the GSFC, which was dismissed on 18.01.1996.

19. However, the learned counsel for the appellant submitted that Charge No. 2, which was identical though the date(s) were 4/5th April, 1995, of having knowingly permitted the two smugglers to take out 44 Jerrycans of 40 litres each of Acetic Anhydride from India to Pakistan from Border fencing gate No. 205 of BOP Barake, under his control has been held to be proved by the GSFC, is clearly unsustainable as one accused Surjit Singh @ Pahalwan was given relief by the High Court by quashing the FIR against him on the ground that he was lodged in Central Jail, Amritsar on the said date(s), and the other co-accused Lakhwinder Singh was also discharged by the trial court itself in the absence of any evidence. Thus, according to learned counsel, two persons, stated to have taken away the Jerrycans having themselves been let off, the case against the appellant automatically fails. As far as Charge No. 3, of knowingly acting prejudicial to good order and discipline of the Force during his tenure as Commandant at Mamdot between November, 1994 and April, 1995 of the 67 Battalion of the Force and having improperly influenced Subedar Didar Singh of his unit to facilitate the alleged smuggling of contraband goods from India, is clearly not established for the reason that it was on the statement of the said Didar Singh (who was his subordinate and the actual in-charge of the area where the said activity is alleged to have occurred) has, clearly, made a statement to save himself from the obvious and severe consequences, which would have entailed. Learned counsel submitted that this may even have been at the behest of the superior officers of the appellant, inasmuch as there was genuine apprehension of the same, for the appellant had stoutly refused to oblige his Controlling Officer, on an earlier occasion. It was contended that the trial itself was a nullity as the BSF Act does not envisage the GSFC trying offence(s) under the NDPS Act and it also did not obtain the requisite sanction from the Central Government for initiating trial against the appellant as required under and in terms of Section 59(3) of the NDPS Act. It was further contended that Rule 102 of the BSF Rules, 1969 (hereinafter referred to as “the Rules”) provides that only one sentence shall be awarded in respect of all the offences of which the accused is found guilty. However, in the present case three punishments were given, which contravenes Rule 102 of the Rules read with Section 48 of the BSF Act.

20. It was the submission of learned counsel that the sentence of dismissal from service is also illegal as the appellant retired on 31.08.1995, even before the issuance of the charge sheet in question and thus there cannot be any sentence of dismissal from service, which is made clear from Rule 166 of the Rules, which stipulate that the sentence of dismissal shall take effect from the date of promulgation of such sentence or from any subsequent date as may be specified at the time of promulgation, which in the present case is much after the superannuation of the appellant from service. Likewise, it was contended that once the first charge sheet dated 04.07.1995 was dropped, apparently for insufficient evidence, the appellant was required to be discharged under Rule 59(1)(i) of the Rules and thus, the second charge sheet dated 20.10.1995 is illegal more so since Chapter VIII of the Rules do not contemplate the issuance of any second charge sheet under the BSF Act and the Rules. It was submitted that the Rules specifically provide for amendment of the charge sheet i.e., addition, omission or alteration in the charge by the GSFC; whereas in the instant case, an entirely new charge sheet had been issued by the Additional DIG which tantamounted to, in effect, a second trial which is prohibited under Section 75 of the BSF Act.

22. Learned counsel submitted that neither the BSF Act nor the Rules envision withholding pension, gratuity, leave encashment and other dues/benefits of any retiree, after retirement without there being a specific order under Section 48(1)(k) & 48(1)(l) of the BSF Act, which in the present case has admittedly, not been passed. Even otherwise it was contended that withholding pension is violative of Rule 9 of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as “the Pension Rules”) which provide that only Hon’ble the President of India can withhold pension of an employee.