JUDGMENT :

M.V. Muralidaran, J.

This writ petition has been filed by the petitioner to quash the impugned order of removal from service dated 23.6.2020 and the order of the appellate authority dated 11.1.2021 and to reinstate the petitioner into service.

2. Brief facts which led to the filing of the writ petition are as follows:

The petitioner was serving with Sashastra Seema Bal (SSB) since 13.06.2012 up to 23.06.2020 in a post of Constable (General Duty) i.e. CT (GD). The petitioner had an unblemished record for 8 years from the date of his joining till 23.06.2020. On 13.07.2018, the petitioner was performing sentry duty at RP Gate - 1 at 41st Battalion (Bn.), SSB Ranidanga diligently. His duty hours was from 0600 hrs to 0900 hrs and, at about 0854 hrs, he took out his mobile phone to talk with the next personnel who was to take over the charge. The mobile phone was seized by the duty officer JCO ASI (GD) on the spot at the fag end of the duty hours at around 0855 hrs.

2.1. It was further alleged against the petitioner that he altercated and had also cocked his rifle during duty hours in the course of such altercation. However, no pint of allegation ever pontificated that the petitioner had either pointed the rifle against anybody or fired any bullet. In view of the false and concocted accusation raised against the petitioner, he was immediately suspended from duty. Through convening order dated 17.06.2018, the Court of Inquiry (COI) was conducted and submitted a report on 23.07.2018. Thereafter, respondent No.6 prepared a chargesheet under Section 22 of the SSB Act, 2007 and further detailed respondent No.8 to prepare the Record of Evidence (ROE), which was duly submitted on 03.10.2018.

2.2. In furtherance to ROE proceedings, respondent No.6 ordered a Summary Force Court (SFC) which was held on 11.02.2019 and was tried and the petitioner found guilty of the charge and awarded punishment to undergo imprisonment for 40 days. After lapse of almost a year respondent No.5 came up with an order dated 14.02.2020 and further was pleased to annul the SFC trial proceedings holding that the same was illegal and the order passed was incongruous to the evidence adduced on record. By a letter dated 31.03.2020 addressed to respondent No.11, respondent No.8 sought for legal opinion regarding further course of action since the prior trial was annulled by respondent No.5. Respondent No.11 responded his instruction on 18.04.2020 stating that Bn. to take action as per direction of DIG, SHQ Ranidanga and must complete the proceeding immediately.

2.3. In furtherance to the order dated 14.02.2020 passed by respondent No.5 and after receiving instruction dated 18.04.2020 of respondent No.11, respondent No.10 framed an opinion and was further pleased to pass an order stating that the punishment of 40 days imprisonment awarded to the petitioner, for which the petitioner has already suffered incarceration, will be treated as duty for all purposes. However, with utter dismay, respondent No.6 came up with a fresh charge sheet dated 19.05.2020 lampooning upon the same set of allegations with new charges under Section 44(c) i.e., Miscellaneous Offences along with Section 43, i.e., violation of good order and discipline. Respondent No.6 vide his order dated 06.06.2020 again called upon for SFC on 23.06.2020 in respect of the self-same allegations upon which the earlier SFC trial proceedings were held and the petitioner was convicted. That the second SFC trial also got concluded on 23.06.2020, wherein the petitioner was yet again found guilty under Section 44(c) and Section 43 of the SSB Act, 2007 and awarded punishment for dismissal from services under Section 51 (1) (c) of the SSB Act, 2007.

2.4. Being aggrieved by the impugned order dated 23.06.2020 passed by the SFC Trial Court by holding the second trial, the petitioner preferred an appeal before respondent No.4. The said appeal was rejected and the Appellate Authority upheld the decision and the findings of